As noted earlier, the U.S. Department of Justice took a strong stand today for LGBT equality in at least one portion of its brief in Smelt v. United States, the portion related to LGBT parenting. Coincidentally — or not — the appeal of an adoption case where the trial court decision favored gay parents is due to be heard in a Florida courtroom next week. The lawyers for DOJ today wrote:
Unlike the intervenors here, the government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman (Doc. 42 at 8-9). Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.7 Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because “the sterile and the elderly are allowed to marry.” For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.
Martin Gill, with the two brothers he has raised for years and hopes to adopt. (Image from the ACLU Web site.)
The immediate question this raised for me was whether this language could find its way down to Florida, where the court of appeals will soon be hearing the appeal of In re: Gill, a challenge to Florida’s ban on adoption by gay people. As I discussed in a preview of the case last month:
The case, the appeal of which will be heard on August 26 by the Third District Court of Appeals in Miami, was heard at trial by Judge Cindy S. Lederman, then-chief of the Juvenile Division. Notably, the case included extensive presentation of evidence about the foster children’s circumstances and, more generally, expert witness evidence regarding children raised in families headed by lesbian or gay parents. Rosenwald said such evidence had not been present in either an earlier state court adoption case or a five-year-old federal case challenging the Florida adoption ban. See Cox v Dep’t of Health and Rehabilitive Serv., 656 So.2d 902 (1995); Lofton v. Sec’y of Dep’t of Children and Families, 358 F.3d 804 (11th Cir. 2004), cert. denied, 535 U.S. 1081 (2005).
Regardless of their consideration here, the DOJ statements certainly will be included in briefing for the likely appeal before Florida’s Supreme Court.
This adoption case quickly shows the potential value of the Department of Justice’s refutation of the outdated arguments against gay parenting in its Smelt reply brief earlier today.
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Chris Geidner is a lawyer in Washington, D.C., who writes at Law Dork, is the senior political writer at Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications. An extended biography can be found
Now let me get this righrt. Afaik, no politician that I can recall, however strong they have been for gay rights, has specifically argued in favor of gay adoption. The demonstrations that gay parents are as suitable as striaght parents have been made in journal articles, in law suits, by activists, and even on television, but I would appreciate if anyone can point to a politician having made these arguments (instead of treating the topic as too much of a hot button topic — given the paranoia about ‘gays and children’ — to go near, as assuming it will only lose them votes, not gain them).
And yet, here is that homophobic DOJ — ordered by the ‘backstabber’ Obama — stating as both fact and governmnt policy the position Chris quotes above.
More importantly, he made this statement when, had he remained silent, had he merely refused to address the intervenor’s brief, or had he merely stated that ‘we do not support the argumentregardng biological parenting in their brief’ no one would have been offended. He didn’t have to take this position, he didn’t have to state it this strongly.
And yet he did. And, may I remind you, at a time when his signature issue — health reform — is embattled, his voluntary end-of-life counseling is being portrayed as ‘mandatory panels that want to kill Grandma’ and, as Steve Benen reports today, pre-natal home nursing visits (included at the bill at the behest of spcial conservatives) are being portrayed by the same social conservatives as “We are setting up a situation where Obama will be invading parent’s [sic] homes and taking away their children.”
If ever there were a time when he could be excused for not taking on a proposition that would be controversial without givinbg the Republicans a need to lie about it, it was now. And yet we have the strongest position on this topic possible.
And still there are those who condemn him.
*sigh*