The case, Kulstad v. Maniaci (pdf), contains a striking concurring opinion from Judge James C. Nelson, who notes:

Maniaci and her defense team attempt to avoid the one issue that makes this case uniquely important—the elephant in the room:  whether homosexuals in an intimate domestic relationship each have the right to parent the children they mutually agree that one party will adopt (or, presumably, conceive).  The District Court and this Court have properly answered that question in the affirmative based on the facts of this case and on the statutory scheme discussed.  I agree with the District Court’s decision, and I concur with this Court’s decision.

It is a great day for equality in Montana.

Important to note that the Alliance Defense Fund was arguing, albeit unsuccessfully, against the recognition of the non-biological parent.

Martin Gill, with the two brothers he has raised for years and hopes to adopt. (Image from the ACLU Web site.)

Oral arguments were held on Wednesday in the ACLU’s state-court challenge to Forida’s adoption ban, In re: Gill, on which I reported earlier this summer.  The folks over at law.com, care of the Daily Business Review, have a great report on the case.  Jordana Mishory reports:

The state defended the gay adoption ban in general terms without attacking the suitability of Gill’s parenting in arguments before a three-judge panel and a standing-room-only crowd of more than 150 people.

. . . .

[The lawyer for the children] recited the list of state stipulations in the case: [The Department of Children and Families] agrees Gill would be a good parent. DCF agrees adoption by Gill would be in the best interest of the children. DCF allows gay parents to be legal guardians and foster parents.

“The father is a gay man. But that didn’t concern the state when they placed [the children] in his care,” he said.

Judge Gerald Cope Jr. said: “This is as far as I can tell the only absolute disqualification under the statute. How is that fair?”

As I noted in my earlier report:

The trial court opinion (pdf) contained a more-than-30-page evaluation of the factual record and expert witness evidence.  It then presented 56 stipulated, or agreed upon, facts — including that “[b]ut for Section 64.042(3), Fla. Stats. [sic], DCF [Department of Children and Families] would have approved Petitioner’s application to adopt John and James.”  In re the Adoption of John and James Doe, Final Judgment of Adoption, at 35.

The court, only after presenting all that information, made findings of fact and conclusions of law, in which it found a violation of the Florida Constitution’s Equal Protection rights of both the prospective parent and the children who would be disadvantaged by Florida’s ban on adoption by gay parents, as well as a statutory violation of the children’s rights.

The result of the appellate court’s decision whether to uphold Judge Cindy S. Lederman ruling that the ban is unconstitutional under Florida law is unlikely to be the last word, as the Florida ACLU’s lawyer acknowledged to me earlier:

If the appellate court upholds the trial court’s decision finding the ban to be unconstitutional, then Rosenwald said there will be an automatic appeal to the Supreme Court of Florida.  Even should the appellate court uphold the ban, which would make an appeal to the Supreme Court discretionary, [the director of the Florida ACLU’s LGBT Advocacy Project, Robert] Rosenwald[,] believes the court will take the case because “this case has the evidence that they had wanted in” the earlier adoption case it heard.

I’ll have more to report when there’s more to report.

[Thanks to @stevebeste for pointing me to Mishory's article.]

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.

Martin Gill, with the two brothers he has raised for years and hopes to adopt. (Image from the ACLU Web site.)

Robert Rosenwald — the director of the Florida ACLU’s LGBT Advocacy Project and Gill’s lawyer — said today in an interview with Law Dork that he is “optimistic” that the trial court decision finding that the ban violates the Florida Constitution will be upheld on appeal.

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).

The trial court opinion (pdf) contained a more-than-30-page evaluation of the factual record and expert witness evidence.  It then presented 56 stipulated, or agreed upon, facts — including that “[b]ut for Section 64.042(3), Fla. Stats. [sic], DCF [Department of Children and Families] would have approved Petitioner’s application to adopt John and James.”  In re the Adoption of John and James Doe, Final Judgment of Adoption, at 35.

The court, only after presenting all that information, made findings of fact and conclusions of law, in which it found a violation of the Florida Constitution’s Equal Protection rights of both the prospective parent and the children who would be disadvantaged by Florida’s ban on adoption by gay parents, as well as a statutory violation of the children’s rights.

This decision is noteworthy for its acceptance of the claims brought by the guardian ad litem in the case, the lawyer representing the interests of the child.  A key part of the trial judge’s ruling found that “[a] law such as the blanket ban on adoptions by homosexuals infringes on the foster child’s right to be free from undue restraint and to be expeditiously placed in an adoptive home that serves the child’s best permanency interests.”  In re the Adoption of John and James Doe, Final Judgment of Adoption, at 40.

The state, represented by Republican Attorney General Bill McCollum, appealed.

As the ACLU makes clear in its appellate brief, the purpose of an appellate court, is not to re-try a case.  It is, for the most part, to review only the legal determinations made by trial judges.  As the ACLU’s appellate brief for Gill states: “Factual findings can only be overturned if ‘totally unsupported by competent and substantial evidence.’”  In re: Matter of Adoption of X.X.G. and N.R.G., Answer Brief of Appellee F.M.G. (pdf), at 12.  It goes on: “This [appellate] Court cannot pick and choose . . . among bits of testimony and reweigh the evidence.” Id.

The state of Florida, however, does just that.  For almost its entire brief (pdf), the state re-lists what it viewed as its “best” facts before the trial court and re-argues why its facts should be the facts on which the appellate court relies to determine whether Florida’s adoption ban is valid.

Rosenwald was unsurprised by this line of argument.  “The state is in the unenviable position of making arguments that are unsupported by the facts,” Rosenwald said.  “The state would like the appeals court to disregard the factual findings of the trial court and make its own findings.”

In one of the few points of the brief where the state does argue about the law, it presents a standard that every lawyer will love.  In describing “rational basis review,” the general review a court gives to a legislative enactment, the state describes the review — whether the provision is  “rationally related to a legitimate state interest” — as “uber-deference.” In re: Matter of Adoption of X.X.G. and N.R.G., Initial Brief of Florida Department of Children and Families, at 24.

In the children’s brief responding to the state’s brief in the appellate court, lawyers for the children note: “Regardless whether Section 63.042(3) can pass constitutional muster against the Father’s equal protection challenges, it is an arbitrary infringement on the Children’s liberty, which is anathema to the Fourteenth Amendment.” In re: Matter of Adoption of X.X.G. and N.R.G., Answer Brief of Appellees X.X.G. and N.R.G. (pdf), at 37.

The arguments in the appellate case, which take place on Aug. 26, will be open to the public.  If the appellate court upholds the trial court’s decision finding the ban to be unconstitutional, then Rosenwald said there will be an automatic appeal to the Supreme Court of Florida.  Even should the appellate court uphold the ban, which would make an appeal to the Supreme Court discretionary, Rosenwald believes the court will take the case because “this case has the evidence that they had wanted in” the earlier adoption case it heard.

Further information on the case, including additional briefs and news releases, can be found here at the ACLU’s Web site.