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.

In Florida, Sen. Mel Martinez, who already announced he will not be running for re-election in Florida in 2010, announced today that he will be resigning from the Senate as soon as a successor is named.  The day after being one of nine Republicans to cast an “aye” vote for the Supreme Court nomination of Sonia Sotomayor setting up the political fun that we’ve come to expect from Florida.  The current governor, Charlie Crist, already has announced he’s running for Martinez’s Senate seat.  From the Miami Herald:

In an extraordinary turn of events, Gov. Charlie Crist, the leading Republican to replace Martinez in the U.S. Senate, will have the power to appoint someone to fill the remainder of Martinez’s term.

Crist has denied that he’d appoint himself. He’s expected to make an announcement on a fill-in before the end of the August recess when the Senate returns to Washington. Some names already surfacing: former Sen. Connie Mack, former Gov. Bob Martinez and former Secretary of State Jim Smith.

Some speculate that Crist might step down as governor, thereby elevating Lt. Gov. Jeff Kottkamp, who could then appoint Crist to the Senate.

Gov. Crist (R-FL)

The Note reports that Crist will not be naming himself to the Senate seat, which — technically — leaves open the possibility of his resigning and being named by his successor.

The name missing from any mention, of course, is Marc Rubio, who is running against Crist — and to his right.  Rubio himself put out a rather interesting statement.  He said: “Florida deserves an interim senator who will go to Washington and serve as a true check on President Obama’s push for more wasteful government spending, government-run health care and cap-and-trade.”  The implication, obviously, is that the person who takes over will only be there until Rubio has a chance to run.  Keeping this as an interim position, of course, is in Crist’s interest as well (so long as it is not Crist himself), so Rubio likely is right that it will be such.

Sen. Collins (R-ME)

The other senatorial news comes from Maine, where Sen. Susan Collins announced that she is not taking a position on the referendum in Maine to repeal the marriage equality bill passed by the legislature earlier this year.  From The Washington Blade:

Sen. Susan Collins, a Republican, told the Blade on Thursday during a brief exchange on Capitol Hill that she’s not taking a side on the “people’s veto.”

Asked whether she would be taking a position on the referendum, Collins replied: “I’m not. I don’t get involved in state issues.”

Again, the “leadership” in the Senate on LGBT issues leaves much to be desired — and this cop-out coming from one of the two Republican sponsors of the Employment Non-Discrimination Act in the Senate.

Collins could, of course, change her position on this, and here’s to hoping Maine activists are able to convince her to do so.  In the absence thereof, there’s going to be more than a little consternation at Collins from the LGBT world.

Once you’re legislating from a state where the elected legislature has passed marriage equality, it really changes the standard for what is expected of federal officeholders.  Not to get into a Seventeenth Amendment diatribe, but it’s interesting to note that — in the past — the state’s representation in the U.S. Senate would have been the decision of the state legislature.

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.

The Florida Supreme Court ruled on Friday that Governor Charlie Crist (pictured), violated the state Constitution when he refused to fill an appeals court vacancy because all of the potential picks are white. Click here for the story, from the Miami Herald.

The somewhat strange outcome seems to have been largely the product of state constitutional procedure. ”The governor lacks authority under the Constitution to seek a new list of nominees from the JNC and has a mandatory duty to fill the vacancy,” Justice Jorge Labarga, a Crist pick, wrote on behalf of the court. ”While we applaud the governor’s interest in achieving diversity in the judiciary — an interest we believe to be genuine and well-intentioned — the Constitution does not grant the governor the discretion to refuse or postpone making an appointment to fill the vacancy on the Fifth District Court of Appeal.”

So, he was a pro-stimulus politician who campaigned for the package with President Obama — and he’s willing to go to court to fight for diversity.  And, he’s in the South.  Doesn’t really sound too outside the realm of possibility that his primary challenge from the Right could start to get Specter-tricky.  As with Markos, I’m not excited about this prospect — but it does seem within the realm of possibility.