A Stitch in Haste

“What does regulating marriages and adoptions have to do with human rights?”
–Florida State Senator Curtis Peterson, sponsor of Florida’s gay adoption ban, April 1977

“It is a conservative position to avoid passing needless laws by which the government meddles in the private lives of people.”
–Florida State Senator Dom Chamberlin, opponent of Florida’s gay adoption ban, April 1977

Two hefty decisions were recently handed down regarding gay adoption.

ITEM: The opinion by a family court judge that Florida’s statutory ban on gay adoption is unconstitutional has finally been published (in redacted form). After forty pages of (very useful) narrative, both of the case before him and of the legislative history of the 1977 ban (including the bigoted and vicious gay-bashing campaign by Anita Bryant that instigated it), the judge basically says, “See Lawrence v. Texas.”

Specifically, he notes that the Florida Constitution expressly forbids so-called “special laws” regarding several matters, including adoption. “Special law” is a euphemism for class-based discrimination (i.e., a law “relating to, or designed to operate on, particular persons … when classification is not permissible or the classification adopted is illegal”). Even using mere rational basis review, the court reasons, Lawrence makes classifying all gays as summarily unfit to adopt impermissible (i.e., an irrational classification). Irrational classifications are forbidden, hence the gay adoption ban is forbidden. QED.

The judge went on to note that not only does Florida’s gay adoption ban not serve any legitimate governmental interest in a post-Lawrence world, it actually interferes with another, very legitimate governmental interest: increasing the number of adoptions. What could be more “irrational” than that?

Next, the judge voids the ban as a class-based bill of attainder forbidden under the Florida Constitution. At the federal level, such a determination would be very dubious. At the state level, however, the reasoning may be perfectly valid; I can’t be sure.

Finally, the judge finds that the gay adoption ban, which essentially is a factual determination that no gay can ever be qualified to adopt under any circumstances, violates the separation of powers doctrine by stripping the family courts of their historical power to make such determinations on a case-by-case basis (i.e., as they do with every other adoption petition): “In enacting the categorical ban, the legislature has usurped the adjudicatory role of the courts.” Works for me.

Meanwhile, the Miami Herald is reporting that the Florida Attorney General has decided not to appeal the decision. That is of course wonderful news for the family, but it also means that the case will never be binding on other Florida courts and can only be used as “persuasive authority” at best. Of course, it also means that the ruling won’t be overturned. However, another gay adoption case, one that the state attorney general is indeed pursuing, is also before the Florida courts. Stay tuned…

The case is In the Matter of John Doe, Case Number Redacted (Monroe County, Florida, Juvenile Division, August 29, 2008) (PDF – 67 pages)

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ITEM: An unnecessarily sad fact pattern in Kentucky. A bit complicated, but here is the condensed version: A lesbian couple conceived a child via artificial insemination, with the non-biological parent solely responsible for selecting the sperm donor. It had always been the intention of both women that the non-biological parent would legally adopt the child, without the biological parent forfeiting any rights — much as a stepparent might legally adopt a spouse’s child from a previous relationship. After the child was born, however, the couple (amicably) split, but with both women agreeing that the non-biological parent should still adopt the child anyway. In other words, they were now trying to replicate, for the best interests of the child, not a stepparent adoption but rather a situation akin to two biological parents amicably divorcing with each maintaining joint legal custody.

Did I mention that it’s a bit complicated? All adoptions in Kentucky must be approved by the appropriate bureaucracy before a petition can be made to the family court — with one exception: stepparent adoption. For whatever reason, the couple attempted to bypass the bureaucratic step and to claim that their situation was the functional — and legal — equivalent of stepparent adoption, despite the fact that Kentucky forbids same-sex marriage (indeed, Kentucky has a “no nothing never” bigot amendment that bans recognition of any gay relationship). Disregarding the bureaucracy’s objection (both to the lack of an application to it and to the adoption itself), the family court granted the adoption petition.

Eventually, the two women’s relationship deteriorated and the biological parent sued to void the adoption altogether. Upon realizing what the family court judge had done, the appellate court was, to put it mildly, displeased:

The family court’s ruling that “this is a stepparent adoption” presupposes a factual determination that T was, in fact, Z’s stepparent. This was clear error. A stepparent is defined by one’s indirect legal relationship to a child. … Stepparent status requires a legal marriage to the child’s parent. We do not see how this elemental concept eluded the court below and can only conclude that it was knowingly ignored.
…
Instead, by holding that T was Z’s stepparent, the family court elevated the status of the relationship between T and S (who were no longer even cohabiting) to legal marriage. … We cannot ignore — and the family court should not have ignored — the fact that the parties’ relationship simply does not exist as a “marriage” of any kind. [Italics in original; underline added; citations and internal quotes omitted.]

In other words, the family court judge was engaging in judicial activism by ignoring the pesky fact that this couple was not and could not be legally married in Kentucky. And, quite frankly, the appellate court was right: the family court judge’s actions were disgraceful. “The end justifies the means” has no place in a courtroom.

Bottom line: Bigotry 1, Child 0.

(Well, maybe “Bigotry 2, Child 1″ — The appellate court in the end actually upheld this particular adoption, because the time limit for challenging it had already passed. But going forward, such legal maneuvers are clearly not going to be allowed.)

One last thought:

Diana Skaggs, president of the Kentucky Chapter of the American Academy of Matrimonial Attorneys, said the ruling will bar unmarried heterosexual partners from adopting, even if they provide all the love and caring that a married parent might provide.

When the bigots say, “it’s all about the children,” they lie.

The case is S.J.L.S. v. T.L.S., No. 2006-CA-001730-ME (Ky. Ct. App., September 12, 2008) (PDF – 61 pages).

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Previously:
–Florida Gay Adoption Ruling: Too Early to Comment
–PSA: New Report on Gay Adoption
–Who is “Shutting Down” Catholic Charities?
–Will the “Black Adoption” Controversy Spill Over Into Gay Adoption?
–Will the Bigots Also Distort “Happy Kids” Research?
–Linkfest: Two Gay Rights Victories (Oklahoma anti-gay adoption law struck down)

Filed under: Gay Rights and Issues, Law, Politics, Society, Religion, Culture Wars