Florida – 2 things done correct in one month? Wow! Florida is on a roll!

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So, Florida has decided to remove the ban on gay adoption!!!!

I am a busy law student, so I feel that I should just post the excellent composition Arthur Leonard has prepared:

Here’s the draft he submitted to Gay City News for this week’s issue:

For the second time in just a few months, a Florida trial judge has ruled that the state’s statutory ban against adoption of children by “a homosexual” is unconstitutional. Ruling on November 25 on an adoption petition by Frank Martin Gill, a North Miami man, to adopt half-brothers John and James, age 8 and 4, for whom he has served as a foster parent together with his partner for the past four years, Miami-Dade Circuit Judge Cindy S. Lederman held that the statutory ban violates the equal protection requirement of the Florida constitution and directly contradicts the state’s articulated policy of seeking “permanent placements” for children. In the Matter of the Adoption of John Doe and James Doe, [Case No. Redacted] (Fla. 11th Dist. Cir. Ct., Nov. 25, 2008).

The ACLU of Florida and the ACLU LGBT Rights Project represent Gill, including litigation team members Robert Rosenwald, James Esseks, Leslie Cooper, and Shelby Day. The children were represented by volunteer attorneys from Hilarie Bass and Ricardo Gonzalez from Greenberg Traurig and Charles Auslander.

This Miami ruling followed an August 29 ruling from Key West by Circuit Judge David J. Audlin, Jr., who also rejected the statutory ban and approved an adoption by a gay petitioner. For reasons that remain obscure, the state took no action to appeal that ruling, but a news report on the Miami-Herald website shortly after the decision was released indicated that the state planned to appeal Judge Lederman’s decision.

The appeal has everything to do with politics and nothing to do with the merits of the case, since the appeal announcement came immediately upon the release of Judge Lederman’s 53-page opinion, when attorneys for the state could not possibly have had time to carefully read and analyze the ruling. “We respect the court’s decision,” said Assistant Attorney General Valerie Martin to the Miami-Herald. “Based upon the wishes of our client, the Department of Children & Families, we will file an appeal.” In other words, nothing the court could say would sway the Department from its political mission to defend the statutory ban. Thus, the state agency charged with protecting the best interest of children exhibits its lack of concern with those best interests.

Judge Lederman’s opinion carefully describes the situation confronted by young John and James when they were first placed with Gill and his partner. John, then four, was virtually mute, totally devoted to looking after his infant half-brother and totally unable to trust any adult after the neglectful care he had experienced. Both children had medical problems for which medicines had been prescribed but not administered by their neglectful parents, from whom they had been taken by the state. Judge Lederman describes how both boys flourished under the loving, firm guidance of Gill and his partner. The men decided that only Gill would petition to adopt, assuming that attempting a joint adoption in the face of Florida’s statute would be doubly difficult.

The trial presented Judge Lederman with numerous experts, some testifying live and some by affidavit. The state’s case seemed to be based on arguing virtually every stereotype about the lives and partnerships of gay people, attempting to convince the court that gays are depressive, suicidal, pedophiles, addicts, prone to short life spans and a succession of short relationships, all of which would present adverse conditions for raising children. Of course, to find an “expert” to present such testimony, they have to scrape the bottom of the barrel and come up with people whose credentials end up being more theological than anything else, relying on spurious studies inspired by “faith” rather than facts.

The state’s primary expert was Dr. George Rekers, identified as a Clinical Psychologist and Behavioral Scientist from Miami, without academic affiliation, who is an ordained Baptist Minister. Rekers based his testimony heavily on the discredited publications of the notorious Dr. Paul Cameron and others of his ilk. At one point, the judge characterized his testimony as “contrary to science and decades of research in child development,” and she concluded that “Dr. Rekers’ testimony was far from a neutral and unbiased recitation of the relevant scientific evidence. Dr. Rekers’ beliefs are motivated by his strong ideological and theological convictions that are not consistent with the science. Based on his testimony and demeanor at trial, the court can not consider his testimony to be credible nor worthy of forming the basis of public policy.”

The state’s other expert, a Kansas State University associate professor named Walter Schumm, fared little better, and actually helped to make the petitioner’s case, testifying that a categorical ban on gays adopting children, as maintained in Florida, was not warranted by the facts, and that adoption decisions should be made on a case by case basis.

By contrast, Gill’s attorneys presented several experts holding distinguished academic positions and relying on peer reviewed scientific publications, as well as experts with long experience administering governmental child welfare programs, all of whom agreed that gay people are capable of making fine parents who can raise physically and mentally healthy children. Judge Lederman’s factual findings completely refuted the state’s experts, concluding that “it is clear that sexual orientation is not a predictor of a person’s ability to parent. Sexual orientation no more leads to psychiatric disorders, alcohol and substance abuse, relationship instability, a lower life expectancy or sexual disorders than race, gender, socioeconomic class or any other demographic characteristic.”

She pointed out that there is now a consensus among professionals in the fields of psychology and child development, based on long-term studies involving thousands of children, that parental sexual orientation is not relevant to a person’s qualifications to be a good parent. “As a result” she wrote, “based on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.”

From this conclusion, Judge Lederman proceeded logically to the conclusion that a state policy disqualifying prospective adoptive parents based on their sexual orientation was irrational and thus violated the constitutional guarantee of equal protection to both children and prospective adoptive parents.

“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,” she wrote. “Indeed, a law that subverts judicial process and imposes on the court the burden of taking action harmful to the child should be immediately suspect because the injury it imposes contradicts the legislative purpose and constitutional basis of the child’s having been taken into custody by the State in the first place.”

“The Department argues [that the adoption ban] is rationally related to Florida’s interest by protecting children from the undesirable realities of the homosexual lifestyle. However, as thoroughly summarized in the Findings of Fact section of this Final Judgment, the foregoing is, frankly, false,” the judge asserted.

The judge specifically rejected all the justifications argued by the state, including the assertion that the state’s responsibility for the “morality” of children justified the ban, which was clearly contradicted by the state’s willingness to put children into a quasi-permanent foster relationship with gay people.

“The Department’s position is that homosexuality is immoral,” Judge Lederman commented. “Yet, homosexuals may be lawful foster parents in Florida and care for our most fragile children who have been abused, neglected and abandoned. As such, the exclusion forbidding homosexuals to adopt children does not further the public morality interest it seeks to combat…. The contradiction between the adoption and foster care statutes defeats the public morality argument and is thus not rationally related to serving a governmental interest.

The judge concluded that the statutory ban “violates the Petitioner and the Children’s equal protection rights guaranteed by Article I, Section 2 of the Florida Constitution without satisfying a rational basis. Moreover, the statutory exclusion defeats a child’s right to permanency as provided by federal and state law pursuant to the Adoption and Safe Families Act of 1997.” She declared that the adoption of John and James would be effective immediately, as both the Guardian ad litem and the state workers who had processed this case were agreed that Gill was well qualified to be a parent, the only obstacle to adoption being the now-discredited statute.

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