Trial judge finds Florida gay adoption ban unconstitutional

[JURIST] A trial judge in Key West has found Florida's law preventing gay and lesbian [JURIST news archive] people from adopting children to be unconstitutional and has issued an order [PDF text] permitting a foster parent to adopt a 13-year-old boy. Judge David J. Audlin Jr. of the Monroe County Circuit Court [official website] ruled that the 1977 statute [text] violates both the US Constitution and the Florida Constitution [text] because it acts as a bill of attainder intended "to repress gay Floridians as a group" and violates the separation of powers doctrine by precluding judicial discretion. As part of the 67-page final judgment of adoption, released Thursday, Audlin wrote:

The Court finds the foregoing facts to be true: (a) The fact that Petitioner is a gay man is irrelevant to his skills as a parent and his fitness to adopt. Irrespective of Petitioner's sexual orientation, it is in the minor's best interest to be adopted by Petitioner, (b) Floridians who are gay or lesbian are not for that reason inherently incapable of parenting an adopted child, (c) In view of the less restrictive alternative safeguards that exist, there is no need for categorical disqualification of all gays and lesbians in Florida from adoption to ensure that no child is adopted by an inappropriate caregiver, and (d) After having listened to and read the legislative history surrounding the enactment of SB 354, the Court finds that there was no non-punitive purpose for categorically excluding every single gay and lesbian Floridian from adopting children.
The adoptive father and his partner have cared for the boy, who has learning disabilities, since 2001. Because they have been the boy's permanent guardians since 2006, the Florida Department of Children & Families [official website] has taken no position in the case. The Florida Attorney General's Office [official website] has likewise declined to intervene, although Audlin's order allows the state to appeal. The Miami Herald has more. The Key West Citizen has local coverage.

The Florida statute has undergone previous constitutional challenges based on legal theories not at issue in the Key West case. The US Court of Appeals for the Eleventh Circuit upheld it [opinion, PDF] in 2005 as being rationally related to protecting children's interests, and the US Supreme Court declined to review [Washington Post report] that decision. Florida and Mississippi [JURIST news archives] are the only US states which ban such adoptions, although the Arkansas secretary of state last month certified a ballot measure [JURIST report] which would prohibit gays, lesbians and other unmarried cohabiting couples from becoming either foster or adoptive parents.

 

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