Annual Update 2009 - Parenting

Martin Gill and Attorney Rob Rosenwald

On November 25, a juvenile court judge granted our client Martin Gill’s petition to adopt two young children he and his partner had been raising as foster parents for the past four years. In granting the petition, the judge ordered that the boys, known as John and James Doe in the court papers, be declared the legal children of Martin “now and forever” and be given their father’s surname.

This would have been unremarkable but for the fact that Martin is gay and lives in Florida, where the law deems all gay people inherently unfit to be parents. Florida law declares: “No person eligible to adopt . . . may adopt if that person is a homosexual.” In order for Martin to be able to adopt John and James, we would have to take on that statute. The ACLU had been down that road before.

In the early 1990’s, the ACLU brought three challenges to this notorious law in Florida state court on behalf of gay and lesbian Floridians who were seeking to become adoptive parents. While the results at the trial courts were mixed, none of those cases resulted in an appellate court decision invalidating the statute. Only one of these cases made it to the Florida Supreme Court, which upheld the statute.

Then the ACLU met Steven Lofton and his family. Steven and his partner, Roger Croteau, had been long-term foster parents to three Florida children, at that point aged 11, 11 and 8. Steven and Roger, who were pediatric nurses, were asked to take care of these children when they tested positive for HIV as infants. Despite raising these children as their own for many years, they were unable to give them the sense of stability that comes with being adopted because of the Florida law. So in 1999, we tried again, this time turning to federal court and arguing that the law violated the federal constitution. The case was also joined by Wayne Smith and Daniel Skahen, who had also been long-term foster parents to two young children, and Doug Houghton, who had been the legal guardian of a child at the request of the boy’s biological father years earlier.

In the Lofton case, the federal district court dismissed our claims before trial and a three-judge panel of the court of appeals affirmed in a shocking opinion that accepted as a sufficient justification for the law the “unprovable assumption” that children are best off with a married mother and father. It did not matter to the court that there was no evidence presented in the case to support the assumed superior parenting of heterosexual couples. Our request for review by the full court divided the court six to six, a heartbreaking one vote shy of the seven votes we needed for it to hear the case.

Martin Gill with the children he hopes to adopt.

Shortly after the Lofton case concluded with the Supreme Court declining to take the case we got a call from Martin Gill. He called the ACLU because John and James, who had become bonded with Martin and his partner after years in their care, were about to become free for adoption. That meant, under Florida law, the state would have to seek a new family that would be eligible to adopt the boys. James was an infant when placed in Martin’s home and this is the only family he has ever known. John was four at the time and had already suffered the loss of being separated from his biological family. He was so traumatized when he arrived in Martin’s home that he didn’t speak at all. He was depressed and distant for a long time. Just when he was finally overcoming that loss and beginning to bond with his new family, he could have to be uprooted once again. The thought that John would have to be put through the loss of another family was unbearable to Martin and his partner (who is using a pseudonym in this litigation to protect the privacy of his biological son, who shares his name). Martin asked the ACLU if there was anything we could do.

There were still some claims under the Florida Constitution that had not been decided by the Florida Supreme Court and we were committed to doing everything possible to do away with this destructive law. And of course we were moved by Martin’s story. So we filed a petition to adopt on his behalf in Florida juvenile court. We argued that the gay exclusion cannot be a basis to deny Martin’s petition because that law is unconstitutional. John and James were represented by separate counsel who argued that the law violates their constitutional rights as well.

During the course of the litigation, the Department of Children and Families (DCF) agreed that Martin and his partner are providing a good home for John and James, that this placement is in their best interests, and that the boys are bonded to their foster parents. Indeed, DCF said it would have approved Martin’s application to adopt John and James but for the statute prohibiting it from doing so.

A representative from DCF testified that gay people and heterosexuals make equally good parents and that the exclusion does not benefit children in any way, and in fact, eliminating the ban would serve children’s interests. If the ban were lifted, she testified, more children could be adopted out of foster care.

Despite these admissions by DCF, the agency responsible for child welfare in Florida, the State’s lawyers put on expert witnesses who offered an outlandish menu of justifications for the exclusion. They argued primarily that the exclusion is warranted because gay people are prone to problems like psychiatric disorders, drug abuse, and unstable relationships. They also asserted that gay parents cause their children to be gay and that gay people should be excluded from adopting because society is prejudiced against them and their children might be exposed to that prejudice.

In response, we presented the testimony of leading experts in the fields of developmental psychology, child abuse, epidemiology, couple relationships, human sexuality and child welfare to explain the relevant scientific research and that the opposing experts’ arguments have no empirical support.

The court determined based on the evidence presented that children of gay parents do just as well as their peers and that this is accepted as a matter of consensus in the relevant professional fields. Given the quantity and reliability of the research, the court deemed the issue of the suitability of gay parents “far beyond dispute”. The court also rejected the assertion that children’s sexual orientation is determined by the sexual orientation of their parents. And it found that children of gay parents are hardly the only children who may be exposed to prejudice because their families are different than others. The court also said the scientific evidence showed that sexual orientation no more correlates with psychiatric disorders and the other problems asserted by the State’s experts than other demographic characteristics such as race and socioeconomic status. Finally, the court said, the evidence shows that, in fact, the ban “causes harm to the children it is meant to protect” by depriving some children of permanency with their caregivers and leaving more children with no family at all. Thus, the court concluded, “the best interests of children are not preserved by prohibiting homosexual adoption.”

Based on these facts, the court struck down the exclusion as a violation of Martin and the children’s constitutional right to equal protection as well as the children’s right to permanency and granted the petition to adopt.

The State has appealed the juvenile court’s decision. But we are confident that after fighting this terrible law for nearly 20 years, it is finally falling once and for all. The juvenile court determined based on the scientific evidence that every justification for the law put forth by the State is factually untrue and that the law is detrimental to children in the foster care system. That means the State can only prevail if it can convince the appellate courts that the truth about gay parent families and the law’s damaging effects on children is beside the point. We have faith that the courts will rule based on the evidence.

Florida’s ban on adoption by gay people was never actually about protecting children. It was enacted in 1977 as part of Anita Bryant’s infamous campaign against the gay community after Miami Dade’s historic enactment of a sexual orientation anti-discrimination ordinance. Hopefully a victory in this case in Florida’s appellate courts will not only get rid of the Florida law but will also put an end to politicians everywhere allowing their desire to condemn gay people to trump the interests of children who desperately need families. With proposals to restrict adoption and fostering by gay people continuing to be introduced in state legislatures, putting the nail in the coffin of Florida’s notorious law can’t come too soon.