Declaring unconstitutional a 30-year old state law prohibiting gay men and women from adopting children in Florida, a Circuit Court there recently concluded that Florida should no longer be the only state with a blanket ban of this kind. In the Matter of the Adoption of John Doe and James Doe came before the Court on a petition for adoption of two foster children by a gay man who had raised the children since 2004. 

The second Florida Court this year to declare the law unconstitutional, the Court declared that the law violated both the petitioner’s and the children’s equal protection rights guaranteed by the Florida Constitution without setting forth a rational basis. The Court also declared that the law unlawfully prevented a child’s right to permanency as provided by federal and state law pursuant to the Adoption and Safe Families Act of 1997. In so doing, the Court rejected the State’s arguments that the law served the best interests of children because homosexuals allegedly experienced higher levels of stressors detrimental to children; that such adoptions did not minimize children’s social stigmatization; and that the law protected a child’s societal moral interests.

 

Notably, Florida Attorney General Bill McCollum stated shortly after the decision’s release that it would be appealed, on behalf of the Department of Children & Families, to the Third District Court of Appeal in Miami. 

 

Relatedly, nearly 57% of voters in Arkansas just approved Proposed Initiative Act No. 1, which strictly bans people who are “cohabitating outside a valid marriage” from serving as foster parents or adopting children. Despite its non-sex specific language, the law effectively achieves that which was declared unconstitutional in Florida – namely, banning gay people from acting as foster parents or adopting children despite the need for such parenting of children in the state system. This new law is similar in nature to one in Utah, as well as a similar one in Mississippi that bans gay couples, but not single gay people from adopting children.

In New Jersey, the Appellate Division has held that adoptions by gay individuals can be in a child’s best interests. In Adoption of Two Children by H.N.R., 285 N.J. Super. 1 (App. Div. 1995), the Appellate Division expressly held that New Jersey’s adoption laws permit the adoption of children by the same-sex cohabitating partner of their natural mother without terminating the mother’s parental rights and that such adoption was in the children’s best interest in the matter before it. In so holding, the Appellate Division noted that the adoption statute is to be liberally construed to promote the best interest of children pursuant to N.J.S.A. 9:3-37 and that the statute is silent as to joint adoption by unmarried persons or adoption by an unmarried cohabitant of his or her partner’s child with the partner’s consent. It also noted that the couple, who had been in a committed relationship for more than ten years, and the children at issue functioned together as a family and that it would be against the children’s best interests to deny them the legal and financial benefits that a legally recognized adoption would provide. 

 

 

  • Gibson/Simon

    If it is unconstitutional to not allow them to adopt then why is it constitutional to not let them marry.