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Florida DCA Rules State Law Prohibiting Homosexuals From Adopting Is Unconstitutional

On September 22, 2010 the Third District Court of Appeal in an unprecedented opinion held that Florida Statute 63.042(3) is unconstitutional as the classification does not have a rational relationship to the governmental objective.  That statute states: “No person eligible to adopt under this statute [the Florida Adoption Act] may adopt if that person is a homosexual.  Florida Dept. Children & Families v. In re: Matter of Adoption of X.X.G. and N.R.G.

The trial court found, and the parties agreed by stipulation, that the adoptive father was a fit parent and that adoption was in the best interests of the children.  The children had been abandoned and woefully neglected by the natural parents whose rights were subsequently terminated.  The adoptive parent served as a foster parent to the children and was greatly successful in healing the children and contributing to them thriving.  In fact DCF agreed that gay people and heterosexuals make equally good parents.  The trial court’s opinion declared the statute unconstitutional and a violation of the equal protection rights of the children and the foster parent under Article I, Section 2 of the Florida Constitution.

The parties presented considerable evidence at the trial level as well as experts who testified to: break-up rates of heterosexual couples compared to homosexuals; domestic violence studies; rates of psychiatric conditions, substance abuse and smoking rates for heterosexuals compared to homosexuals. The Appellate Court agreed with the Trial Court’s analysis that there was not an overwhelming difference in the rates, and that sexual orientation is not the sole demographic characteristic that impacts these issues as race, gender, age and socioeconomic status also play a role.

In its analysis, the Court noted that homosexual persons are not prohibited by any state law or regulation from being legal guardians of children in Florida under Chapter 744, Florida Statutes. Moreover, there is no law prohibiting a homosexual person from serving as a foster parent on a temporary or permanent basis.  Therefore, where was the ‘rational basis’  for imposing a blanket prohibition on adoption by those same people?  The Court concluded there was no rational basis and did not certify the question as being of great public importance because DCF has the right to appeal to the Supreme Court of Florida.

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