Tuesday, September 28, 2010

The Florida Ruling: "No Rational Basis for the Statute"

When the Third District Court of Appeal for the State of Florida ruled last week that Florida's ban on gay adoption is unconstitutional, something interesting happened. In the unanimous ruling, not only did the appeals court state that gay parents wishing to adopt are being denied their equal protection rights as well as their right to due process, the appeals court stated that no amount of actual proof exists that suggests homosexual parents are any less capable than their heterosexual counterparts.

In the opinion, penned by Judge Gerald B. Cope, Jr., the Court summarized the case as follows:
"Under Florida law, homosexual persons are allowed to serve as foster parents or guardians but are barred from being considered for adoptive parents. All other persons are eligible to be considered case-by-case to be adoptive parents, but not homosexual persons-even where, as here, the adoptive parent is a fit parent and the adoption is in the best interest of the child."
The case arose when a gay foster parent sought to legally adopt two young boys that had been placed in his care by the Florida Department of Children and Families (FDCF). Despite the FDCF offering numerous "expert" witnesses that insisted that children raised by homosexual parents are more susceptible to questioning their own sexual orientation, more at risk of encountering domestic violence, and are more likely to experience the break up or dissolution of their family, the Court found no proof to support FDCF's claims. FDCF was supported in their appeal by numerous fundamentalist Christian, homophobic, bigoted, far-right "family councils" that had supported this law for it's thirty-three years of existence.

The problem with bans like the Florida one, other than the obvious problem of discrimination and intrusion on constitutional rights, is that there aren't enough homes for all of the children that need homes desperately. Before states like Florida rule out the opportunity for a segment of the population to adopt, there are already far more children needing homes than there are adoptive families. We have a crisis in this country when it comes to our children and yet states like Florida, Utah, and Arkansas refuse to allow capable, loving parents to adopt children who would otherwise spend their lives in foster care.

Florida understands this; At least to the extent that they leave the door open for several segments of their population to adopt. Florida allows for the following parents to adopt on a case-by-case basis and in most cases pride themselves on not automatically discriminating against these groups: Parents with a prior criminal history including for assault, battery, drug crime, & other felonies; Parents with physical disability or handicap; Parents with chronic medical conditions (including those who are HIV positive); and unbelievably, parents with verified findings of abuse, neglect, or abandonment. Florida does not discriminate against single parents or against anyone on the basis of sex, color, or national origin. Florida attempts to keep the door open for as many successful adoptions as possible in almost every other case except for those that involve gays.

Like Florida, Arkansas has a law on the books that bans gays from adopting. Like Florida's law, the Arkansas law is currently being challenged in the courts. Even more extreme than Florida's law, Arkansas passed legislation in 2008 that would prevent any unmarried, cohabiting couple from adopting. The proponents of the Arkansas Adoption Act wanted to ban gays from adopting so badly that they didn't mind trampling on the rights of the completely heterosexual, unmarried couples in the state who wished to adopt as well. In the lead-up to the 2008 election, the Family Council Action Committee and other organizations that supported the Arkansas Adoption Act campaigned on their misled belief that the law wasn't about taking away the rights of adults, but was about protecting the rights of children. As many believed and said then, the state would rather have children living in foster care their entire lives than have them living in loving, stable homes with gay parents.

While Judge Christopher Piazza of the Pulaski County Circuit Court upheld the state of Arkansas' right to go forward with the ballot initiative banning gay adoption in 2008, he ruled as follows:
"Initiated Act 1 prohibits cohabiting same-sex couples and heterosexual couples from becoming foster or adoptive parents. It does not prohibit them from becoming foster or adoptive parents if they do not cohabitate. However, the act significantly burdens non-marital relationships and acts of sexual intimacy between adults and forces them to choose between becoming a parent and having any type of meaningful intimate relationship outside of the marriage. This infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas."
Though the Florida ruling avoided discussion of the right to privacy, the Arkansas ruling hinged on it. What the two rulings have in common is this: The legal battle surrounding gay adoption appears to have completely ignored the squawking from organizations like the American Family Association, Focus on the Family, and in the Arkansas case, the Family Council Action Committee, who have repeatedly said that homosexual parents are not equal to heterosexual parents (a claim that has been proven wrong time and time again).

This revelation is as much a victory for gay rights and the welfare of the nation's children as the actual court rulings are.

The welfare of the nation's children is a topic often in the news lately. Our children are facing a growing crisis in this country, one that cannot be ignored. The recent news about the number of children living in poverty is only one in many unsettling aspects of the crisis our children are facing. Let's talk about poverty first. The numbers are horrific:
"Worst of all, children, our most vulnerable group, experienced the steepest rise in poverty and the largest single-year increase since the 1960s. After dropping twenty-four percent between 1992 and 2000, the number of children in poverty increased more than one-third between 2000 and 2009. An additional 1.4 million children swelled the ranks of poor children to 15.5 million children -- more than one in five children. This almost ten percent increase in child poverty over 2008 is shameful, disturbing, and threatening news for millions of our nation’s children -- unless our nation addresses their human emergency needs."
As of 2008, Arkansas ranked 40th in infant mortality, 47th in child deaths, 42nd in teen deaths, 44th in child poverty, and 39th in child abuse deaths. From the same study, Florida ranked 48th in uninsured children, 48th in juvenile incarceration, and 41st in child abuse deaths. Utah, another state that has laws on the books that prevent gays from adopting, ranks 43rd in uninsured children. What these rankings mean:

Clearly, whatever system these states have for caring for their children isn't working. Is preventing a broader pool of potential adoptive parents from caring for these children really the best idea? Obviously not.

In the period prior to 2008, 5 children died per day from abuse or neglect (a total of 10,440 children in the U.S. are known to have died from abuse and neglect between 2001 and 2007). In a recent report from the Every Child Matters Education Fund, during the period from 2001-2008, 134 children in Arkansas died due to child abuse and neglect. During the same period, there were 970 child abuse or neglect fatalities. In Utah, 91 children died. Unfortunately, most of these stories are often never told to the public because of restrictive confidentiality laws that shield us from knowing the failures of our country's child protection services. For every child like Idaho's Robert Manwill, there are sadly dozens more.

Children need loving, stable homes to succeed. In the crisis that faces today's children, one caring home could make the difference. Banning an entire subset of potential parents from adopting is not only wrong, it is feeding the crisis. If a kind, caring couple wishes to adopt a child, create a safe environment for that child and ensure that child has everything he or she needs to succeed, what difference does it make if that couple is homosexual or heterosexual? It shouldn't make a difference at all and finally our nation's courts are saying so.

The Florida ruling, which will more than likely be appealed and eventually gain an audience with the Florida State Supreme Court, is only one in a series of court rulings that stand to challenge the discrimination in this country that our local, state and federal governments refuse to address through lawmaking. In the first two decades of the twenty-first century, we could potentially see the overturning of the military policy that prevents gays from serving openly, we could see several states move to strike down laws that prevent gays from adopting, and we could see Prop. 8 (the ban on gay marriage in California) overturned by the U.S. Supreme Court. As much as we need skilled and dedicated soldiers whose sexual orientation is not an issue to serve in our military and as much as we need to remain true to the founding principles of equality that this nation has spent its existence striving for, our children are important too and we must give them every possible means to thrive.

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