I was asked to appear on a CNN owned network (Tru TV, formerly Court TV) yesterday to comment on the rights (or lack of rights) homosexuals have to adopt and/or seek custody or visitation with children. It was an interesting show, and while preparing for it, I learned a bit more about Florida’s law. Florida’s statute actually forbids adoption by anyone engaged in homosexual activity. Apparently, if one is homosexual, but not “engaging in homosexual activity” the ban does not apply. Well guess what? As a divorce lawyer I am confident there are many heterosexual couples no longer engaging in heterosexual activity. In other words, the distinction Florida seems to draw is between homosexuals who have sex and those who don’t.
Recent court decisions have upheld Florida’s law saying basically that the legislature could have rationally believed that such a law was based on a legitimate government objective. That objective was to place children in an environment where there was a legitimate chance for them to end up in a “typical” home with a mother and father, since a gay adoptive parent was unlikely (and in Florida, unable) to marry someone of the opposite sex. This theory of course, omits the possibility that a gay man may decide to coparent with a woman with whom he is friends, or that a single heterosexual may never marry, thereby leaving the child to be raised by one person, when two people might be able to raise the child with twice the love, twice the time and twice the resources to give the child.
But the law may soon change. In the case of In Re Gill, a foster parent was allowed by the trial court to adopt children for whom he had provided foster care. The case is on appeal and oral arguments were held last August. A decision could be made any day. It will be interesting to see what happens, but the national trend seems to favor allowing adoption, regardless of sexual preference.