ATLANTA (BP)–A divided 11th Circuit Court of Appeals upheld Florida’s ban on homosexual adoption July 21, leaving intact the toughest such law in the nation.
The lawsuit, brought by the American Civil Liberties Union, may end up before the Supreme Court. The ACLU said it is reviewing its legal options.
In a 6-6 vote, the appeals court refused to reverse its earlier decision from January when a three-member panel unanimously upheld the Florida law and said it was constitutional. The ACLU panel subsequently appealed the case to the full court. A majority vote was needed for a reversal.
Florida, Mississippi and Utah are the only states that prohibit homosexual couples from adopting. But Florida’s law is considered the toughest because it prevents homosexual singles from adopting.
Pro-family leaders praised the ruling.
“Common sense and human history underscore the fact that children need a mother and a father,” said Mathew Staver, president of Liberty Counsel, which filed a friend-of-the-court brief. “Hopefully this decision will form a basis for other states to follow Florida’s example of preserving family relationships that include a mom and a dad.”
The six justices who would have overturned the law relied heavily on the Supreme Court’s Lawrence v. Texas ruling that overturned anti-sodomy laws.
But the other six justices disagreed. Justice Stanley Birch — who wrote the decision in January — said in his July 21 opinion that even if Lawrence “did acknowledge a constitutional liberty interest in private sexual intimacy, this liberty interest does not rise to the level of a fundamental right.”
Birch, though, took the unique opportunity to say he personally opposes the law, even though he believes it is constitutional.
“If I were a legislator, rather than a judge, I would vote in favor of considering otherwise eligible homosexuals for adoptive parenthood,” wrote Birth, who added that he would not “allow my personal views to conflict with my judicial duty.”
Judge Rosemary Barkett argued the law was unconstitutional and that homosexuals were singled out.
“There is no comparable bar in Florida’s adoption statute that applies to any other group,” she wrote. “Neither child molesters, drug addicts, nor domestic abusers are categorically barred by the statute from serving as adoptive parents.”
Birch’s earlier opinion was more strongly worded than his July opinion.
“[T]he state,” he wrote in January, “has a legitimate interest in encouraging this optimal family structure by seeking to place adoptive children in homes that have both a mother and father. Florida argues that its preference for adoptive marital families is based on the premise that the marital family structure is more stable than other household arrangements and that children benefit from the presence of both a father and mother in the home.
“Given that appellants have offered no competent evidence to the contrary, we find this premise to be one of those ‘unprovable assumptions’ that nevertheless can provide a legitimate basis for legislative action.”