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February 6, 2010

Case Law Builds Against Florida Statute Banning Adoption by Lesbian and Gay Adults

Miami Beach attorney Alan Mishael on the Florida statute banning gay adoptions: “We will continue chipping away at this law…” until there is “an appellate decision to junk this bad law.”

Miami Beach attorney Alan Mishael on the Florida statute banning gay adoptions: “We will continue chipping away at this law…” until there is “an appellate decision to junk this bad law.”

In “How a Battle for Adoption Rights Became a First Amendment Keller Issue,” a Friday session of the ABA Midyear Meeting, panelists shared that ABA attorneys are among those who are challenging a Florida statute that specifically prohibits gay men and lesbians  – whether they are single or coupled – from adopting children.

The Florida legislature passed this law in 1977.  The state remains the only one in the Union with a law that specifically bars gays and lesbians from adopting.  A bill to repeal the Florida ban hasn’t interested legislators over the past several years.

Miami Beach attorney Alan Mishael, who has worked on cases that challenge the Florida statute, said, “We will continue chipping away at this law…” until there is “an appellate decision to junk this bad law.”

He understands that building “a critical mass of cases and a nucleus of judges” could be difficult unless those judges “have the courage not to think about the fact that they are elected.”

Mishael highlighted some of the positive momentum, such as when a judge from the Miami-Dade Circuit Court of appeals declared the Florida statute unconstitutional in November 2008.  That case has been appealed and according to Mishael, there has been no decision yet.

More recently, in a January 2010 decision from the Miami-Dade Circuit Court, the Florida statute was called “…unconstitutional on its face.”  The court added, “In other words, there is no rational connection between sexual orientation and what invariably is or is not in the best interest of a child.”

Mishael described some of the ways in which attorneys are attacking the Florida statute.  There is a Florida law that prohibits special laws that single out specific topics or subjects.

“The existing [1977] law is specifically against adoption for gays and lesbians,” explained Mishael.

He believes the 1977 Florida statute also violates separation of powers.  Mishael said, “When a juvenile court has been entrusted to act in the best interest of a child…the legislature cannot overreach and impose its will.

Emily Hecht, senior legislative counsel for the Family Equality Council — which works to advance social and legal equality for LGBT families — said gay and lesbian parents already raise 3 percent of the foster care children in the United States. 

She added, “If there were no statutory exclusions or restrictions, there would be two million more LGBT parents who would adopt.”

Learn More About:  Family LawGay Rights