Florida’s Gay Adoption Ban – The Legal Debate
Below I touch upon some of the common policy arguments regarding Florida’s adoption statute, but it’s worth noting a very important legal argument that often gets lost in the shuffle with such issues. The Supreme Court’s role is not to take the policy arguments below and determine which is more persuasive. The Court’s function is simply to interpret the law and ensure it’s consistent with Constitutional boundaries. As the Supreme Court itself said in Federal Commun. Comm’n v. Beach Commun., judicial review does “not provide courts a license to judge the wisdom, fairness, or logic of legislative choices.” So long as no Constitutional right is in play – and there are none violated here – the legislation must only be rationally related to a legitimate state interest. On that point the Supreme Court had it right. Some may argue that Florida has outlined a weak state interest and/or doesn’t meet it very well, but it’s a legitimate one nonetheless and is rationally related (even if poorly related) to that interest. The ensuing debates that we’ll hear from pundits over the next few weeks are debates that should take place in the legislature, not the courts.
15 Responses to “Florida’s Gay Adoption Ban – The Legal Debate”
But why isn’t the ability to adopt a constitutional right? If the ability to reproduce is, then equitable protection would mean that the barren should have some recourse to perpetuating the family. (Imagine Roman history without adoption.)
There are generally three things needed to “create” or define a fundamental right:
The “right to adopt” doesn’t meet that test and hasn’t ever been declared by the Court. It’s not explicit in the Constitution and can’t be found in precedent. And even if there is a Constitutional right, the state can still impede upon it if the statute is narrowly tailored to serve a compelling state interest.
Finally, adoption is a public act that is governed by the state. Reproducing, however, is a very private one. When you choose to adopt you open your house and lifestyle up for scrutiny by the state, putting it on a different Constitutional plane.
Good call, Joshua. I would add too that in the case of international adoption, adoption is goverened by two states, the USA and the other country. Sometimes this renders homosexual adoption moot. China, for instance, forbids homosexual adoptions entirely.
There are other reasons that a person may not be able to adopt besides sexual orientation. Going back to China again, age is a consideration; the sum of the ages of an adopting couple cannot exceed something like 100 years. So is income. The state (in this case, the Chinese government) determines the baseline for who can adopt and who can’t, not someone’s “rights”.
I hate to be blunt, Robert, but there’s something particularly foolish about making an argument that adoption is not a natural right–or a right, period–by appealing to the practices of an authoritarian, dialectic state predicated on the denial of individual rights in toto.
Wouldn’t it be nice if there was just one “thing” needed to define a fundamental right?
1) Is it listed in the Constitution or its Amendments?
That doesn’t work because, at a minimum, the Constitution doesn’t include the right to revolution.
Gays and adoption
This, however, is about much more than just adoption rights. The more privileges a gay couple receive (i.e. survior benefits, adoption rights, legal and financial benefits) the more legitmate their union becomes
The Constitution also explicitly mentions that many rights are not to be found within its provisions, and that these rights are retained all the same. The most obvious and noncontroversial of these unmentioned rights is the freedom to travel.
The right to revolution, on the other hand, is by definition the most controversial right we have. But it is no less a right.
Should homosexuals be able to adopt? — the policy
Joshua Claybourn from In the Agora picked up on my comments on the Supreme Court deciding not to hear the challenge to Florida’s ban on homosexuals adopting. Although he agreed with the fundamental point that legally the Supreme Court should only dec…
Jason, there you go again–believing the Ninth and Tenth Amendments mean what they say! How very pre-FDR of you.
I agree the rt. to rev. is controversial, but that is why I chose it. It is there, but it is always, and for a very good reason, extraconstitutional.
What would the constitutional theory of the U.S. have been had the Deep South seceded? Surely extraconstitutional rights would play a larger role in our politics, and the cult of the constitution would be less important.
International adoption is not the only type of adoption that is governed by two parties. Any adoption involving a child born in one state and adoptive parents living in another state is subject to the Interstate Compact. This process can be very intimidating and overwhelming as states take two unique adoption laws and try to satisfy both. For example, if an Indiana couple were to seek to adopt a child born in Kentucky, they may be required to live in Kentucky for up to 2-3 months while Interstate Compact is worked out. Furthermore, they may or may not be allowed to stay with the child during this time. Adoption laws on the whole are in need of some major reform. (Side note: for you aspiring attorneys, adoption law is very lucrative).
Paul -
I’m not arguing, using China, that adoption is not a natural right. I’m stating the fact that a person’s supposed “right” to adopt is not a factor in adoption laws as they currently stand, either in the US or in China. Therefore, like Joshua said, this is not an issue for the courts but rather for the legislatures. (And let’s hope that China does start to take human rights a little more seriously in the future, so that THEIR legislators can take up the issue as well.)
Robert,
China is irrelevant to this debate. A West European or culturally-West country like Australia or New Zealand would be relevant. Bringing up China in reference to any point of U.S. natural rights philosophy is just folly. (And asking China’s legislators to stand up for their beliefs isn’t quite asking them to take a bullet, but it is asking them to take a futile and self-defeating move.)
Society has wrapped themselves in so much selfish anguish, with who has what rights, that they forget who this whole adoption debate is really about, the child.
Yes, I agree with Celia and Robert. We need to revise out laws so that they are compatible on a national level while remembering who they are for in the first place. The differentiating state laws waste time in the courts (along with divorce cases) while trying to compromise on the issue, as a direct result of which the child has to wait longer before entering a more stable situation. I know that the state laws now are only trying to ensure that the prospective parents are qualified, but isn’t there a more efficient way to do it while respecting everyone involved?