Federal Appeals Court Refuses To Reverse Its Earlier Decision That Upholds Floridas Ban on Same-Sex Adoption

Jul 22, 2004

Orlando, Florida – Today, the Eleventh Circuit Court of Appeals, sitting as a full court of twelve judges, refused to reverse its earlier opinion upholding Florida’s ban on same-sex adoptions. Liberty Counsel and the Marriage Law Project filed an amicus brief on behalf of Florida legislators with the Eleventh Circuit Court of Appeals in Atlanta, Georgia, in defense of the law. Liberty Counsel is a civil liberties legal defense and education organization headquartered in Orlando, Florida.

The denial of rehearing was accompanied by a concurrence from one judge and a dissent from six judges of the Eleventh Circuit. The Eleventh Circuit’s earlier opinion, which remains in effect as a result of today’s decision, holds that the Florida legislature properly made a policy judgment that it is not in the best interests of its displaced children to be adopted by individuals who engage in current, voluntary homosexual activity. The Court stated that, “[W]e have found nothing in the Constitution that forbids this policy judgment. Thus, any argument that the Florida legislature was misguided in its decision is one of legislative policy, not constitutional law. The legislature is the proper forum for this debate, and we do not sit as a super-legislature to award by judicial decree what was not achievable by political consensus.”

The opinion noted that under Florida law, adoption is a privilege and not a right and that the state may make classifications in the adoption arena that may be constitutionally suspect in other areas. Perhaps most importantly, the opinion cut back on the Supreme Court’s decision in Lawrence v. Texas that found criminal homosexual sodomy statutes unconstitutional. The Eleventh Circuit held that the Lawrence case did not create a new fundamental right to private sexual intimacy and that the Lawrence decision did not control the adoption case because the ban on adoption was not a criminal prohibition, but was a statutory privilege.

The opinion relied upon Liberty Counsel’s amicus brief in holding that the Florida Legislature had “a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children…. by seeking to place the children in homes that have both a mother and father.” The opinion also noted that even though some have argued that alternative child-rearing arrangements are satisfactory, the Court stated that no alternative arrangement “has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model.”

Mathew D. Staver, President and General Counsel of Liberty Counsel, stated, “I am ecstatic about today’s decision which upholds Florida’s policy that furthers the best interests of children to be raised with a mom and a dad. Common sense and human history underscore the fact that children need a mother and a father. 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.”

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