Handout 8-11-14 Ijtrb ttritt Court of Zipper
State of Florida, July Term, A.D. 2010
Opinion filed September 22, 2010.
Not final until disposition of timely filed motion for rehearing.
No. 3D08-3044
Lower Tribunal No. 06-33881
Florida Department of Children and Families,
Appellant,
vs.
In re: Matter of Adoption of X.X.G. and N.R.G.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Cindy S.
Lederman, Judge.
Bill McCollum, Attorney General, and Scott D. Makar, Solicitor General,
and Timothy D. Osterhaus, Deputy Solicitor General, for appellant.
Charles M. Auslander, The Children's Trust; Greenberg Traurig and Hilarie
Bass and Elliot H. Scherker and Brigid F. Cech Samole and Ricardo Gonzalez and
Elaine D. Walter; Robert F. Rosenwald, Jr., and Shelbi D. Day, American Civil
Liberties Union; Leslie Cooper; Hillary Kambour, Guardian Ad Litem Program,
for appellees.
Mary E. McAlister; Mathew D. Stayer and Anita L. Stayer, for Liberty
Counsel, as amicus curiae.
demographic factors "seem to have as strong or even stronger correlations with
break-ups." R. 795.
The Department claims that homosexual parents "support adolescent sexual
activity and experimentations." Initial Brief at 32. The Department claims to draw
this from the testimony of F.G.'s experts, but the experts did not say this. Dr.
Lamb testified that research showed no difference between children of gay parents
and heterosexual parents with respect to the age at which they initiated sexual
activity. R. 1235.
Dr. Berlin testified that there is no evidence that the environment in which a
child is raised, heterosexual or homosexual, would determine the sexual identity of
the child who is raised in that environment. R. 1382-83. "[T]he overwhelming
majority of homosexual individuals were raised in heterosexual households,
suggesting that the environment in which they were raised in those instances
certainly wasn't the determining factor of their development . . . ." R. 1383.
Similarly, the overwhelming majority of those children raised in a gay
environment turned out to be heterosexual, R. 1383, a point with which
Department expert Schumm agreed. R. 1863.
The Department argues that placement of children with homosexuals
presents a risk of discrimination and societal stigma. Here, too, the argument is
misplaced. Florida already allows placement of children in foster care and
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guardianships with homosexual persons. This factor does not provide an argument
for allowing such placements while prohibiting adoption. We reject the
Department's remaining arguments for the same reason: they do not provide a
reasonable basis for allowing homosexual foster parenting or guardianships while
imposing a prohibition on adoption.
In conclusion on the equal protection issue, the legislature is allowed to
make classifications when it enacts statutes. Leicht, 412 So. 2d at 1155. As a
general proposition, a classification "will be upheld even if another classification
or no classification might appear more reasonable." Id. The classifications must,
however, be "based on a real difference which is reasonably related to the subject
and purpose of the regulation." Id. (Emphasis added). "The reason for the equal
protection clause was to assure that there would be no second class citizens."
Ostendorf v. Turner, 426 So. 2d 539, 545-46 (Fla. 1982).
Under Florida law, homosexual persons are allowed to serve as foster
parents or guardians but are barred from being considered for adoptive parents.
All other persons are eligible to be considered case-by-case to be adoptive parents,
but not homosexual persons even where, as here, the adoptive parent is a fit
parent and the adoption is in the best interest of the children.
The Department has argued that evidence produced by its experts and F.G.'s
experts supports a distinction wherein homosexual persons may serve as foster
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