John Stemberger weighs in on gay adoption law

Last week, the Florida house struck down the state’s 38-year ban on same-sex adoptions. The Christian Right in Tallahassee has vowed ever since to make sure that such a bill never makes it to Rick Scott‘s desk.

On Thursday the House Health & Human Services Committee passed a proposed bill, PCB HHSC 15-03, that would allow allow private child-placing agencies to refuse an adoption if the placement violates their religious or moral convictions. Florida Politics’ Christine Jordan-Sexton reported that committee Chairman Jason Brodeur said the the bill was necessary in light of the state’s move to eliminate the ban on gay adoption. Without the bill, he said, the private agencies “might likely have to shut down because they can’t reconcile their beliefs with the state.”

Florida’s 1977 ban on gay adoption was originally overturned in 2008 by Miami-Dade Circuit Court Judge Cindy S. Lederman in a 53-page decision. She said the law violated equal protection rights for children and their prospective parents. The state appealed that decision, but in September 2010, the 3rd District Court of Appeal upheld the ruling, and then-Gov. Charlie Crist announced that the state would immediately stop enforcing its ban on same-sex couples adopting children.

Now the Legislature is poised to make what has been the law as currently practiced in Florida into state Statute.

Before the House’s 68-50 vote last week in support of an amendment that would remove the ban on gay adoption from Florida law, House Speaker Steve Crisafulli said the vote wasn’t an endorsement of current policy that allows gays to adopt, but simply accepting the legal realities. “I”m somebody who operates under the letter of the law,” he said. “I recognize that this has been taking place for five years, so our bill is going to reflect that.”

Now comes a letter to every member of the Legislature from John Stemberger, general counsel for the Florida Family Planning Council. He writes that “there appears to be a fair amount of misleading information” regarding the legal status as it currently stands of the state’s position on gay adoption:

1. The “law” on adoption is found in Florida’s Statutes, not in the Court’s opinion. The Third District Court of Appeals in, FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, v. In re Matter of ADOPTION OF X.X.G. and N.R.G., 43 So. 3d 79 (3rd DCA 2010) rendered an opinion that Florida’s law prohibiting homosexuals from adopting children was unconstitutional under the Equal Protection Clause of the state Constitution. Some have referred to this court’s opinion as if it were the current law in Florida. This is incorrect. Courts can render opinions interpreting the law or overruling law, but they cannot make original law.  The law in Florida regarding this issue is found in the single sentence which the House recently voted to strike from the statute.  It is “[n]o person eligible to adopt under this statute may adopt if that person is a homosexual.”  Section 63.024(3)
2. The DCA decision is merely “persuasive” authority but it is not binding authority statewide. The opinion of Adoption of XXG, is binding or controlling authority, only within Miami-Dade and Monroe counties where the jurisdiction of the Third District Court of Appeals lies. Further, the opinion was decided on highly questionable legal grounds because the court “discovered” Florida’s Constitution was somehow suddenly in conflict with Florida’s Statutes.
3. DCF has for many years ignored the law and placed children with homosexuals for the simple reason that the agency is filled at a local level with pro-gay rights employees. DCF has ignored and side-stepped the prohibition in Florida’s law for many years and placed children with homosexual parents. DCF would place homosexuals as foster parents (which Florida law allows as a non-permanent placement) and then just arrange for adoptions for those persons and look the other way as to the gay man’s “roommate” or “friend.”  Because of the false cover of Adoption of XXG opinion, the agency continues the same practice, but now openly and aggressively.
4. Another Appeals Court in Florida could easily uphold the statute’s constitutionality creating a conflict and an automatic appeal to the Florida Supreme Court. The Third DCA is arguably the most progressive Florida Appellate Court in the state. It’s very possible that another legal appeal in a more conservative court venue could produce a different result upholding Florida’s long standing prohibition on homosexual adoption. A conflict between two DCA’s would provoke an appeal to the Florida Supreme Court for a final authoritative decision. This final decision could be decided by a new conservative majority on Florida’s high court because four of the nine current Justices will face mandatory retirement by 2019, and will be replaced by a new Governor who will be elected in 2018.
5. Even in the face of the DCA opinion, the express statutory language provides direct legal protection for faith-based adoption agencies. Faith-based adoption agencies like Florida Baptist Children’s Home, Catholic Charities and private Christian adoption agencies are unable to place children for adoption with homosexual couples because of sincerely held religious convictions. The statutory language in Chapter 63 (which is still the law and not unconstitutional statewide) provides legal protection for these adoption agencies which place a very significant percentage of children statewide for adoption.
6. If Florida’s statutory language prohibiting homosexual adoptions is removed, faith-based adoption agencies become vulnerable to legal attack by local “non-discrimination” laws which created new protected classes for sexual orientation. Currently, Florida has 13 cities and 10 counties which have created new protected classes for “sexual orientation”, “gender identity” and or “gender expression.” These laws have been used around the country as weapons to punish business owners who exercise their faith in commerce and public life. In Massachusetts, Catholic Charities was forced to close and stop placing children for adoption because of legal attacks by homosexuals using the state’s non-discrimination laws. Because of religious convictions, Catholic Charities were not able to place children with homosexuals and therefore had no option but to stop doing adoptions altogether. This is precisely why Florida’s own so-called “Competitive Work Force Act” SB 156/HB 33 (creating new protected classes for sexual orientation, gender identity and gender expression) is oppressive and dangerous public policy and should never see the light of day in Florida.
7. Unless a conscience clause has express preemption language clearly trumping the home rule of local government, then faith based adoption agencies could still subject to legal attack by local non-discrimination laws. If the legislature strikes the language prohibiting homosexual adoptions, the law will then change to officially allow homosexual adoptions statewide for the first time. But with the presence of local non-discrimination laws, which have created these new protected classes, the law will quickly devolve into a requirement to place children with homosexuals for adoption — or else face litigation, penalties and fines — or even worse — the closing of the adoption agency altogether. A conscience clause with express preemption language should not be used as a bargaining chip for striking the prohibition. A strong conscience clause and the original prohibition language are needed to provide lasting legal protection for the rights of conscience of faith-based adoption agencies in Florida

The blowback on the House vote supporting gay adoption has been fierce.

Stemberger bashed Republicans in the House who supported the legislation last week, and after speaking with Ocala Rep. (and former Christian Coalition of Florida leader) Dennis Baxley the day after the vote, Baxley went back and reversed his vote.

On Monday night, the Marion County Republican Executive Committee approved a resolution criticizing Baxley and fellow Marion County Republican Reps. Charlie Stone and Marlene O’Toole for their votes in support of the amendment to repeal the ban on gay adoption.