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ACLU attorney says new House bill to prevent gay adoptions in Florida is unconstitutional

Last week the House Health & Human Services Committee approved a proposal that would allow private adoption agencies to object to “performing, assisting in, recommending, consenting to, or participating in the placement of a child if a placement violates the agency’s written religious or moral convictions or policies.” The measure, sponsored by Sanford Republican Jason Brodeur, would also essentially endorse discrimination, allowing any agency that denies placing a child in a home with a same-sex couple from losing its license or ability to participate in government programs.

ACLU attorney Daniel Tilley says it’s flatly unconstitutional.

“The state can’t use religious criteria to place children in state custody,” he told Florida Politics last Friday. “And since the state can’t do that itself, the folks that they hire to do the government’s job can’t do that either. So these child placement agencies cannot allow either religious or moral or other criteria to supersede the best interests of the child.”

The proposal is being being viewed as a legislative response to the Florida House’s approval earlier this month to remove the ban on gay adoption out of state statute.

For some observers, it’s all a bit mystifying why the Legislature is dealing with this issue at all.  After the 3rd District Court of Appeal affirmed an earlier ruling that the ban on gay adoption was unconstitutional back in October of 2010, the Department of Children and Families announced it would not appeal the decision. Then Attorney General Bill McCollum said that case involving licensed foster parent Frank Martin Gill wasn’t the “right case” to take to the Supreme Court, allowing same-sex couples the legal right adopt children in Florida.

So while it’s been legal for gay couples to adopt ever since, the language has remained in state law. Hence the bill to remove it, sponsored by Miami Beach House Democrat David Richardson, who is running for state Senate in 2016.

John Stemberger, head of  the conservative Florida Family Planning Council, penned a letter to state legislators last Friday, claiming 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. He  wrote that “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.”

ACLU Attorney Daniel Tilley laughed after he read that particular passage.

“This letter reflects an astonishing lack of understanding on how our legal system works,” he says. “The law has held that statutory language unconstitutional, so it is not enforceable. And it hasn’t been enforced since 2010. DCF could not enforce that provision and they have not been enforcing that provision, rightly so. Not because they have ‘pro-gay rights employees,’ but because it would be unlawful for them to enforce an unconstitutional law.”

Stemberger also writes that another Appeals Court could “easily uphold the statute’s constitutionality,” thus creating a conflict and propelling the case of the Florida Supreme Court to make a final authoritative decision.

But,Tilley notes, the Florida Supreme Court has already taken notice of the 3rd DCA case. That was in November of 2013, in the D.M.T. v. T.M.H. case, where the high court recognized for the first time that a child can have two legal mothers. In their ruling, the court wrote:

Finally, we note that the Third District has held Florida law prohibiting same-sex couples from adopting as unconstitutional. See Adoption of X.X.G., 45 So. 3d at 92. In finding the legislative prohibition against a homosexual adopting a child to be unconstitutional as a denial of equal protection lacking a rational basis, the Third District in Adoption of X.X.G. noted that the parties in that case agreed “that gay people and heterosexuals make equally good parents,” and that no party offered a justification for the prohibition on homosexual adoption based “on any theory that homosexual persons are unfit to be parents.” Id. at 85.

In summary, Tilley says the Brodeur bill in the House is being pushed because of something that has just changed, so there has to be a response. “But nothing is changing. The change happened years ago.”

The Brodeur bill did pass in committee last week, and will continue to work its way back before the entire House.

Written By

Mitch Perry has been a reporter with Extensive Enterprises since November of 2014. Previously, he served five years as political editor of the alternative newsweekly Creative Loafing. Mitch also was assistant news director with WMNF 88.5 FM in Tampa from 2000-2009, and currently hosts MidPoint, a weekly talk show, on WMNF on Thursday afternoons. He began his reporting career at KPFA radio in Berkeley and is a San Francisco native who has lived in Tampa since 2000. Mitch can be reached at mitch.perry@floridapolitics.com.

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