The Legislature Can’t Write, or Why the Ban on Gays Adopting Is Unconstitutional
Florida is the only state in the country with an express ban on “homosexuals” adopting children.
Florida Statute §63.042(3) states that, “No person eligible to adopt under this statute may adopt if that person is a homosexual.”
The ban is controversial, to say the least.
Homosexuals feel they are being discriminated against by government intrusion upon what would otherwise be their right to adopt a child. Some of those who oppose the ban point to the children’s rights to be adopted by the best possible family. They suggest that this ban not only infringes upon the rights of the homosexuals, but is unfair to children who could be raised by loving families regardless of sexual orientation.
To simplify, the attack on the constitutionality of the law is based on ‘equal protection.’ Those seeking to have this law declared unconstitutional claim that homosexuals are a class of citizens who deserve ‘equal’ protection under the law, and that there is no rational basis for this ban. Opponents, of course, routinely argue that homosexuals are seeking ‘special’ rights.
I want to suggest in this article that you don’t have to get to the merits of the ban to prove how it is unconstitutional. Here’s why:
The very first question you ask yourself when determining whether a statute is constitutional is evaluating whether that statute is vague. I am telling you, regardless of whether you believe the ban is good or bad, as the legislature has written it, the law is ‘vague’. How do we know this?
The U.S. Supreme Court has determined that a statute is vague if “men of common intelligence must necessarily guess at its meaning.” If a law does not make clear sense to a person of average intelligence, it is vague. You can’t be expected to live by a law that you don’t understand.
I’m a reasonably intelligent guy. I have been to college and law school. As a lawyer, I’m better trained than the average citizen in reading and interpreting statutes and legalese. Despite all this, I don’t know what they mean when they refer to “a homosexual.”
A visit to Dictionary.com comes back with the following definitions for the noun “homosexual:” First, a homosexual person; second, a gay man or a lesbian, and third, “a homosexual individual and especially a male.”
By placing the word “a” before the word “homosexual,” the legislature was clearly using the word “homosexual” as a noun. There is a problem with that.
As noted at Dictionary.com, many people now avoid using ‘homosexual’ because of the emphasis this term places on sexuality. Indeed, the words gay and lesbian, which stress cultural and social matters over sex, are frequently better choices.
Dictionary.com goes as far as to say: ‘Homosexual is most objectionable when used as a noun.’
In addition to the technical problems with the term, there are problems from a practical perspective. Exactly who or what is “a homosexual”?
What if a guy is married to a woman but prefers sex with men over sex with his female spouse?
What if he prefers sex with his female spouse but has occasional sexual encounters with a single man or various men? Does this make him a homosexual, disqualifying him from adopting? Or is he just a straight guy who fools around?
What about the woman who is married to a man, has kids, is sexually monogamous, but had a same-sex relationship in college?
What if she and her husband occasionally engage in threesomes at a local swingers club?
What if a guy is solely attracted to other guys, but is 100% celibate? What if he does not act upon his homosexuality? Is he a “homosexual”?
There are a thousand variations on the above-mentioned scenarios.
You may be thinking that the players in these scenarios are not homosexual but bisexual. If the statute in question is meant to ban “homosexuals” from adopting, should it also apply to “bisexuals?”
If so, then what exactly is a “bisexual,” and why isn’t that specifically listed as a prohibition in the statute? Since it is not, how can the state ban a ‘bisexual’ from adopting?
As part of every adoption, adoptive families must sign a document called the Florida Adoptive Home Application. Item ‘G’ on page four of this five-page document requires the family to truthfully state, under penalty of criminal prosecution, whether they are homosexual or bisexual.
Why is it relevant if they are “bisexual”? Even if that term could be clearly and easily defined, where in the law does it say that it’s relevant? It does not. Thus, the statute confuses multiple issues, lacks clarity, and creates what we lawyers call ‘vagueness.’
In summary, forgetting the right or wrong of the ban, you can effectively argue that the law is unconstitutional as written because it is vague and imprecise.
Attacks on this law based upon equal protection or similar grounds cannot be effectively made until the group being targeted with discrimination can be clearly identified.
Jeffrey A. Kasky, Esquire is a partner at Kasky Mediation Group located in Deerfield Beach.