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The post below was published on Wednesday, September 22nd, 2010 at 11:40 AM.

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Third District: Ban on Adoption By Homosexuals Unconstitutional

This morning, the Third District released this decision, which declares Florida’s statutory ban on adoption by homosexual persons unconstitutional under Florida’s constitution.

The provision at issue is subsection (3) of this statute. It categorically prevents homosexual persons from adopting a child, regardless of how fit the person is or whether the adoption is in the child’s best interests.

The high profile case was brought by a man who fostered two previously neglected children and whose application to adopt them was denied under the statute only because he is a homosexual. He challenged the law’s constitutionality, and a trial court agreed that the law violates the equal protection guarantee of Florida’s constitution. The trial judge determined that the law lacks a rational basis to discriminate between homosexual and heterosexual persons.

The Department of Children & Families appealed to the Third District. Today, that appellate court affirmed the judgment, agreeing that the law lacks a rational basis to support the disparate treatment of homosexual and heterosexual persons who wish to adopt children.

The three-judge panel’s decision was unanimous. Judge Salter wrote a concurrence that discussed the case’s facts in detail, offered some additional legal analysis, and openly hoped that the litigation would end at this stage.

The Florida Supreme Court must review this decision if the state chooses to appeal, but the state is not legally required to appeal.

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