Faculty Profiles
A child's right to be loved
By Troy Hillier (2L)
“I don’t think it is an exaggeration to say that Mr. Gill saved the lives of these children,” said Joseph S. Jackson, a University of Florida Levin College of Law legal skills professor.
Jackson doesn’t mince words when talking about the seriousness of the situation of Martin Gill and two boys he adopted. When Gill took the brothers into his home, one was only 4 years old and the other was a mere four months. They had been subjected to such neglect that the elder brother showed no signs of feelings or emotions and did not speak for weeks; his sole concern was changing, feeding, and caring for his infant brother — adult responsibilities he had assumed by default. With Gill, the two brothers began to flourish in a loving and caring home.
Two years later, Gill filed papers to adopt the children, both now healthy and happy. The state found that Gill was able to provide an excellent home, but his request to adopt the children was denied. The reason? Gill is gay.
Jackson found himself in the fray of the gay adoption issue after taking the lead role in authoring an amicus brief on behalf of the law school’s Center on Children and Families, supporting the right of the children to be adopted by Gill.
“This was a team project of the center, and our in-house collaboration really sparked our thinking and improved our arguments,” Jackson said.
In 2008, a trial judge sided with Gill, allowing the adoption. This was soon appealed to the Florida Third District Court of Appeals, to whom Jackson made the argument that the adoption should be affirmed on the ground that the Florida statute prohibiting adoption by gay men and lesbians violates the constitutional rights of children in need of a permanent family.
“Matters that are of fundamental significance to the individual cannot lightly be taken away, and laws that interfere with them have to pass strict scrutiny in order to be sustained,” he said. “So the core argument we made was that, as decades of scientific research confirm, children truly need a permanent parent to attach to in order to develop into autonomous persons. That need is therefore something that should be treated as a fundamental right.”
The state has argued that Florida does not recognize homosexual people as a suspect class, nor does it hold that adoption is a fundamental right. Because of that, the state argued that it need only show a rational basis for the law, which it described as the supposedly higher risk of psychiatric disorders in children adopted by homosexual parents. But research demonstrates that gay people and straight people make equally good parents, Jackson said, and the categorical ban can’t be justified by supposed statistical differences, since adoption decisions are based on an individualized screening that ensures the prospective parent is fit to adopt.
In addition, Jackson thinks the state’s rationale doesn’t square with the fact that gay men and lesbians are allowed to serve as foster parents, and he said the argument is particularly hard to believe when one looks at the legislative history behind the gay adoption ban. The bill was passed in 1977 amid outrage caused by a Miami ordinance that sought to give homosexual people protection in housing and other matters — Jackson thinks that atmosphere had everything to do with the statute.
“The sponsor of the state statute said upon the bill’s enactment, ‘We’re sending a message. We’re really tired of you. We wish you’d go back into the closet.’ So, I think that concerns about the best interests of children are not really what were behind the existence of this provision in the Florida statutes.”
Regardless of the appellate court’s pending decision, many observers, including Jackson, expect the case to come before the Florida Supreme Court.
“My sense is that both sides saw this case as fairly presenting for decision the constitutional validity of the statute,” Jackson said, “so seeking a dispositive ruling from the Florida Supreme Court would make sense.”
And if the Florida Supreme Court rules against Gill’s adoption of these children?
Yves Francois, an adoption supervisor for the Center for Family and Child Enrichment, testified before the trial court that the state would attempt to find other adoptive parents for them. Francois testified that not only could the brothers, now 9 and 5 years old, be separated from Gill, but due to the disparity in their ages they could be separated from each other.
An expert in child clinical psychology, Dr. David Brodzinsky, testified that such a separation would leave the boys “emotionally devastated.” When the boys were rescued, the elder brother was already emotionally traumatized and his only concern was to look after his younger sibling. The trial judge noted that despite having their own beds, the younger brother always winds up in his brother’s bed.
With this outcome a serious risk for his children, it’s not surprising that Gill is determined to press the claim as high as necessary.
