One week after Florida’s first openly gay lawmaker announced the state might finally strike its unconstitutional 1977 gay adoption ban, conservatives have quietly crafted a legislative amendment that would allow private agencies to deny adoptions based on “religious or moral convictions.”
“Make no mistake: This proposal is political revenge against the move led by Rep. David Richardson,” Tony Lima, executive director of South Florida LGBT-rights group SAVE, said in an email to the Miami Herald. “It’s a shame that some in Florida’s legislature would vote to sanction prejudice, because discrimination in any form is wrong — and capable, loving prospective parents should have the opportunity to adopt children regardless of sexual orientation, gender identity, religion, race, political views, or marital status.”
On Thursday, the House Health & Human Services Committee approved a plan “to allow private child-placing 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.” Twelve Republicans voted for, six Democrats against.
In addition, the proposal specifically states any agency that denies placing a child in a home on religious or moral grounds is protected from losing its license, public grants or contracts and the ability to participate in government programs. Similar proposals have been introduced in the Michigan and Alabama houses.
Bill supporters cite the example of Catholic Charities of Boston, which chose to leave the adoption business in 2006 rather than abide by Massachusetts’ tough anti-discrimination laws.
“In 2006, Catholic Charities of Boston stopped providing adoption services based on a conflict between church teaching and state law. Like Florida, to participate in adoption placements in Massachusetts, whether or not the agency receives state funding, the child-placing agencies must be licensed. However, Massachusetts law prohibits discrimination based on sexual orientation,” reads the committee summary. “Catholic Charities Chair of the Board of Trustees explained, “In spite of much effort and analysis, Catholic Charities of Boston finds that it cannot reconcile the teaching of the Church, which guides our work, and the statutes and regulation of the Commonwealth.”
Howard Simon, executive director of the ACLU of Florida, said Richardson’s move to repeal the 1977 gay-adoption ban unexpectedly backfired on the Miami Beach Democrat.
“I wish there had been more collaboration on this before the amendment to repeal the ban had been introduced. We worked on this for more than a dozen years, with five lawsuits until we finally prevailed — and the law has not been enforced. Some strategizing might have been helpful,” Simon said.
“Rep. Richardson’s commitment and effective leadership on equality is unquestioned, but this was a self-inflicted wound,” Simon said.
Richardson, who is running for state Senate in Miami-Dade County, said he has no regrets: “It was the right move at the right time.”
For more than 30 years, Florida had the toughest anti-gay adoption law in the nation, passed just after singer Anita Bryant led a repeal of Miami-Dade County’s gay-rights law in 1977. At the time, state Sen. Curtis Peterson, who sponsored the adoption law, told gay men and women that the Legislature was sending them a message: “We're really tired of you. We wish you'd go back into the closet.”
Despite numerous legal challenges, the law remained enforced until 2010 when Frank Martin Gill, a gay man in North Miami, won the right to adopt two foster sons. Then-Florida Attorney General Bill McCollum eventually announced the state would not appeal decisions by the Third District Court of Appeal in South Florida and Miami-Dade Circuit Judge Cindy Lederman that the 1977 law is unconstitutional.
“This turns the page on an ugly chapter in Florida history,” Simon said at the time.
The anti-gay statute remains on the books, however. This legislative session, Richardson — Florida’s first openly gay lawmaker — saw an opportunity to officially repeal it as his colleagues revised the current adoption laws. He filed an amendment March 9 to repeal the anti-gay law.
On March 9, Richardson filed an amendment on the House floor to repeal the anti-gay law.
“When I filed it, they had until 5 p.m. to file any substitute amendments. A few minutes before 5 p.m., the Republicans filed a substitute amendment and they accepted my amendment, and added a provision to say that you could not be denied an adoption because you want to home-school a child,” Richardson said.
“The substitute amendment passed without any significant objection. That was Tuesday,” Richardson said. “Wednesday arrives, when the revised bill was going to be voted on. Certain groups that were opposed to my amendment, phone-banked both Democrat and Republican members all day in opposition.”
Rep. Dennis Baxley, an Ocala Republican, then suggested the adoption bill “provide some sort of religious conscience exemption,” Richardson said. “That’s what we saw this week was filed.”
Richardson said the committee amendment “was meant to be in response” to repealing the old anti-gay adoption statute.
Instead, Richardson said, the new proposal “has much broader implications.”
“A Christian religious organization can say they don’t want a Jewish family to adopt a Christian child,” said Richardson, who hopes the Florida Senate doesn’t adopt the House amendment.
Simon said this week’s House amendment is “an effort to end run around the Gill decision.”
“I’m sure the law books in Florida are filled with numerous dead-letter laws that have not been enforced and probably better to leave dead and buried. Now, if cooler heads do not prevail in the Florida Senate, this is now going to trigger another battle in the courts,” Simon said. “Unfortunately in Florida, being unconstitutional has never been a barrier for our Legislature. But the damage, the legal principle here is that somebody’s claimed religious or moral beliefs will be more important under this law than what will be in the best interests of children.”
John Stemberger, president and general counsel of the conservative Florida Family Policy Council in Orlando, on Friday issued an open letter to the Legislature “regarding Florida’s law prohibiting homosexual adoptions.”
Stemberger asserts that despite the South Florida appeals court ruling in 2010 that declared the gay-adoption ban unconstitutional, the statute stands and that another appeals court in Florida could side with the 1977 Legislature. “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,” Stemberger writes.
According to Stemberger, the Florida Department of Children and Families “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.”
Daniel Tilley, an ACLU of Florida staff attorney specializing in LGBT rights, said Stemberger’s letter “reflects an astonishing lack of understanding of how our legal system works.”
“The adoption ban has been held unconstitutional, so it’s unenforceable, period. Therefore, this repeal has no effect on adoption,” Tilley said. “Stemberger’s statement is simply incorrect —it’s black-letter law that the Third DCA’s opinion in Gill is binding on trial courts statewide, and there won’t be a conflicting appeals court opinion. It’s hard to imagine how this would come up, and gay couples have been adopting across the state since 2010.”
This session, conservative lawmakers are also moving ahead with a proposal to ban transgender Floridians from using single-sex bathrooms that don’t match their birth genders. A second House committee on Tuesday approved the plan, sponsored by Miami Republican Frank Artiles in response to a nondiscrimination law passed in November 2014 by the Miami-Dade County Commission.
Nadine Smith, executive director of LGBT-rights group Equality Florida, believes anti-gay sentiment in this year’s legislature is fueled by the recent legalization of same-sex marriage in Florida: “The desperate lashing out has begun.”