UPDATE: 1/11/05 @ 5:25
In a depressing development, the Supreme Court has declined to hear an appeal challenging Florida's absurd and deeply degrading ban on allowing gay couples to adopt children (How Appealing with the link).
I'm obviously very disappointed to hear that they aren't taking the case. I think that the 11th circuits reasoning in the case was shoddy, and contrary to what the Washington Post article implies, it isn't in any way comparable to the Court denying cert to the appeal of Massachusetts' pro-gay marriage decision. Put simply, Lofton (the gay adoption case) has a federal issue, and Goodridge (the Massachusetts case) doesn't. The Florida law is wholly unique amongst the nation, the legislative history makes it clear that the guiding, if not entire, principle behind the law was naked animus toward Gay people, and the law as a whole seems entirely inconsistent with the Court's groundbreaking decision in Lawerence v. Texas.
Now, those who wish for equality must turn to the political process. There has been an effort to round up support for repealing this disgusting piece of discrimination, but I don't have too much hope. The American political body just isn't ready to consider gay Americans equal citizens quite yet.
At least Israel is getting it right.
UPDATE: Eugene Volokh weighs in, as does Larry Ribstein. Meanwhile, Pseudo-Polymath takes issue with labeling those who oppose gay rights as "haters" (be sure to see my response in his comments section!). To be clear, its possible to vote for a law that restricts gay rights and not be hateful (although I think the Florida law, being an outgrowth of Anita Bryant's anti-gay "Save the Children" campaign, was an expression of hate, pure and simple), the vote certainly isn't "innocent" and at the very least is reflective of prejudice. However, in the interest of cooperation, I'll cease tagging all anti-gay rights personnel as universally "hateful," and instead label them "prejudiced" (clearly I've learned a lesson or two from Mr. Bush about bipartisanship!).
As far as I know, homosexual ORIENTATION isn't a sin in any religion (as distinguished from homosexual CONDUCT). Hence, laws that seek to impose restrictions on homosexuals because of their behavior (IE, you can't adopt children) penalize people for something that most scientists believe isn't a choice. It's similar to banning people with birthmarks from adopting children, or people who are black. But even if homosexuality was a choice, that wouldn't save the laws, because government has no business regulating the choices of individuals outside of them committing harms to others. In the case of homosexuality, the body of literature and scholarly opinion is very clear that homosexuals can (and often do) make good parents (and certainly are a better option than foster care). Hence, there is no link between the restricted action (homosexuality) and the purported justification (best interests of the child). As UCLA Law Prof. Eugene Volokh puts it:
ReplyDelete"I suspect the law generally may not bar adoptions by people who have expressed certain political beliefs, who practice certain religions, or who own guns (either if the Second Amendment is interpreted as protecting an individual right, or if the state involved is one of the many states [including Florida] whose constitutions clearly secure an individual right). The government generally may not use a person's exercise of his First or Second Amendment rights as a justification for denying them the benefit of an adoption.
The government may have some power to consider a person's constitutionally protected conduct in making this decision — in government employment decisions, for instance, the Court has held that the government has consider power to consider an employee's speech when the speech risks interfering with the efficiency of the government employer. But courts demand more than just a bare "rational basis" for such government decisions; they generally require some pretty substantial evidence that the person's exercise of his constitutional rights is substantially relevant to the government's decision."
Since the relevancy of the offending action bears no rational link to the prohibited benefit, the law should be seen as invalid.
Finally, even if the laws were hinged on conduct and specific only to conduct (IE, the laws struck down in Lawerence), I still don't think they'd be justifiable. Lying is an immoral action, but we would never ban adoptions by anyone who lies (nobody would be adopted then!). As such, the law targets one subclass of sinners while ignoring the rest. The only justification I can see for that is that this group is a minority, and we can push them around. Pushing around the class of liars would be much more difficult. In general, laws should be limited to areas in which, without the law, segments of the population would be substantially burdened in the exercise of their own rights and liberties. Generic "virtue" or "vice" is too broad a justification to bring down the awesome coercive power of the state upon hapless victims.