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Great news of small favors.

Miami-Dade Circuit Judge Cindy Lederman said the 31-year-old law violates equal protection rights for the children and their prospective gay parents, rejecting the state’s arguments that there is “a supposed dark cloud hovering over homes of homosexuals and their children.”

She noted that gay people are allowed to be foster parents in Florida. “There is no rational basis to prohibit gay parents from adopting,” she wrote in a 53-page ruling.

Florida is the only state with an outright ban on gay adoption. Arkansas voters last month approved a measure similar to a law in Utah that bans any unmarried straight or gay couples from adopting or fostering children. Mississippi bans gay couples, but not single gays, from adopting.

The ruling means that Martin Gill, 47, and his male partner can adopt two brothers, ages 4 and 8, whom he has cared for as foster children since December 2004.

Does the Mississippi law make any sense whatsoever to anyone?

The Miami Herald also has the story and some photographs, as well as a poll to freep. Key quote from the article:

”These children are thriving; it is uncontroverted,” the judge added.

Of course, that’s totally irrelevant, right?

There will be an appeal.

Addendum: Damn! I posted before I got to the bottom of the article. There’s some great stuff in there, and there’s a link to the 30 page judgment. Apparently there was a similar ruling in another court.

In August, Monroe Circuit Judge David John Audlin Jr. wrote that Florida’s 1977 gay adoption ban arose out of ”unveiled expressions of bigotry” when the state was experiencing a severe backlash to demands for civil rights by gay people in Miami.

Wasn’t Florida Anita Bryant’s stomping grounds?

The ruling may hold because it’s based upon the rights of the children, not simply the parents.

‘Disqualifying every gay Floridian from raising a family, enjoying grandchildren or carrying on the family name, based on nothing more than lawful sexual conduct, while assuring child abusers, terrorists, drug dealers, rapists and murderers at least individualized consideration, “ Audlin wrote, was so “disproportionately severe” that it violates the state and U.S. Constitutions.

In her ruling, Lederman said children taken into state care have a ”fundamental” right to be raised in a permanent adoptive home if they cannot be reunited with birth parents. Children whose foster parents are gay, she said, can be deprived of that right under the current law.

”The challenged statute, in precluding otherwise qualified homosexuals from adopting available children, does not promote the interests of children and, in effect, causes harm to the children it is meant to protect,” Lederman wrote.

The judge added: “There is no question the blanket exclusion of gay applicants defeats Florida’s goal of providing [foster] children a permanent family through adoption.”

This is significant, because the factual finding that children are actually deprived parents by virtue of the ban should beef up the strength of the ruling considerably. The ban runs afoul of the children’s due process rights, but also the state policy to put children into stable families.

The Herald slights the ruling in the following passage, but she simply summarized the evidence provided to her. The finding is that the ban hurts children.

In a ruling that, at times, reads more like a social science research paper, Lederman dissected 30 years worth of psychological and sociological research, concluding that studies overwhelmingly have shown that gay people can parent every bit as effectively as straight people and do no harm to their children.

”Based on the evidence presented from experts from all over this country and abroad,” Lederman wrote, “it is clear that sexual orientation is not a predictor of a person’s ability to parent. Sexual orientation no more leads to psychiatric disorders, alcohol and substance abuse, relationship instability, a lower life expectancy or sexual disorders than race, gender, socioeconomic class or any other demographic characteristic.

So shines a good deed in a weary world.

The KMUD news reported tonight a California Supreme Court ruling which eliminates as a “primary caregiver” the right to distribute marijuana to patients unless the provider renders treatment other than the marijuana itself.

So I got home and tried to find the case. There’s a story on the SF Chronicle site, but it sort of misses the point, focusing on a side point – state approved cooperatives yes, your street corner dealer no. The article barely mentions the “primary caregiver” issue, which was the central issue of the case. My first assumption was that Cynthia had misstated the nature of the case, but fortunately the Chronicle article links to the decision itself. It turns out the Chronicle writer just doesn’t really understand the case. I offer my profuse apology to Cynthia for doubting her even for a brief moment.

The case arose from events in Santa Cruz. The defendant made a number of large cash deposits at a bank and the teller took notice. When the amount of the deposits exceeded $10,000 over a two month period she notified the sheriff who busted the defendant. The defendant brought to the stand several witnesses to testify that they had designated him their “primary caregiver” which would make it legal for him to sell to them.

The Supreme Court rejected the defendant’s status as “primary caregiver” because he did not “consistently assume responsibility for the housing, health, or safety of the patient.” And it’s not enough to subsequently designate someone, the relationship must exist when the marijuana is being distributed. And as Cynthia reported, you have to offer something more than just the marijuana.

There is also a very interesting concurring opinion by Justice Chin, addressing a point which was not necessary to the decision of the case. It’s a fine point, but the majority opinion continually states that the defendant has the “burden of raising a reasonable doubt” as to whether he had the right to possess and distribute the stuff as a primary caregiver. The jury instruction apparently says precisely that, but Chin argues that the defendant merely has the obligation to produce evidence while the burden of proof remains with the prosecution. It may seem a fine point, but it could potentially affect how a jury deliberates on the question and thus impact the result. Unfortunately for the defendant, the jury never even got to consider the question in this case. But Justice Chin pretty much issued a warning to trial courts as to how they’re instructing juries.


November 2008