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In re Matter of Adoption of XXG and NRG, District Court of Appeal Florida, 3rd District, United States (22 September 2010)

Procedural Posture

A gay foster father petitioned to adopt the two foster children who had been placed in his care. The trial court granted his petition and found that the State statute banning adoptions by homosexuals was unconstitutional under the Florida Constitution. The Department of Children and Families appealed.


In 2004, XXG and his brother NRG, then aged four and four months respectively, were removed from their home because of abandonment and neglect and placed in the home of FG, a licensed foster parent. In 2006 the biological parents’ parental rights were terminated and FG applied to adopt the children. Florida State law provided that no homosexual person was eligible to adopt. The Department of Children and Families denied his application but acknowledged that it would have approved the application had it not been for this law.


Whether a law prohibiting adoption on the basis of sexual orientation was constitutional.

Domestic Law

Florida Constitution, Article I, Section 2 (“All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property… “).

Cox v. Florida Dept of Health & Rehab. Serv., Florida Supreme Court, United States, 1995 (holding that the law limiting adoption was constitutional).

Lofton v. Secretary of Department of Children and Family Services, United States Court of Appeals for the 11th Circuit, 2004 (holding that Florida law prohibiting homosexuals from adopting children did not violate equal protection under the Constitution of the United States).

Reasoning of the Court

All parties agreed that the law should be evaluated under the rational basis test, which provided that a court must uphold a statute if its classification had a rational relationship to a legitimate governmental objective. The question in this case, the Court stated, was whether the law had a rational basis.

The Department did not argue that the law reflected a legislative judgment that homosexual persons were, as a group, unfit to be parents. It argued that the law had a rational basis because children would have better role models and face less discrimination if they were placed in non-homosexual households, preferably with a husband and a wife as parents. The Court found this description of the law’s function to be inaccurate. It noted that the statute specifically allowed adoption by an unmarried adult, and did not restrict adoption to heterosexual married couples. Furthermore the statute contained no prohibition on placing children with homosexual persons as foster parents. Homosexual persons were also not prohibited from being legal guardians of children. The Court stated that it was “difficult to see any rational basis in utilising homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on adoption by those same persons”.

The Court reviewed the expert evidence and found that even the Department’s own expert testimony did not support its reasoning, because those experts acknowledged that in some instances homosexual persons could be fit parents. Experts did not support blanket exclusion. The Court observed that the legislature was permitted to make classifications but these must be based on real differences, which were reasonably related to the subject and purpose of the regulation. Under Florida law, homosexual persons were allowed to serve as foster parents or as guardians but were barred from being adoptive parents. All other persons were eligible to be considered on an individual case-by-case basis. The Court concluded that the statute lacked a rational basis.


The concurrences by Judge Salter emphasised that FG’s partner, and his partner’s child, were also members of the household and had formed bonds of attachment with the two foster children. The older foster child had lived there for half his life and the younger foster child had lived there for almost his entire life. The Department itself had conceded that the children were in a “wonderful household” and were well and appropriately cared for. A categorical ban on adoption by homosexuals was in conflict with the principle of the “best interests of the child”. The statute was directly contrary to the State’s interest in providing a stable and permanent home for the children.

The order of adoption was affirmed.

In re Matter of Adoption of XXG and NRG, District Court of Appeal Florida, 3rd District, United States (full text of judgment, PDF)