Religion & Law

Michael Perry has posted a new paper based on his recent book.  Here's an excerpt from the abstract:

On September 22, 2010, Florida?s Third District Court of Appeal ? an intermediate appellate court ? affirmed a ruling by a Florida trial court that a Florida statute banning adoption by homosexuals violates the Florida constitution. As it happens, the ruling by the Florida trial court was the principal subject of the Conclusion to my recent book, The Political Morality of Liberal Democracy (Cambridge Univ. Press, 2010). In the Conclusion, I wrote:



The Florida law not only violates the political morality of liberal democracy. The law ? according to which, again, no one otherwise eligible to adopt under Florida law ?may adopt if that person is a homosexual? ? is unconstitutional. The law is unconstitutional even from the perspective of Thayerian deference: Given the robust social-scientific consensus that has emerged to the effect that parenting by homosexuals is no less healthy for children ? no less in the ?best interests? of children ? than parenting by heterosexuals, Judge Lederman was right to conclude that no lawmaker could any longer plausibly think that the Florida law serves a legitimate governmental interest.

I cannot personally vouch for the "robust social-scientific consensus" regarding parenting by homosexuals, but I believe that bans on adoption by same-sex couples are problematic for an additional reason: in many cases, they amount to a refusal to recognize parent-child relationships that already exist.  Second-parent adoptions by the partner of a child's biological (and legal) parent are increasingly common.  Banning these adoptions does not end the caregiving relationship between the parent's partner and the child, but it does foreclose the stabilizing and protective role that the law can play within the relationship.