My colleague Prof. Amy Ronner has a new and intriguing article on adoption by gay parents, “When Courts Let Insane Delusions Pass the Rational Basis Test: The Newest Challenge to Florida’s Exclusion of Homosexuals from Adoption.”
It’s available on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1721578
The abstract reads:
Florida was the only state to categorically exclude homosexuals from adopting children. Recently, a gay prospective father, Frank Martin Gill, successfully challenged the constitutionality of that homophobic statutory provision. The State of Florida appealed and The Third District Court of Appeal, affirming Judge Cindy S. Lederman, concluded that Florida’s statute violated Gill’s equal protection rights. See Fla. Dep’t of Children & Families v. In re Matter of Adoption of X.X.G. and N.R.G., 35 Fla. L. Weekly D2107 (Sept. 22, 2010).
This article, one of the first to address this high profile decision, looks at the constitutional issue in a new way. It yokes together what might seem to be two distinct areas of the law: the doctrine of insane delusion under wills and trusts’ law and rational basis review in constitutional law. Its narrow thesis is that the statutory exclusion of homosexuals from adoption is based on an insane delusion and that any court upholding it under the rational basis test is itself insanely deluded. On a broader level, however, this article explores the damage that results when courts use the rational basis test to uphold legislation which is premised on an irrational belief that is refuted by ample evidence to the contrary.