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October 22, 2010

Florida adoption case symbolizes vast cultural change

If you want a sign of how profoundly social views of homosexuality have shifted in the last 20 years, look no further than what happened today in Florida, when conservative AG Bill McCollum decided not to ask the Florida Supreme Court to review an appellate court decision that the state law banning gay men and lesbians from adopting children is unconstitutional.

The law was passed in 1977 in a flurry of anti-gay bigotry inspired by Anita Bryant's victory in repealing an anti-discrimination ordinance that had been enacted in Dade County. The ACLU has brought lawsuits in state and federal and then state again courts for 20 years in the effort to eliminate the prohibition of gay adoption. Last month they won a decision in an intermediate state appellate court, and the state agency responsible for adoptions announced that it had no desire to appeal the ruling.

With McCollum's decision, the last of Anita Bryant's hateful legacy has been erased. Ding dong, the witch is (finally) dead.

Huge congratulations to ACLU lawyer Leslie Cooper.

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I find it interesting that the homophobic Attorney General of Florida decides not to appeal a pro-gay ruling, while the allegedly gay-supportive President of the United States immediately files an intent to appeal and a request for an emergency stay of an injunction that forbids the enforcement of a law he says he opposes.

Here is a link to an Americablog posting that cites a National Law Journal article that says that there is no obligation to appeal a law declared unconsitutional. The article apparently cites 13 fairly recent instances in which the DOJ declined to appeal laws passed by Congress.

http://gay.americablog.com/2010/10/white-houses-duty-to-defend-law.html

Hi Jay -

I'm responding to your three posts.

First as to the precedent - I have never said that Presidents lack the authority to decline to defend a federal law. The point has always been whether the DADT (or DoMA) decisions fall within long established categories, or whether taking that step in this case would set a much worse precedent for executive obedience to the law than what could be achieved in the DADT battle. There may have been 13 instances of declining (I can't find even the stub of the NJ article, so I don't know who wrote it) or 113 - the question is still the same. And I think the answer is still the same, which I spelled out here - http://hunterforjustice.typepad.com/hunter_of_justice/2010/10/do-appeal-dont-lie-the-question-of-whether-justice-should-appeal-decisions-to-strike-down-dadt-and-d.html.

Remember that WHEN a decision to decline is made is extremely important - I would have a totally different analysis if the administration declined to defend after an APPEALS court found the policy unconstitutional. (Which is essentially what SG Kagan did in the Witt case, btw, a year ago, when it could have gone to the Supreme Court) A decision from a district court judge is not only easy to displace later, its has zero weight as binding precedent. Other judges can cite it, yes, but not one judge in America is bound by it. And most of those precedents for declining to defend being cited, such as Chadha, were decisions not to pursue further appeals, after a Court of Appeals had found the law unconstitutional - very few if any rested on a district (trial) court decision. (That is also the case in Florida - the decision came after an appeals court ruled the adoption ban unconstitutional.)

As to the recent Gates memo - As a practical matter it freezes the status quo for as long as Gates wants it to, since it is very easy for discharges or anything else to die in the bureaucracy. I think it is the administration's way to buy time, and I don't think it would have happened without the decision in the LCR case. My main point is that to argue that the administration has a duty to defend is NOT to diminish the importance of the district court opinion - even if indirectly, that opinion will prevent discharges.

Lastly, I am certainly no apologist for this administration. See my post entitled "New administration policy: Don't Ask, Don't Tell, Don't Lead."

Thank you very much for your reply. I need to add how much I appreciate all you do. I read your blog almost every day and always appreciate your insights.

Thanks very much, Jay - I really appreciate your saying that.

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