State, Dept. of Health and Rehabilitative Services v. Cox

Citation627 So.2d 1210
Decision Date01 December 1993
Docket NumberNo. 93-01138,93-01138
Parties, 18 Fla. L. Weekly D2551, 18 Fla. L. Weekly D2668 STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. James W. COX and Rodney M. Jackman, Appellees.
CourtCourt of Appeal of Florida (US)

Anthony N. DeLuccia, Jr., Dist. Legal Counsel, Dept. of Health and Rehabilitative Services, Fort Myers, and Linda K. Harris, Deputy Gen. Counsel, Dept. of Health and Rehabilitative Services, Tallahassee, for appellant.

Nina E. Vinik, American Civ. Liberties Union Foundation of Florida, Miami, and Doris A. Bunnell, Bradenton, for appellees.

En Banc.

ALTENBERND, Judge.

The plaintiffs, Mr. Cox and Mr. Jackman, voluntarily disclosed to HRS that they are homosexual. Each has been denied the opportunity to apply to adopt a child because section 63.042(3), Florida Statutes (1991), prohibits adoptions by homosexuals. At

summary judgment, they convinced the trial court that this statute is unconstitutional for several reasons. We reverse because the plaintiffs failed to establish that the legislature lacked the constitutional power to make this public policy decision. The debate over the nature of homosexuality and the wisdom of the strictures that our society has historically placed upon homosexual activity cannot and should not be resolved today in this court. For purposes of governance, the legislature is the proper forum in which to conduct this debate so long as its decisions are permitted by the state and federal constitutions.

I. PROCEEDINGS IN THE TRIAL COURT

The factual record in this case is very limited. It is undisputed that Mr. Cox attempted to sign up for HRS parenting classes in Sarasota, Florida, on March 22, 1991. At that time, he voluntarily disclosed that he is homosexual. Mr. Jackman took the same steps on April 3, 1991. HRS became aware that the two men lived at the same address and sent them a letter in late April advising them that HRS would not accept an application for the adoption of a child from either man in light of section 63.042(3). 1 That statute, enacted in 1977, provides: "No person eligible to adopt under this statute may adopt if that person is a homosexual." See Ch. 77-140, Laws of Fla.

After receiving the letter, the two men filed this action to declare section 63.042(3) unconstitutional on its face and as applied to them. They based their complaint on the right of privacy, substantive due process, and equal protection. Both sides filed motions for summary judgment, and the trial court decided to determine the facial validity of the statute based on the above-described facts and any information the parties wished to provide to the court. By stipulation, the parties filed copies of various law review articles and other reports, editorials, and discussions appearing in magazines and journals. Although both Mr. Jackman and Mr. Cox admitted that they are homosexual and claimed no confusion concerning the definition of that term, the trial court asked the parties to brief the potential ambiguity of the undefined statutory word, "homosexual."

The trial court, relying heavily upon an unappealed circuit court opinion in Seebol v. Farie, 16 Fla.L.Weekly C52 (16th Cir.Ct.1991), 17 Fam.L.Rep. (BNA) 1331 (Mar. 15, 1991), 2 held that section 63.042(3) is void for vagueness and that it violates homosexuals' rights of privacy and equal protection. HRS filed this appeal. 3

II. A PROBLEM OF METHODOLOGY

Before addressing the constitutional issues, we consider a serious procedural problem arising out of the parties' attempt to resolve these issues on summary judgment. We recognize that the facial constitutionality of a statute is a question to be resolved by the court, and that evidence concerning the facts of a specific case are frequently unnecessary. Department of Revenue v. Florida Home Builders Ass'n, 564 So.2d 173 (Fla. 1st DCA), review denied, 576 So.2d 286 (1990); Sims v. State, 510 So.2d 1045 (Fla. 1st DCA 1987). Depending on the nature of the statute and the basis for the constitutional challenge, however, the issue of facial constitutionality can be a mixed question of fact and law. Glendale Fed. Sav. & Loan Ass'n v. State, Dep't of Ins., 485 So.2d 1321 (Fla. 1st DCA), review denied, 494 So.2d 1150 (Fla.1986). When the constitutional issue is a mixed question of fact and law, the parties need to present evidence. In the absence of prima facie evidence, the party with the burden of proof cannot prevail. We conclude that the constitutional issues raised in this case concerning vagueness and equal protection The trial court's opinion discusses the plaintiffs' "unrebutted and overwhelming evidence" establishing that homosexuals have normal abilities to rear children. In truth, there is virtually no evidence in the record. The parties merely submitted copies of law review articles and other reports in magazines and journals. 4

are mixed questions of law and fact and that the plaintiffs have failed to present evidence to support the trial court's ruling at this stage of the proceedings.

There are only two major scientific articles in the record. One is a review of research performed by various people. J. Charlotte Patterson, Children of Lesbian and Gay Parents, Child Dev., Oct. 1992, at 1025. The record contains no information concerning Ms. Patterson's credentials. The review focuses not on adopted children, but on the natural children of homosexuals. It discusses the need for future research and does not render any scientific or legal opinion concerning the best interests of children in need of adoption.

The other major article is a report describing an anonymous survey of only twenty-three homosexual parents and sixteen heterosexual single parents. Mary B. Harris & Parlene J. Turner, Gay and Lesbian Parents, J. Homosexuality, Winter 1985/86, Vol. 12. Apparently, this small sample of homosexual households was located in New Mexico. The article does not focus on children adopted by homosexuals. A professor of "educational foundations" and an associate professor of home economics conducted this survey. There is no information concerning their expertise in this area. The record is also silent on the professional reputation and objectivity of the Journal of Homosexuality.

The parties to this lawsuit suggest that forty-eight states permit adoption by homosexuals. If this is true, the experience in those states might provide relevant evidence concerning these constitutional questions. Nevertheless, the record contains little, if any, information about children adopted in other states.

Although The Atlantic Monthly has not been recognized as an authoritative source on these issues, the plaintiffs filed a copy of a noteworthy article from that magazine. Chandler Burr, Homosexuality and Biology, The Atlantic Monthly, Mar. 1993, at 47. The article claims that the "issue of homosexuality has arrived at the forefront of America's political consciousness." It notes that biology, as a scientific discipline, has begun to ask fundamental questions about the nature and causes of homosexuality. However, the article maintains that biology has only begun to provide "glimmers of answers." Id. at 47. After a lengthy discussion describing the preliminary nature of this research, the article observes: "[I]t would be wise to acknowledge that science can be a rickety platform on which to erect an edifice of rights." Id. at 65.

The parties have not established that the materials in this record are the type of information that a trial court may accept through judicial notice. See Sec. 90.202(11), (12), Fla.Stat. (1991). No showing was made that these articles would be the type of data reasonably relied upon by experts on these subjects and no expert witnesses were called to discuss or explain these reports. See Sec. 90.704, Fla.Stat. (1991). Neither the trial court nor this court has the training and expertise necessary to evaluate and apply the scientific studies in the record.

Although "trial by photocopy" may have been less costly to the parties, the issues before the court involve the constitutionality of a statute enacted by a majority vote in both houses of the legislature and signed into law by the Governor. These issues are important to the people of this state. The parties could not use this procedure simply to overlook or ignore unproven and disputed issues of fact. The trial court did not have a record to support a summary judgment in favor of the plaintiffs on any issue. Accordingly, we must reverse this summary judgment.

III. THE QUESTION OF VAGUENESS: HOMOSEXUAL ORIENTATION V.

HOMOSEXUAL ACTIVITY

Section 63.042(3) does not define "homosexual." Despite the fact that the The only other state that has enacted a similar statute is New Hampshire. See N.H.Rev.Stat.Ann. Sec. 170-B:4 (1991). That statute has withstood constitutional scrutiny. See Op. of the Justices, 530 A.2d 21 (N.H.1987). The New Hampshire statute defines "homosexual" as "any person who performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another person of the same gender." N.H.Rev.Stat.Ann. Sec. 170-B:2 (1991). In upholding its statute, the New Hampshire Supreme Court limited its definition to persons voluntarily engaging in homosexual activity reasonably close in time to the filing of the adoption application. Op. of the Justices, 530 A.2d at 294-295.

statute has been in effect since 1977, there are no reported cases in which a litigant has ever alleged that the term "homosexual" in section 63.042(3) is unconstitutionally vague. We have not been provided with any legislative history suggesting that anyone has ever attempted to amend this statute because of any perceived ambiguity. Mr. Cox and Mr. Jackman have admitted that they are homosexual and have never alleged that they found the term to be unconstitutionally vague. Thus, we are troubled by the trial court's unilateral ...

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