There’s rarely any pleasure to be taken from the pain of a private (former) couple’s custody battle, but in the overarching sense, there is some hope to be derived from a decision handed down by the Florida Supreme Court last week. In 2004, a lesbian couple from Brevard County (identified only by initials in court documents) birthed a child together. One of the women provided the egg to be fertilized and implanted in the other. Two years after the child was born, the couple separated and the birth mother ran off to Australia with the child, leading to a huge mess involving the courts, sperm-donor laws and private investigators hired by the biological mother. On Thursday, the high court ruled in favor of the biological mother – to the extent that a lower court will decide visitation as appropriate for the child. But more than that, the court directly addressed the intentions and rights of each part of a gay couple in Florida, even citing apparent violations of the federal and state Equal Protection Clauses inherent to state custody laws. What?
“We further conclude that this distinction is unconstitutional as applied because it lacks a rational basis,” the decision read. “Regardless of whether the individual’s parental rights have developed into a fundamental right, as T.M.H.’s [the biological mother’s] have, the distinction is unconstitutional as applied to same-sex couples because the statute does not permit same-sex couples – and only same-sex couples – to qualify as a ‘commissioning couple.’”
In other words, discriminating against same-sex couples was ruled unconstitutional in a case that can now – very faintly – be seen a precedent to inevitable marriage equality in the state of Florida. Bring it.
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