The state will continue with its appeal of a Miami judge’s ruling that invalidated the state’s ban on gay adoption, despite Gov. Charlie Crist’s acknowledgment earlier this month that he disagrees with the ban.
Florida’s ban on adoptions by gay people, the only one in the nation, was found unconstitutional in 2008 by Miami-Dade Circuit Judge Cindy Lederman in the case of Martin Gill, who was allowed to adopt two boys despite being openly gay.
The state Department of Children and Families (DCF) has appealed Lederman’s ruling to the 3rd District Court of Appeal, seeking to keep the ban in place.
But earlier this month, Gov. Charlie Crist, to whom DCF answers, said he doesn’t support the ban – saying that decisions on adoptions by gay couples, should be left up to judges on a case by case basis as they are for heterosexual couples. The controversial stand came after Crist left the Republican Party, and was a change in position. Crist had avoided directly taking a stance on the issue of whether the law should allow gay adoption, but said last year that since the law does not allow it, he didn’t either because “I always support the law.” That changed when Crist said at an event in Sarasota in mid-June that he thinks “a better law” would be one where judges make the decision case by case.
Department of Children and Families Secretary George Sheldon said in an interview with The News Service of Florida last week that the agency doesn’t plan to drop its appeal, regardless of Crist’s position, saying that officials want to get a clear law statewide on whether gay couples can adopt, rather than leaving the record open. Lederman’s opinion wouldn’t necessarily be binding on other judges if the case were left to stand with no appellate ruling.
“This law ought to be determined by an appellate court, that it either meets or doesn’t meet the constitution,” said Sheldon. “I think what everybody is looking for is some statewide finality.”
The original plaintiffs in the case – including lawyers for Martin Gill and a separate lawyer representing the children – agree that the case should move forward with the hope of throwing out the law statewide, rather than stopping at only allowing some gay couples – those who happen to go before a judge who thinks the ban is unconstitutional – to have a chance to adopt.
“I don’t think the appeal should be dropped, the point of this is to get this law off the books,” said Howard Simon, executive director of the ACLU of Florida, which represented Gill. “Every day this law is on the books, children are harmed. They are kept in Florida’s troubled foster care system, they are denied a permanent home.”
Sheldon walks a fine line between supporting the law and the idea. He notes that he didn’t vote for the ban when he was a lawmaker, but said state agencies are bound to uphold laws passed by the Legislature – and he reads that to mean the state is bound to appeal when a law is thrown out.
“If you start giving the executive branch discretion as to which laws to enforce, you really undermine how this whole process works,” Sheldon said. “I don’t think you want governors doing that, I don’t think you want agency heads doing that.”
DCF is represented in the case by Attorney General Bill McCollum, who has also declined to take a personal position on the gay marriage ban as a policy issue, telling the Palm Beach Post last year that he couldn’t publicly take a position because “I have a law to defend.
“I think as attorney general I have to defend that law,” McCollum said, according to the Post. “You can ask me that question when that case is resolved.” McCollum is a Republican candidate for governor.
Sheldon said last week he’s troubled that it has taken the appeals court so long to rule on the case. It’s not clear when the court might release an opinion.
One question that remains is what would happen to the two children in the instant case should the appeals court overturn the Miami judge’s decision and rule that gay adoptions should continue be banned in Florida, making the Gill adoption illegal.
In oral argument before the appeals court last August, Deputy Solicitor General Tim Osterhaus, arguing the case for McCollum’s office, in answer to a question about what relief the state was seeking, said it was seeking to have the adoption reversed, making the children “available for adoption,” anew. The agency quickly backtracked, with a spokeswoman saying in November that the agency had no intention of removing the children from Gill’s home.
Now, the agency hedges a bit, saying it’s “premature and impossible to say” exactly what would it would do if it wins.
“But it is clearly never the department’s objective in any situation to disrupt a stable environment in which children are safe and secure,” DCF Spokesman Joe Follick said in a statement provided to the News Service. “In this particular situation, like any other, we would evaluate the facts and history and the well-being of the children and do our best to maintain their lives in the least disruptive manner.”
Charles Auslander, a lawyer representing the two children adopted by Gill, agrees with Simon that the case should continue, even though technically it could mean that it risks invalidating Gill’s adoption should he lose on appeal.
“I don’t believe for a moment, and I hope I would be correct in this, that the state would ever seek to remove the children,” Auslander said.
If the appeal were dropped, presumably Gill’s adoption would stand, and Simon acknowledged there’s risk in going up the court ladder, possibly all the way to the Supreme Court. But, he said, Gill has made that decision, not his lawyers.
“He is our client,” Simon said. “He is wanting to get a final resolution.”
By David Royse
The News Service of Florida
