A Miami appeals court ruled Wednesday that Florida’s 33-year-old ban on adoptions by gay people is unconstitutional, affirming as legal the adoption of two boys by a gay North Miami man and his partner.
The decision by the 3rd District Court of Appeal strikes another blow to the ban, which was the only one fully enforced in the country. But the question of whether gay men and lesbians should be allowed to adopt children in Florida may ultimately be decided by the state Supreme Court.
“Given a total ban on adoption by homosexual persons, one might expect that this reflected a legislative judgment that homosexual persons are, as a group, unfit to be parents,” the court said in its 42-page opinion. “No one in this case has made, or even hinted at, any such argument. To the contrary, the parties agree ‘that gay people and heterosexuals make equally good parents.'”
The 3rd DCA’s ruling means that Frank Martin Gill and his partner will remain the parents of two boys who they first took in as foster children in 2004 and later adopted and that the state will stop enforcing the ban.
“This is just the news that we have been waiting so anxiously for here,”Gill said in a statement. “This is a giant step toward being able to give our sons the stability and permanency that they are being denied.”
The children, who are identified in court filings only by their initials, were represented separately from Gill. Lawyers for the two boys, who argued that the children should stay with Gill, said they were pleased with the ruling.
“By all accounts Mr. Gill is an excellent parent who has provided excellent care to his children for the past six years,” said Elliot Scherker, who presented the argument on behalf of the children at the appeals court . “This decision allows them to become a family and upholds the children’s rights to a stable and loving home.”
The prohibition had been in place since it was approved in 1977 by the state Legislature. The singer and former beauty queen Anita Bryant also led a campaign that year that overturned an ordinance approved by Miami-Dade County that banned discrimination against gays.
“This shows you how easy it is to enact lousy legislation and how difficult it is to undo it,” said Howard Simon, executive director of the Florida chapter of the American Civil Liberties Union, which has been representing Gill.
Social conservatives expressed outrage in response to the 3-judge panel’s ruling, though, and noted that the case was ripe for appeal. John Stemberger, president of the Florida Family Policy Council said the court was completely “out of step” with social science research on the topic.
“The court has essentially ruled that two dads are just a good as a mom and a dad,” Stemberger said. “This is empirically false. There is no crisis in the need for adoptive parents..”
Gill’s case wasn’t actually the first in which a judge found the law unconstitutional. Monroe Circuit Judge David Audlin allowed Key West lawyer Wayne LaRue Smith to adopt a boy he had been raising in foster care in August of 2008, and said the ban was unconstitutional.
The state did not appeal the case, but a few months later, Miami Circuit Judge Cindy Lederman approved Gill’s adoption request and overturned the law in a much more closely-watched case, which the state appealed to the 3rd DCA. Arguments in the appeals court on the case were held more than a year ago.
“It’s a very good day for Florida,” said Gov. Charlie Crist, who supports allowing gay adoption – a change from when he ran for governor in 2006 and said he favored keeping the ban. “It’s a very good day for children. Children deserve a loving home to be in and the opportunity for judges to make this call on a case- by-case basis with every adoption I think is wonderful, and it’s a great day for Florida and for kids.”
Crist said the appeals court’s ruling had statewide application, but that he would support Department of Children and Families Secretary George Sheldon if he wants the case to go to the state Supreme Court for a final review.
Sheldon also has made it clear that he didn’t support the ban – he voted against it as a lawmaker – but had said he was bound to uphold the law as secretary. But he said earlier this week, and repeated on Wednesday, that allowing the case to go all the way to the Supreme Court would give the ruling additional weight – and avoid the possibility of a “rogue judge” refusing to follow the ruling – although it would also raise the possibility of having the law eventually upheld and the ban restored.
Sheldon said Wednesday that the department has 30 days to review the decision, but will likely decide whether or not to appeal sooner.
“The primary consideration on whether to appeal is finding the balance between the value of a final ruling from the Florida Supreme Court versus the impact on the Gill family,” Sheldon said Wednesday. He also said earlier this week that even if the law is eventually found constitutional and upheld, the department has no plans to remove the two children from the Gill home.
According to the Department of Children and Families, there are about 850 children in Florida who need adoptive parents at any given time.
By Kathleen Haughney
The News Service of Florida
