TALLAHASSEE — Florida's gay adoption ban won't be enforced anywhere in the state after the Department of Children and Families decided Tuesday not to appeal the ruling overturning the ban to the state Supreme Court.
The only way the case stays alive is if Attorney General Bill McCollum separately decides to appeal to the Supreme Court to keep the ban in place. He would have to do so without the support of the child welfare agency, which is changing its forms so adoptive parents aren't asked if they're gay.
If McCollum doesn't appeal, it will end the three-decade old ban that was considered the strictest in the country. The state's 3rd District Court of Appeal last month upheld a 2008 ruling by a Miami-Dade judge, who found "no rational basis" for the ban when she approved the adoption of two young brothers by Martin Gill and his male partner.
McCollum's office said he isn't sure how he will proceed, but his lawyers will talk with DCF's lawyers before a final decision is made. A decision to appeal must be made by Oct. 21.
"So now this is all in Bill McCollum's lap," said Howard Simon, executive director of the ACLU of Florida, which represents Gill. "The big question is what is there to appeal? That opinion is not going to be disturbed."
That's the conclusion DCF reached.
"We had weighed an appeal to the Florida Supreme Court to achieve an ultimate certainty and finality for all parties. But the depth, clarity and unanimity of the DCA opinion — and that of Miami-Dade Judge Cindy Lederman's original circuit court decision — has made it evident that an appeal would have a less than limited chance of a different outcome," said DCF spokesman Joe Follick.
Gov. Charlie Crist said after last month's ruling that DCF wouldn't enforce the gay adoption ban. The ACLU initially urged an appeal to put a final end to the case, but the ACLU and DCF agree that the ban can't be enforced statewide because of the ruling.
Gill supports DCF's decision.
"I understand that if the state does not appeal this decision, it will apply to all Floridians and put an end to this baseless law that has harmed my kids and so many other children and families," Gill said in a press release. "I am eager to adopt my two children and to remove this barrier to adoption for other children as soon as possible."
State Supreme Court spokesman Craig Waters said the DCA decision is binding in all state courts until a different district court comes up with a contrary ruling. It wasn't immediately clear how that could happen if the law isn't enforced.