KEY WEST — Two months after the foster child came to live in Wayne LaRue Smith's two-story Key West home, the 5-year-old boy looked up from the kitchen table and, in a plaintive voice, asked what seemed a simple question.
"Will you be my daddy?"
At first, Smith, a foster father who has cared for 33 children in state custody, could not say yes.
Smith, who is openly gay, could raise other people's children. But in Florida, the only state that outright bans all gay people from adopting, he could never adopt a child of his own.
Last month, a Monroe Circuit judge became only the second judge in Florida history to allow a gay man or lesbian to adopt a child.
Smith's may be a limited victory. Though Circuit Judge David John Audlin Jr.'s order will stand, it likely will hold little sway over future cases, scholars say. Moreover, the state Attorney General's Office will not appeal the order, meaning it will never be reviewed by a higher court.
With another legal challenge set to begin soon in Miami — one that is being contested — Audlin's order could become a historical footnote.
To Smith and his new son, though, it has the power of a landmark decision, he said.
"I knew that in our hearts, from that moment on that, one way or another, we were going to answer that question 'yes,' " Smith said. "It's seven years later, but now we can.
"It was a defining moment," Smith said of the boy's request. "There are moments in life I won't ever forget. In that instant there was nothing I wanted more than to say yes. But this crazy state I live in won't let me."
The Attorney General's Office, which is defending the adoption ban in the Miami case next month, has argued in court records it is upholding public morality and providing for the healthy development of foster children by ensuring they are raised by dual-sex parents.
The state did not defend the ban, however, in Audlin's court.
In a strongly worded 67-page order signed Aug. 29, Audlin wrote that Florida's 1977 gay adoption ban arose out of "unveiled expressions of bigotry" when the state was experiencing a severe backlash to demands for civil rights by gay people in Miami.
"Disqualifying every gay Floridian from raising a family, enjoying grandchildren or carrying on the family name, based on nothing more than lawful sexual conduct, while assuring child abusers, terrorists, drug dealers, rapists and murderers at least individualized consideration," Audlin wrote, was so "disproportionately severe" that it violates the state and U.S. constitutions.
Wayne LaRue Smith, 53, is an unlikely iconoclast. He grew up in Reno, Nev., and enlisted in the Air Force during the Vietnam War. He was stationed in the Four Corners area of Arizona, where he helped train crews at a radar bomb scoring site in the desert.
Smith earned degrees from Arizona State University and the University of Arizona's law school, and moved to South Florida in 1988. He met his partner, Dan Skahen, a real estate broker, at a volunteer leadership workshop in March 1992. Smith practices commercial law.
Even before 1999, the two men discussed having a family together. But that year, they took the first concrete steps. They enrolled in a Department of Children and Families pre-adoption course and began the screening process to adopt a child from the state's foster care system. Smith said they were aware of the ban.
"We didn't actually set out to be foster parents," Smith said. "We set out to become adoptive parents."
But during one of the training classes, Smith and Skahen were told of the state's "desperate" need for foster parents.
And because the state does not restrict gay people from fostering, the men became instant dads.
They quickly established a routine, beginning with a child's first night at the house with the white picket fence.
New children would be encouraged to swim in the family pool. Smith and Skahen found the water was comforting to the youngsters, and the children discovered they were safe there, they said.
The men have fostered more than 30 children since DCF accepted their application nine years ago, from a 2-day-old to a 17-year-old. Still, there was something missing.
The little boy who had come to their home in 2001 wanted a real father, Smith said. Not a foster dad. Not a permanent guardian — a legal nicety that occurred in 2004 granting Smith the ability to make decisions on the boy's behalf.
At the doctor's office, at the grocery store, the boy seemed to visibly deflate every time a stranger asked Smith, "Is that your son?" Smith said.
"The applicant is seen as nurturing, stable and devoted," a social worker's home study concluded. "As an individual, he is considered to hold high moral character and is known to be gentle and patient."
The 12-year-old boy's teacher testified the couple were among the most involved and nurturing parents in her class. "I must confess," she told a judge, "the first year I had him, knowing he was of gay parents, I looked for things, and I found nothing."
Smith filed an adoption petition on Feb. 29. State child welfare administrators wrote the application would have been a no-brainer, but for that one intractable problem: "This home study is not approvable due to (Smith's) open disclosure of his sexual orientation, and therefore the adoption is disallowable by law," it concluded.
Smith and Skahen now are raising the 12-year-old boy Smith adopted, and a 10-year-old foster child whom they expect to remain with them until he reaches adulthood. There also are two cats, a dog and two hermit crabs.