Appeals court: Florida ban on adoption by gays unconstitutional

Wednesday’s ruling means Frank Martin Gill can remain the parent of two boys he started fostering in 2004.

Miami Herald

Wednesday’s ruling means Frank Martin Gill can remain the parent of two boys he started fostering in 2004.

MIAMI — An appeals court on Wednesday struck down Florida's controversial ban on adoptions by gay men and women as unconstitutional, and Gov. Charlie Crist and the state's child-welfare chief announced hours later that they will immediately cease to enforce the ban.

In a unanimous ruling, a three-judge panel of the 3rd District Court of Appeal said there is no "rational basis'' for excluding gay men and lesbians from the pool of potential adoptive parents, upholding a November 2008 opinion by Miami-Dade Circuit Judge Cindy Lederman.

Calling Wednesday "a very good day for Florida'' and "a great day for children," Crist told reporters his administration will immediately cease enforcing the statute, which has held sway over Florida child welfare policy since 1977, when the Legislature voted overwhelmingly to exclude gays and lesbians from adopting.

"Children deserve a loving home to be in, and the opportunity for judges to make this call on a case-by-case basis for every adoption," said Crist, who once supported the ban. The U.S. Senate candidate reversed himself after he left the Republican Party and began courting liberal and moderate voters.

George Sheldon, the Department of Children and Families secretary who voted against the ban while representing the Tampa area in the 1977 Legislature, said the District Court of Appeal's decision "has statewide application, so, as of today, the statute is unconstitutional. The department will no longer enforce the ban." Though Sheldon has opposed the adoption ban, he said he had no choice but to defend the statute in court as the head of Florida's child-welfare agency.

Wednesday's decision means Frank Martin Gill will be allowed to remain the parent of his two sons, identified only as X.X.G. and N.R.G., whom Gill and his longtime partner adopted from the state's foster care system in 2008. Gill had been foster-parenting the boys since 2004.

The 35-page opinion was signed by judges Vance E. Salter, Frank A. Shepherd and Gerald B. Cope Jr.

"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 appeal ruling states. "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 court acknowledged its ruling is likely to be appealed.

On Wednesday, Attorney General Bill McCollum, whose office represented the state in the case, declined to say what action he will take.

Gill took custody of the two boys in 2004. X.X.G. was 4 years old and N.R.G. was 4 months old. DCF had removed them from their mother due to abandonment and neglect.

"X.X.G. arrived wearing a dirty adult-sized T-shirt and sneakers four sizes too small. Both children were suffering from ringworm and the four-month-old suffered from an untreated ear infection. X.X.G., the four-year-old did not speak, and his main concern was changing, feeding and caring for his baby brother," the appeals court wrote.

"The children thrived in (Gill's) household," the opinion adds. "It is clear to this court that (Gill) is an exceptional parent."

Lederman's trial lasted four days. A transcript of the closed trial showed testimony from dueling psychologists, social workers and experts.

DCF presented two university professors, one an ordained Baptist minister, the other a scholar who acknowledged he was guided largely by biblical teachings, to bolster the agency's contention that gay men and lesbians are more likely to suffer from mental illness, substance abuse or make harmful lifestyle choices. Lederman dismissed the testimony, saying the men "failed to offer any reasonable, credible evidence to substantiate their beliefs."

The appeals court agreed, saying the department's experts' "read selectively'' from scientific research, sometimes touting studies incorrectly.

Gill's attorney, Howard Simon, also praised the ruling.

"Finally, a piece of 30-year-old prejudice has been struck from the law books in Florida," said Simon, who heads the American Civil Liberties Union in Florida.

Gill told reporters that for more than a year he has lived in fear that the state would take his boys away. And now, he and his boys can have peace. "At least for today," Gill said, "the law is gone and hopefully it will stay gone."

On the other side of the issue, conservatives and religious groups said they will not give up the fight to preclude gay men and lesbians from forming adoptive families.

"Florida prefers that children be placed in homes where there is the potential for a mother and father. Homosexual adoption excludes children from ever having the opportunity for both genders — a mom and a dad in the household. That is the real basis for this law," said Mathew Staver, founder of the Orlando-based Liberty Counsel.

"We're going to be in this for the long haul," Staver added. "We believe, at the end of the day, this will be reversed by the Florida Supreme Court."

Times/Herald Tallahassee bureau reporter Marc Caputo and Herald reporter David Smiley contributed to this report.

Appeals court: Florida ban on adoption by gays unconstitutional 09/22/10 [Last modified: Thursday, September 23, 2010 12:31am]

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