With gay adoption upheld by court, state won't ask about sexual orientation

After an appeals court struck down Florida's controversial gay-adoption law, child welfare administrators quickly issued new instructions Thursday to foster-care workers throughout the state:

When it comes to sexual orientation, from now on, don't ask.

On Wednesday, a three-judge panel of the Third District Court of Appeal in Miami ruled unanimously that Florida's ban on adoption by gay men and lesbians was an unconstitutional form of discrimination that served no "rational'' purpose.

The case involved two former foster children who were adopted in 2008 by Frank Martin Gill, a gay North Miami man, with the approval of a Miami-Dade judge. The state Department of Children & Families appealed the decision to the Miami appeals court, which upheld the adoption in a strongly worded opinion signed by judges Vance E. Salter, Frank A. Shepherd and Gerald B. Cope Jr.

On Thursday, DCF's assistant secretary for operations, Peter Digre, instructed agency administrators across the state to immediately cease considering sexual orientation when reviewing applications from prospective adoptive parents.

"Based on the ruling that the current law is unconstitutional, you are no longer to ask prospective adoptive parents whether they are heterosexual, gay or lesbian, nor are you to use this as a factor in determining the suitability of applicants to adopt," Digre wrote. "Focus your attention on the quality of parenting that prospective adoptive parents would provide, and their commitment to and love for our children."

Also Thursday, Gill's legal team at the American Civil Liberties Union issued a statement urging DCF Secretary George Sheldon to forgo appealing the Miami ruling to the state Supreme Court.

"If the state chooses not to appeal, the appellate court decision will be binding on trial courts statewide and will allow lesbians and gay men who are interested in adopting —- no matter where they live in the state — to apply and be evaluated under the same criteria applied to everyone else," said Howard Simon, the ACLU's Florida director.

"This is precisely what our litigation has sought to achieve," Simon added. "If the state chooses not to appeal, justice will have been served."

Sheldon said he is still reviewing the appeals court ruling and has not made any decisions on how his agency will proceed. But he said the wishes of the Gill family will be a "significant'' factor in his decision.

"I really want to thoroughly analyze this," Sheldon said.

In the meantime, Sheldon sought to reassure Gill, as he has done in recent weeks, that DCF will not remove the two boys, no matter how the case ends. "This department is not in the business of taking away kids from individuals when the kids are well-adjusted and taken care of."

Florida Attorney General Bill McCollum may also appeal the ruling to defend the validity of the statute. On Thursday, a spokeswoman for McCollum said no decision has been made.

Gay-rights opponents have pinned their hopes on an appeal, confident that the Supreme Court would uphold the state law. But many legal experts said the high court would probably uphold the appeals court's decision.

It's unclear whether state lawmakers would try to trump the court ruling with a constitutional amendment, or with another law that might pass constitutional muster. One state House member, Republican Charles E. Van Zant of Palatka, said through an aide that he was unhappy with the ruling.

"He is against the judges' ruling, and he wants to look into matters further," said district aide Roy Alaimo. "He wants to review it and then think about his options."

The Gill decision was a watershed ruling for gay-rights activists, who had failed to overturn Florida's adoption ban in four previous legal battles over the past two decades.

In the Gill case, the Third DCA found that the state law excluding gay men and lesbians from adopting — the last law of its kind in the country — had no "rational basis'' and violated the state constitution's guarantee of equal protection under the law.

State officials argued that the 33-year-old law is designed to promote adoption by married couples, described by the state as offering the best home environment for children. But this argument was undermined, the appeals court said, by other state laws that allow single parents to adopt, and allow gays to serve as foster parents and even permanent guardians.

"It is difficult to see any rational basis in utilizing homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on adoption by those same persons," the appeals court said.

In striking down the gay-adoption ban, the Florida appeals court endorsed an argument that was flatly rejected by a federal appeals court just six years ago.

In the earlier case, which challenged the Florida law as a violation of the U.S. Constitution, not the state constitution, the federal court said the state did have a rational basis for banning gay adoptions, even while allowing homosexuals to be foster parents.

That court said Florida could draft different rules for foster care because it has ''neither the permanence nor the societal, cultural and legal significance as does adoptive parenthood."

In its 2004 ruling, the federal court also said the scientific studies on the qualifications of gay parents were far from conclusive. "Given this state of affairs, it is not irrational for the Florida legislature to credit one side of the debate over the other," the court said.

But in its ruling Wednesday, the Florida appeals court said the scientific evidence overwhelmingly showed that homosexuals can raise children just as well as heterosexuals, and found that the state used shaky science to support its argument that homosexual homes "may be less stable."

Fran Allegra, who heads the Miami-based Our Kids private foster-care agency, said Wednesday's ruling could increase the number of parents who are willing — and able, now — to adopt or foster-parent children. Some otherwise qualified men and women declined to become foster parents because they did not want to bond with a child they could not, under state law, adopt.

Generally, Allegra said, child welfare administrators recruit foster and adoptive parents through community groups and associations, such as churches. More than anything, interest in adoption is spread by word-of-mouth, and, Allegra said, gay men and lesbians already are talking about their new options.

"Once we connect with this community," she said, "you will see the same thing happening."

With gay adoption upheld by court, state won't ask about sexual orientation 09/23/10 [Last modified: Thursday, September 23, 2010 8:30pm]

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