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Judge rules gays are able to adopt

Martin Gill reacts Tuesday after a judge ruled in Miami that a state law banning gay people from adopting is unconstitutional. Gill and his partner now can adopt two brothers, ages 4 and 8, whom he has cared for as foster children since December 2004.

Associated Press

Martin Gill reacts Tuesday after a judge ruled in Miami that a state law banning gay people from adopting is unconstitutional. Gill and his partner now can adopt two brothers, ages 4 and 8, whom he has cared for as foster children since December 2004.

MIAMI — A judge on Tuesday ruled unconstitutional a 31-year-old state law banning adoptions by gays, a victory for equal rights advocates that could thrust Florida into a bitter culture war.

Miami-Dade Circuit Judge Cindy Lederman said no scientific or legal reason exists to bar gay and lesbian people from adopting children. She ruled that the ban, the most restrictive in the country, violates the equal protection rights of both prospective parents and children.

"It is clear that sexual orientation is not a predictor of a person's ability to parent," the judge wrote in a 53-page ruling.

It is the second time in three months a Florida judge has ruled the state ban unconstitutional.

Lawyers for Florida Attorney General Bill McCollum, whose office is representing the state Department of Children and Families in the case, said they will appeal. Gov. Charlie Crist, who favors the ban, offered no immediate comment.

The ruling means that North Miami resident Martin Gill, 47, and his male partner can adopt two brothers, ages 4 and 8, whom he has cared for as foster children since December 2004. Lederman's decision does not set precedent elsewhere, even in Lederman's court, scholars say. But if it is upheld on appeal, it would upend a state law on the books since 1977.

"Our family just got a lot more to be thankful for this Thanksgiving," Gill said. "We are extremely relieved that the court has recognized that it is wrong to deny our boys the legal protections and security that only come with adoption."

Florida is the only state with a complete ban on gay adoption. Arkansas and Utah ban unmarried gay or straight couples from adopting or fostering children. Mississippi bans gay couples, but not single gays, from adopting.

Florida does allow gay and lesbian people to be foster parents.

In the case, the state presented experts who said gay couples are more likely to suffer from depression and abuse drugs and alcohol, and are four times more likely to attempt suicide.

Lederman soundly rejected the state's arguments in her ruling, noting that organizations such as the American Psychological Association, the American Psychiatry Association and the American Pediatric Association all support adoptions by same-sex couples.

"Sexual orientation no more leads to psychiatric disorders, alcohol and substance abuse, relationship instability, a lower life expectancy or sexual disorders than race, gender, socioeconomic class or any other demographic characteristic," the judge wrote.

A judge in Key West found the same law unconstitutional in August. But that ruling was not challenged by the state, limiting its legal reach.

Mike Allen, a constitutional law professor at Stetson University College of Law in Gulfport, said the Miami case is susceptible to an appeal.

The state Supreme Court ruled in a 1993 Sarasota case that banning gay adoptions does not violate equal rights protections, citing a lack of evidence.

What's different now, Lederman ruled, is that there is more evidence. But Allen said courts are generally unwilling to say one study or expert opinion is more valid than another. In those cases, they often defer to the policymakers — legislators.

"I would be surprised if either the (District Court of Appeal) there or the Florida Supreme Court are going to be particularly liberal-minded on this," Allen said. "We have to remember, the people who have been making these appointments are not wildly liberal folks."

Reaction on both sides was swift.

State Sen. Nan Rich, D-Weston, who has tried unsuccessfully to have the ban overturned in the Legislature, deemed Tuesday's ruling a victory for children. John Stemberger, chairman of the successful drive earlier this month to pass a constitutional amendment banning gay marriage in Florida, said it was the opposite.

Stemberger, an Orlando lawyer, called the ruling "classic judicial activism" and predicted it would be reversed on appeal.

He stopped short, however, of suggesting a constitutional amendment banning gay adoptions.

"If the judge thinks the policy merits are wrong, she should run for the Legislature and file a bill," Stemberger said. "What the judge did here is precisely why the people in Florida rose up to define marriage in their constitution. The role of a judge is one of intelligent interpretation of the law, not as a social change agent."

Tallahassee bureau chief Steve Bousquet contributed to this report, which includes information from the Associated Press.

Judge rules gays are able to adopt 11/25/08 [Last modified: Friday, November 28, 2008 7:29pm]

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