Appeals court affirms unconstitutionality of strict Florida ban on gay adoptions

Court affirms overturning Fla. gay adoption ban

MIAMI — Florida will immediately stop enforcing its ban on adoptions by gay people following a decision by a state appeals court that the three-decade-old law is unconstitutional, Gov. Charlie Crist said Wednesday.

Crist announced the decision after the 3rd District Court of Appeal 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.

“I’m very pleased with the ruling on behalf of the Gills,” Crist told reporters in Tallahassee. “It’s a great day for children. Children deserve a loving home.”

The appeals court decision is not the final word on the law. Gill and the American Civil Liberties Union, which represented him and his partner, want the state to take the case to the Florida Supreme Court to obtain a final statewide determination on the law.

“If that continues to be their desire, we would support that, and I think given the makeup of the current Supreme Court they would have a very good chance to get a very good ruling,” said Crist, a former Republican running for the U.S. Senate as an independent.

Earlier this month, Crist’s campaign issued a position paper supporting several gay rights issues he’d once opposed, including adoption rights.

The prohibition was first enacted in 1977 and is the only law of its kind in the nation, according to court records. Arkansas and Utah ban any unmarried straight or gay couples from adopting or fostering children. Mississippi bans gay couples, but not single gays, from adopting.

“Clearly, Florida’s law was the most draconian in the nation until today,” said Robert Rosenwald, the lead counsel on the case for the Florida ACLU.

In a 28-page opinion, a three-judge panel of the court noted that gay people are permitted to become foster parents or legal guardians in Florida, yet are the only group not allowed to adopt.

“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 those same persons,” wrote Judge Gerald Cope for the panel. “All other persons are eligible to be considered case-by-case to be adoptive parents.”

The ruling came in an appeal of the 2008 decision by the state Department of Children and Families, which had urged the judges to consider evidence of what it said were risk factors among potential gay parents. These factors, according to attorneys for the department, included more sexual activity by children of gay parents and more incidents of teasing and bullying suffered by children from gay households.

The appeals panel said the state’s evidence did not back up those claims and that its “experts’ opinions were not valid from a scientific point of view.” DCF also now agrees, according to Wednesday’s ruling, “that gay people and heterosexuals make equally good parents.”

“We’re thrilled for the Gill family and we’re thrilled for what this means for the advancment for human rights in the state of Florida,” said Howard Simon, executive director of the ACLU of Florida, which represented the Gill family.

Gill said he’ll take the case as far as he can if the state appeals. The yearlong wait for the decision has been agony, with him worrying “week after week that my kids might be taken away.”

He’s tried to shield the boys, now 6 and 10, by not discussing that ramifications of the case with them and putting blocks on their TV at home. If the state doesn’t appeal, Gill said he can’t wait to tell them he and his partner are their “forever parents” and they can finally share the same last name. It’s been disappointing for the boys to enroll in school with different last names, he said.

“I’m actually going to get their birth certificates with me listed as their father. That will be a thrilling thing for me,” Gill told The Associated Press in a telephone call. “I think the birth certificates are going to have a prominent place in our house. That will be the written proof of all of this struggle.”

Matthew Staver, an attorney with Virginia-based Liberty Counsel which supports the ban, said adoption is a privilege, not a right under Florida law. The agency filed a friend-of-the-court brief supporting that position.

“Common sense and human history underscore the fact that children need a mother and a father,” Staver said in a statement. “Gender does matter to the well-being of children. Moms and dads are not optional non-essential in the lives of children.”

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Associated Press writer Bill Kaczor in Tallahassee contributed to this story.