Florida Court calls ban on gay adoptions unlawful

A 30-year-old Florida law that prohibits adoption by gay men and lesbians is unconstitutional, a state appeals court ruled on Wednesday, and the state's governor said the law would not be enforced pending a decision on whether to appeal.

The decision by Florida's Third District Court of Appeal said that Florida's adoption law, which bans adoption by gay men and lesbians while allowing them to be foster parents, had "no rational basis" and thus violated the equal protection clause in the State Constitution. Judge Gerald B. Cope Jr. wrote the opinion, which affirmed a 2008 decision from a lower court.

At a news conference on Wednesday afternoon, Gov. Charlie Crist applauded the decision, saying: "It's a very good day for Florida; it's a great day for children. Children deserve a loving home to be in."

Because the decision applies statewide, he said, "We are going to immediately stop enforcing the ban."

The state, however, has 30 days to appeal. The governor said that he had spoken with the secretary of Florida's Department of Children and Families, but did not say whether there would be an appeal.

A spokeswoman for Bill McCollum, the state attorney general, who has voiced support of the adoption ban, said his office was representing the department in the case, "and will be in discussions with our client as to whether or not they plan to appeal."

A spokesman for the department said, "The primary consideration on whether to appeal is finding the balance between the value of a final ruling from the Florida Supreme Court versus the impact on the Gill family."

Judge Cope wrote that "our ruling is unlikely to be the last word."

The case involved the efforts of Martin Gill, a gay man, to adopt two brothers he took in more than five years ago as foster children when one was 4 years old and the other 4 months old. They had ringworm at the time, and the younger child had an untreated ear infection. The older boy did not speak for the first month with Mr. Gill and his partner.

"When they came in the door, we were kind of shocked at what bad condition we were in," Mr. Gill said Wednesday in an interview. "We realized we had our work cut out for us."

He added, "I would say today they are two happy, healthy, normal kids."

In a concurring opinion, Judge Vance E. Salter wrote that the steps taken to heal and raise the boys "are nothing short of heroic."

Evidence presented at the trial by opponents of the ban found no difference in the well-being of children raised by gay parents versus heterosexual parents.

Judge Cope wrote that at the trial, the state presented only two expert witnesses, one of whom undercut the state's case by disagreeing with the idea of a blanket ban on gay adoption, stating instead that adoptions should be considered case by case. The other expert called by the state, Dr. George A. Rekers, was criticized by opposing experts as having provided research that was rife with "errors in scientific methodology and reporting" and that "did not meet established standards in the field."

The court did not comment on the fact that Dr. Rekers, who was paid $120,000 for his work in the case, has since been enmeshed in a scandal after he was discovered to have taken a 10-day trip to Europe with a young man who advertised sexual services on a site for gay escorts.

According to the lower court decision cited in the opinion on Wednesday, "Florida is the only remaining state to expressly ban all gay adoptions without exception."

Howard Simon, the executive director of the A.C.L.U. of Florida, which represented the Gill family, hailed the decision on Wednesday as a blow against discrimination that means all potential adoptive parents "will be judged on their individual fitness to provide a loving, stable, permanent adoptive home."

That means, he said, that "some gays will be disqualified, and some heterosexuals will be disqualified," but that "nobody is going to be categorically excluded because of who they are."

Conservative organizations attacked the decision. Mathew D. Staver, founder of Liberty Counsel and dean of the Liberty University School of Law, said in a statement, "Common sense and human history underscore the fact that children need a mother and a father."

Mr. Gill said that during the long trial process he had been careful to shield the boys from news that might make them fear further disruption in their lives, including threats about being removed from their home.

"I try to keep it all positive, and try to insulate them from the negative," Mr. Gill said. But, he added, "I'm certainly going to tell them we have a victory today."

(Published by NY Times - September 22, 2010)