Florida ban on gay adoption unconstitutional, court rules

Florida's ban on gay adoptions, perhaps the toughest in the country, violates the state constitution, a court ruled Thursday. The state has not yet decided whether it will appeal.

By , Staff writer

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    Martin Gill plays with his two boys inside Breeze Swept Tot Lot in North Miami, Fla., Wednesday. Gill is at the center of a legal challenge against Florida's ban on gay adoptions. A court ruled Thursday that the ban is unconstitutional.
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Lawyers for the state of Florida are considering whether to ask the Florida Supreme Court to review a decision by a Miami-based appeals court striking down a 33-year ban on adoption by gay couples.

Gov. Charlie Crist (I) said the state would not enforce the ban pending a decision on whether to appeal the 28-page ruling handed down on Wednesday. He said he was pleased by the ruling.

The three-judge panel of the Third District Court of Appeal ruled that Florida’s ban on gay adoption violates the equal protection clause of the Florida Constitution.

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The decision upholds an earlier ruling by a state trial judge that state officials have no rational basis to deny a fit foster parent who happens to be gay the right to adopt the two boys he’s cared for since 2004.

Florida law permits homosexuals to serve as foster parents and to serve as legal guardians. But a section of the law prohibits homosexuals from adopting a child.

“The legislature is allowed to make classifications when it enacts statutes,” the appeals court said. “The classifications must, however, be based on a real difference which is reasonably related to the subject and purpose of the regulation.”

The court concluded: “It is difficult to see any rational basis in utilizing persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on adoption by those same persons.”

An eventful week

The decision comes on the heels of a failed effort this week in the US Senate to repeal the military’s “don’t ask, don’t tell” policy, which bans openly gay men and women from serving. It also comes after recent rulings by federal judges in Boston and San Francisco supporting equal rights for gays and lesbians in the receipt of workplace benefits and in civil marriage laws.

Florida’s anti-gay adoption law was said by critics to be the most draconian in the country. State officials have 30 days to decide whether to appeal to the Supreme Court in Tallahassee.

At issue in the case was whether Martin Gill would be permitted to adopt the two boys he’s cared for as a foster parent since 2004. He had earlier served as a foster parent for seven other children.

When they arrived in Mr. Gill’s home, the two brothers were 4 years old and 4 months old. The state removed them from their mother on charges of neglect and abandonment.

According to the court, both boys have thrived in Gill’s home. When he applied to adopt the boys, a state review found that Gill was providing a safe, stable, and nurturing home that met the children’s physical, emotional, social, and educational needs.

Nonetheless, Gill’s application was denied solely because of his sexual orientation.

Florida's argument

During a four-day trial, Florida officials conceded that homosexuals and heterosexuals make equally good parents. But they argued that children would have better role models and face less discrimination if they were placed in non-homosexual households, preferably with a husband and wife as the parents.

The state also argued that gay and lesbian homes may be less stable and more prone to domestic violence, and that homosexual parents support adolescent sexual activity and experimentation.

The appeals court said the record did not support the state’s arguments.

Writing for the appeals court panel, Judge Gerald Cope said Florida’s adoption law calls for an individual, case-by-case evaluation to determine if the proposed adoption is in the best interest of the child.

This case-by-case review is authorized for individuals with a past history of abuse, neglect, or abandonment of a child; for persons with a criminal history; and for persons with a history of substance abuse, he said. In contrast, the only people automatically excluded from consideration as adoptive parents are gays and lesbians, Judge Cope wrote.

He noted: “In this case no one attempts to justify the prohibition on homosexual adoption on any theory that homosexual persons are unfit to be parents.”

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