Appeals court: Florida ban on gay adoption unconstitutional

By Andy Eddins
Sep 22, 2010 at 02:30 pm

Posted by Carol Marbin Miller on miamiherald.com:

"Florida Gov. Charlie Crist announced Wednesday afternoon he will cease enforcing the state's 33-year-old gay adoption law, which was declared unconstitutional by a Miami appeals court Wednesday morning.

"Crist lauded the court ruling as 'great' and told reporters at a 2:30 news conference he would immediately stop enforcing the ban. Crist said he wanted to confer with the adoptive father at the center of the case before deciding whether to appeal. He said, however, that he believes the state Supreme Court wouldn't overturn the court rulings.

"Crist once supported the ban. But the U.S. Senate candidate reversed himself after he left the Republican Party and began courting the liberal vote.

"A Miami appeals court ruled Wednesday that Florida's ban on gays adopting is unconstitutional and affirmed the controversial adoption of two foster children by a gay North Miami couple.

"The unanimous 3-0 decision deals a critical blow to Florida's 33-year-old law banning adoption by gay men and lesbians, and most likely sends the case to Florida's highest court for resolution.

"'Given a total ban on adoption by homosexual persons, one might expect that this reflected a legislative judgment that homosexual persons are, as a group, unfit to be parents,' the opinion states. 'No one in this case has made, or even hinted at, any such argument.'

"To the contrary, the parties agree 'that gay people and heterosexuals make equally good parents.'

"The decision, by the Third District Court of Appeal in Miami, means Frank Martin Gill will be allowed to remain the parent of his two sons -- identified only as X.X.G. and N.R.G. -- whom Gill and his longtime partner adopted from the state's foster care system in 2009. Gill had been foster-parenting the boys for several years.

"The opinion was agreed upon by the three judges who reviewed the case, Gerald B. Cope Jr., Frank A. Shepherd and Vance E. Salter, who wrote a concurring opinion. The 35-page ruling was written by Cope, who also reviewed a similar case this summer involving a lesbian Broward couple.

"'Finally, a piece of 30-year-old prejudice has been struck from the law books in Florida,' said Howard Simon, who heads the American Civil Liberties Union in Florida and represented Gill. 'This is good news for the advancement of human rights and the children in Florida's troubled foster-care system.'

"Wednesday's ruling likely will not be the end of the controversial debate.

"Legal scholars have assumed from the beginning that the case was destined to be decided by the Florida Supreme Court. Indeed, Gill's lawyers sought to have the case appealed directly to the state's highest court, but Attorney General Bill McCollum objected, insisting it first be decided by the Miami appeals court.

"Monroe Circuit Judge David J. Audlin -- who sits in Key West, with its large population of gay men and lesbians -- was the first judge in recent years to strike down the controversial statute.

"On Aug. 29, 2008, Audlin signed a 67-page order declaring the adoption law unconstitutional. Audlin's order allowed Wayne LaRue Smith, an openly gay lawyer in Key West, to adopt 'John Doe,' whom he had raised since the Department of Children & Families placed the child in his home in 2001. In 2006, Audlin had appointed Smith and his parter as guardians for the boy.

"Neither DCF nor McCollum chose to appeal Audlin's ruling, saying the adoptive child, having already become a ward of Smith's, no longer was in state custody -- thus depriving the two agencies of jurisdiction over the adoption.

"A month later, Miami-Dade Circuit Judge Cindy Lederman began another hearing when Gill filed a petition to adopt the two half-brothers he had been raising in foster care.

"Lederman's trial lasted one week. A transcript of the closed trial, obtained by The Miami Herald, read like an issue of a social science scholarly journal, with testimony from dueling psychologists, social workers and marriage and family experts.

"DCF presented testimony from two university professors -- one an ordained Baptist minister, the other a scholar who acknowledged he was guided largely by the Bible -- to bolster the agency's contention that gay men and lesbians are more likely to suffer from mental illness, substance abuse or engage in harmful lifestyle choices.

"Ultimately, Lederman dismissed the two experts' testimony, saying they ``failed to offer any reasonable, credible evidence to substantiate their beliefs or to justify the legislation.''

"'Based on the evidence presented from experts from all over this country and abroad,' Lederman wrote, 'it is clear that sexual orientation is not a predictor of a person's ability to parent. . . . The most important factor in ensuring a well-adjusted child is the quality of parenting.'

"The three-judge Miami panel heard oral arguments in the appeal on Aug. 26, 2009."

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