Challenge to Florida's gay-adoption ban

As lawyers for a North Miami man seeking to adopt his two foster kids squared off with the state in an appellate courtroom last week, an irony pervaded the hearing: Martin Gill is a terrific foster dad to the boys and should be allowed to keep them, the state admitted. He just can't adopt them because he's gay.

Gill, who was asked to foster the two brothers in 2004 after their mother's cocaine abuse led to persistent neglect, has presented perhaps the most serious challenge to date to Florida's 32-year-old law banning adoption by gay people. The case now is before the Third District Court of Appeal in Miami, which heard arguments in the case last week.

One member of the three-judge panel suggested the state Department of Children & Families might have been defending a state law the agency didn't really like.

``Aren't there two messages you are sending?'' Judge Vance E. Salter asked a lawyer representing DCF at the oral arguments. ``Child welfare officials, all up the chain, all seem to be saying it is in the best interests of the children to be adopted.''

And, Salter added, administrators seem to be saying they ``wish the restriction wasn't there.''

In 2006, Salter said, when the two boys first became eligible for adoption, foster care workers never took steps to remove the boys from Gill or to find another home in which the parents could adopt. ``Isn't that administrative action really committing the state to a position?'' Salter asked Timothy D. Osterhaus, a deputy solicitor general.

``I don't think so,'' Osterhaus replied.

Shot back Salter: ``In 2006, everything was known . . . and yet the state allows the placement to continue [and] takes the children off the adoption exchange. . . . I don't see what the state did to go forward with its rights.''

DCF Secretary George Sheldon -- who voted against the gay adoption ban when he was a state lawmaker in 1977 -- declined to discuss the case in great detail last week. Echoing the public statements of his top lieutenants in recent months, Sheldon said the law was in the books, and he had to enforce it.

``The Legislature has made a policy decision on the issue, and it is my obligation to defend the statute,'' Sheldon said.

Sheldon said it did not matter how he voted three decades ago. And, he added, ultimately, the dispute will likely be settled by the state's highest court.

``There are a lot of things I voted against -- and for -- 32 years ago,'' Sheldon said. ``My role is not a legislative role now. I'm part of the executive branch. The legislative branch makes laws, and the executive branch carries the laws out. The judicial branch has the responsibility to determine whether there is a basis for them.

``In due course, it will probably wind up before the Supreme Court, and the Supreme Court will revisit the issue.''

What the state's highest court will encounter is a vastly different landscape from the one that spawned the adoption law in 1977, or the one it saw in April 1995, when it last reviewed -- and upheld -- the adoption law.

In the 1960s, same-sex relationships were illegal in Florida. In 1967, for example, a Miami appeals court upheld a municipal ordinance that forbade gay people from working -- or even being served -- at bars or restaurants that served alcohol.

The law, the appeals court wrote, was rational in that it served ``to prevent the congregation at liquor establishments of persons likely to prey upon the public by attempting to recruit other persons for acts which have been declared illegal.''

The state's highest court, in 1971, struck down the law making same-sex relationships a felony; the law had declared them an ``abominable and detestable crime against nature.'' The Supreme Court did, however, let stand a statute that allowed gay people to be prosecuted for ``unnatural and lascivious'' conduct, a misdemeanor.

In the Gill appeal, more than 30 child welfare advocacy or legal groups signed ``friend of the court'' briefs supporting the prospective adoptive father, including the Child Welfare League of America, the National Association of Social Workers, the Florida Chapter of the American Academy of Pediatrics and the Family Law Section of the Florida Bar.

About a half-dozen groups sided with the state, including the Liberty Counsel and the Christian Coalition of Florida.

John Stemberger, president of the Florida Family Policy Council, who attended the arguments and spoke outside the courtroom later, did not question whether Gill had been a fine caretaker for the two boys. Rather, he said research showed it was ``always'' better for children to be raised in a family with both a mother and father.

The ``vast majority'' of children in foster care, Stemberger said, can be adopted into traditional families, regardless of their age, ethnicity or disability. ``If we put these two children up for adoption, I can find 10 families for them, no question,'' Stemberger said.

``We should focus on what is best for kids, not on what we can get by with,'' he said.

Gill has maintained he never set out to strike down the law, but was forced to take action after the foster children had remained with him for several years -- forging a new family. To remove the boys now, he said, would be devastating. And to force them to stay in a legal limbo would deprive them of the rights all other children enjoy, including inheritance.

In an unusual twist, DCF has essentially agreed with Gill.

In court papers submitted at the children's adoption trial last fall, the state agency submitted ``stipulations'' -- essentially a series of facts the agency would not dispute -- to the judge. In court papers, the boys are identified only as John and James -- which are not their real names.

They included:

• Since the two boys were taken to Gill's home in December 2004, child welfare administrators ``have deemed this placement to be in John and James' best interests.''

• Gill and his longtime partner ``are providing a safe, healthy, stable and nurturing home for John and James and meeting their physical, emotional, social and educational needs.''

• John and James ``are bonded'' with their new family. Bonding, or attachment, is important for foster children, many of whom have difficulty forging relationships with new families after ping-ponging from home to home.

• ``But for [Florida's adoption law] DCF would have approved [Gill's] application to adopt John and James.''

• In a department review, a foster care caseworker wrote: Gill and his partner ``have been model foster parents throughout the duration of the dependency case involving this child. There should be more foster parents of this quality and caliber.''

Florida is the only state that excludes all gay men and lesbians from adopting, though it allows gay people to be foster parents.

Last year, voters in Arkansas passed a measure forbidding adoption by single people after a court there dismissed a state rule excluding gay people from fostering children. And in Utah, a state law prohibits cohabiting adults from adopting, though not single people.

Adam Pertman, who heads the not-for-profit Evan B. Donaldson Adoption Institute, a New York-based research and education program, said there is no evidence so far that shows children have been harmed by being raised in a family headed by gay men or lesbians, and most states do not hesitate to allow gay people to adopt.

``In the overwhelming number of states, it happens every single day that a professional on the ground will think that it serves the best interests of kids to be adopted by a gay man or lesbian -- and there is no harm whatsoever,'' Pertman said.

``Why would they do this if they thought it was bad for kids?,'' he added.