Florida Appeals Court Invalidates Gay Adoption Ban; Crist Announced No Appeal

A unanimous three-judge panel of the Florida 3^rd District Court of Appeal ruled on September 22 that Florida’s statute providing that a person who is "a homosexual" may not adopt a child is unconstitutional. Ruling on the state’s appeal of a decision by Miami-Dade County Circuit Judge Cindy S. Lederman granting Martin Gill’s petition to adopt his two foster children, the court found that there was no rational basis for the state to categorically exclude gay people from being adoptive parents. Governor Charles Crist promptly announced that the state would stop enforcing the ban and would not appeal the ruling to the Florida Supreme Court.  Florida Department of Children and Families v.s In re: Matter of Adoption of X.X.G. and N.R.G., No. 3D08-3044.

The ban was enacted in 1977, as a legislative reaction to singer Anita Bryant’s referendum campaign to repeal a gay rights ordinance that had been adopted by the City of Miami. Bryant had based her campaign on a claim that gay people were dangerous to children, and that under the Miami ordinance gay people would have a right to be employed as public school teachers where they would have access to young children. A ban on adoptions by gay people then swept through the legislature, without any input from the state agency responsible for administering the adoption system.

Although both the Florida Supreme Court and the U.S. Court of Appeals for the 11^th Circuit, based in Atlanta, have rejected federal constitutional challenges to the adoption ban in the past, there had never been a direct appellate ruling on whether the ban violated Section 2 (Basic Rights) of the Florida Constitution, which incorporates an equal protection requirement. In its 1995 ruling upholding the ban, the Florida Supreme Court had found that the record in that case contained insufficient evidence to rule on the equal protection point, leaving it an open question.

Although adoptions by gay people were forbidden with the passage of the statute, there was no prohibition on gay people acting as foster parents or legal guardians of children, and gay people who were biological parents were not deprived of custody. The result was a growing body of evidence over time, as more and more gay people were raising children in these other capacities, that in fact gay people were perfectly capable of being good parents and providing good homes for children. The professional staff at the state’s Department of Children and Families came to the view that only the statutory ban stood in the way of granting an adoption for an otherwise qualified gay applicant.

In this case, Martin Gill and his partner had taken in two youngsters as foster parents at the request of the Department, after they were removed from their birth parents due to neglect and abuse. Gill, his partner, and their son took these children into their home and hearts and nurtured them back to physical and psychological health. When the state moved to terminate the parental rights of the biological parents, Gill petitioned to adopt. A positive home study concluded that although adoption by Gill would be in the best interest of the children, he could not adopt because of the statutory ban. Gill then brought his adoption petition to the Miami-Dade Circuit Court, challenging the ban with the assistance of a team of volunteer attorneys from the ACLU and other organizations.

Circuit Judge Cindy Lederman held an extended trial with numerous fact and expert witnesses, compiling a voluminous record supporting her conclusion that there was no rational basis for a categorical ban, and that Gill was well qualified to adopt the children. The appeals court concurred completely with her conclusions.

Writing for the court, Judge Gerald B. Cope, Jr., observed, "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. 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. . . Thus in this case no one attempts to justify the prohibition on homosexual adoption on any theory that homosexual persons are unfit to be parents."

The state’s only real substantive argument – an argument that had been accepted as intuitively obvious if unprovable by the U.S. 11^th Circuit Court of Appeals -- was that children adopted by gay people or same-sex couples would be deprived of having adult role models from both sexes, which the state argued was preferable for the child’s healthy psychological development.

If this were indeed the state’s goal in banning gays from adopting, the court pointed out, it made no sense because more than a third of adoptions approved by Florida courts involve single parents, not different-sex couples, so all those children will also lack parental role models of both sexes. Furthermore, the ban made no sense as part of a system that allows gay people to be foster parents, frequently in long-term placements, or even legal guardians, a long-term setting in which state oversight ceases as it does in adoptions.

"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 adoption by those same persons," wrote Judge Cope. "The Department contends, however, that the basis for this distinction can be found in the social science evidence." Unfortunately for the state, the social science evidence, presented to the circuit court by numerous experts, all pointed in the opposite direction, in favor of letting gay people raise children. The only contrary expert testimony presented by the state was found to be flawed and unpersuasive by Judge Lederman, and the appeals court ruled that she "was entitled to reach the conclusion, which she did, that the Department’s experts’ opinions were not valid from a scientific point of view."

The Department also trotted out various stereotypes about gay couples (instability, prone to domestic violence) that were effectively shot down by Gill’s experts, and – in a move that has to be embarrassing for the state - the court pointed out that the state had selectively quoted from and misrepresented the testimony of Gill’s expert witnesses in its arguments to the court of appeal.

Having concluded that there is no rational basis for the statute, the court affirmed Judge Lederman’s decision to grant Martin Gill’s adoption petition and to find the statute unconstitutional.

In a concurring opinion, Judge Vance E. Salter emphasized the important role of Gill’s partner and their son in the lives of the two foster children, referring to them as a family, pointing out that the case involves "five persons and associated relationships, not just the adoptive parent and the two children.. . .The continued use of the legal system to attempt to unwind these relationships is simply inexplicable," he commented.

Judge Salter also pointedly noted that the professionals at the Department of Children and Families were opposed to the ban, and two of them had testified at trial in support of Gill’s adoption petition. "The categorical ban was enacted in haste and reaction in 1977," he wrote, but the statute was also subsequently amended to add a requirement that the "best interest of the child" be "of foremost concern" in the court’s determination of adoption petitions. "By the time of the trial below, the application of the statutory ban was contrary to both the professional judgment of the Department and the legislative directive to assure ‘the best interest of the child’ in ‘every’ adoption. Confronted with two irreconcilable provisions, the trial court properly followed the later and ‘foremost’ directive."

While noting that the court was not called upon to consider "the larger controversy regarding same-sex marriage," Judge Salter also made note of the recent ruling in Perry v. Schwarzenegger by the federal district court in San Francisco, observing that "many of the same equal protection arguments, and two of the expert witnesses who testified in the adoption case here, were cited in the court’s order."

Under Florida procedure, the state has a right to appeal to the state supreme court any court of appeal ruling holding a statute to be unconstitutional. But, as noted above, Governor Crist, currently an independent candidate for the U.S. Senate, recently changed his position on gay adoption, now arguing that adoption petitions by gay people should be decided on a case-by-case basis rather than under a categorical exclusion. Consequently, it is not surprising that he quickly announced that the state would not appeal this ruling.