College Times

Issue date: 11/27/08 Section: Real News

MIAMI - A Miami child welfare judge Tuesday declared Florida's 31-year-old ban on adoption by gay people unconstitutional, rejecting the state's claim that the law promotes public morality and the best interests of foster children who may be harmed by same-sex parents.

Miami-Dade Circuit Judge Cindy Lederman approved the adoption of two half-brothers, identified only as John and James Doe, by Frank Gill, a gay North Miami man who has raised the two foster children since they were brought to him in December 2004 by a state child abuse investigator. The boys now are 8 and 4 years old.

"John and James left a world of chronic neglect, emotional impoverishment and deprivation to enter a new world, foreign to them, that was nurturing, safe, structured and stimulating," Lederman wrote. "They are a family, a good family, in every way except the eyes of the law."

And though Gill and advocates for gay rights and foster children praised the ruling as a sensible way to find needed families for abused and neglected children, lawyers for the state immediately vowed to defend the prohibition against gay adoption, saying the law protects fragile foster children from an unhealthy lifestyle.

Shortly after Lederman released her ruling in court Tuesday morning, Assistant Attorney General Valerie J. Martin, who had defended the law during a weeklong trial Oct. 1-6, said the state had filed a notice of their intention to appeal to the Third District Court of Appeal in Miami.

"We respect the court's decision," Martin added.

Florida is the only state that excludes all gay men and lesbians from adopting - though it allows gay and lesbian foster parents. Last month, 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.

The fate of the controversial law is likely to be decided by the Florida Supreme Court, to which Gov. Charlie Crist is expected to appoint at least two new judges in coming months. Crist, a former attorney general who has expressed support for the adoption ban, declined to comment Tuesday, saying he hadn't yet reviewed the ruling.

While praising Gill and his longtime partner as "wonderful foster parents," Neil Skene, a spokesman for the Department of Children & Families, said the agency will continue to defend the state law in search of "finality" on state adoption policy.

"We are appealing because we don't want to litigate this issue every time there's another adoption petition," Skene said.

Gill, 47, flanked by his mother and a gaggle of attorneys, wept in court after Lederman released her ruling, which said the two boys "shall, from this day forth" assume new names to reflect their new parentage. The brothers' birth parents lost the right to raise them due to severe neglect, records show.

"Our family just got a lot more to be thankful for this Thanksgiving," Gill said.

The ban on adoption by gay families, Gill said, does not lead to more children being raised in traditional households, since foster and adoptive families have long been in short supply in Florida. Instead, he said, "It results in more children being left without any parents at all. They don't have a mom or a dad."

Currently, 3,535 Florida children are awaiting adoption after their parents' right to raise them was terminated.

Lederman, who oversees Miami's juvenile and child welfare courts, is the second judge this year to declare the state's ban on adoption by gay men and lesbians unconstitutional.

In August, Monroe County Circuit Judge David John Audlin Jr. permitted another gay man to adopt, declaring that the 1977 gay adoption ban arose out of "unveiled expressions of bigotry" when the state was experiencing a severe backlash to demands for civil rights by gay people in Miami.

Forbidding gay families to adopt "while assuring child abusers, terrorists, drug dealers, rapists and murderers at least" a chance to prove their cases in court, Audlin wrote, was so "disproportionately severe" that it violates the state and U.S. constitutions.

In Gill's case, Lederman wrote, his attorneys had to prove there was no "rational basis" for the state to discriminate against prospective adoptive parents who are gay - but also their foster children.

Foster children, the judge said, have a right to be raised in permanent families but are relegated to legal limbo if the foster parents who wish to raise them happen to be gay.

"A child in need of love, safety and stability does not first consider the sexual orientation of his parent," she wrote.

In a 53-page ruling that reads at times like a social science paper, Lederman dissected 30 years worth of psychological and sociological research, concluding that studies overwhelmingly have shown that gay people can parent every bit as effectively as straight people and do no harm to their children.

"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."

Lederman dismissed the testimony of the state's experts - one an ordained Baptist minister, the other a scholar who acknowledged he was guided largely by Scripture - saying they "failed to offer any reasonable, credible evidence to substantiate their beliefs or to justify the legislation."

Advocates for traditional families blasted the opinion Tuesday as an attempt at judicial lawmaking, and insisted the state law will stand.

"In the short term, this is a tempest in a teapot," said Mathew D. Staver, founder of the Orlando, Fla.-based Liberty Counsel. "In the long term, it will make no significant difference, because the courts will overturn this on appeal."

Said John Stemberger, president of the Florida Family Policy Council: "The judge is wrong, both on the law and on the social science."

"This is a classic example of why we amended our Constitution to prohibit homosexuals from marrying: Certain judges do not appreciate their limited and restrained role as an academic arbiter of the law. They want to be social change agents. If you don't like the law, become a legislator and change it," Stemberger said.

Robert R. Rosenwald Jr., one of Gill's attorneys with the ACLU, said the opinion was a victory for all adoptive parents, not just gay people.

"Today's decision means that every individual adoptive parent - whether gay or straight - can stand before the court and make the case for why he or she is the best person to adopt an individual child based on the unique abilities of the parent and the unique needs of each child," Rosenwald said.

"Judge Lederman made clear today that it violates every rule of decency and fairness to threaten to tear a 4-year-old boy from the only home he has ever known, and to send him to strangers who don"t even know him simply because his beloved papi is gay."

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