Florida Court Overturns Adoption Ban

Gerald B. Cope, Jr.

Gerald B. Cope, Jr.

A Florida appeals court ruled September 22 that a gay man, Frank Martin Gill, has the right to adopt the two boys he and his partner have raised for almost six years. The decision upholds a lower court ruling that found the state law banning gay men and lesbians from adopting is unconstitutional.

“This is a giant step toward being able to give our sons the stability and permanency that they are being denied,” said Gill Wednesday, according to an ACLU press release.

In November 2008, Miami-Dade Circuit Judge Cindy Lederman ruled in In re: Matter of Adoption of X.X.G. and N.R.G. that the state’s adoption ban violated the rights of Gill and the children to equal protection under the state Constitution. The government, she said, failed to demonstrate a rational reason for imposing the ban, and the law obstructed the right of children to a permanent, stable home as provided by federal and state law.

The state Department of Children and Families (DCF) appealed the ruling to the state’s Third District Court of Appeals, which heard arguments in August 2009. A three-judge panel of the court unanimously upheld Lederman’s ruling, saying there is no rational basis for the adoption ban.

Florida is the only state that prohibits any gay men or lesbians from adopting.

Judge Gerald B. Cope Jr., writing the opinion for himself and Judges Frank A. Shepherd and Vance E. Salter, noted that DCF has placed children with gay men and lesbians who act as foster parents or permanent guardians. There was no rational basis to impose “a blanket prohibition on adoption by those same persons,” said Cope, while placing children with gay and lesbian parents.

Cope noted that DCF agreed “that gay people and heterosexuals make equally good parents.”

DCF had argued that “children will have better role models, and face less discrimination” in “non-homosexual households, preferably with a husband and wife as the parents.” The argument does not stand up, Cope said, because state law does not restrict adoption to married heterosexual couples. In fact, one third of adoptions in the state are by single parents.

The Gill case decision runs counter to one made in the federal 11th Circuit Court of Appeals in the 2004. In that case, Lofton v. Secretary of the Department of Children and Families, the court ruled that Florida could use the “married heterosexual parents are best” argument to ban gays from adopting while simultaneously allowing single heterosexual parents to adopt. The court in that case noted that a single heterosexual parent might one day marry.

The difference this time, noted Nancy Polikoff, Professor of Law at American University, is that there was a full trial with direct and cross examination of witnesses.

“Basically what this has come to,” said Polikoff, “is that no reputable social science expert can testify that gay men and lesbians should never be able to adopt children.”

The court heard testimony from a number of social science experts who showed there are no differences in children’s adjustment based on whether they have heterosexual or homosexual parents. The experts included Dr. Letitia Peplau, Professor of Psychology at UCLA, and Dr. Michael Lamb, Professor of Psychology at the University of Cambridge, who also testified for the plaintiffs in the federal trial challenging the constitutionality of Proposition 8, California’s ban on marriage for same-sex couples.

The Cope panel was highly critical of DCF’s two experts, Dr. Walter Schumm, associate professor of family studies at Kansas State University, and clinical psychologist Dr. George A. Rekers, Professor Emeritus at the University of South Carolina, who were brought in to argue that gay men and lesbians were not suitable to become parents. The appeals court upheld the lower court’s finding that “The Department’s experts’ opinions were not valid from a scientific point of view.”

Schumm had, in fact, seemed to argue for Gill when he said that “gay parents can be good foster parents,” and “the decision to permit homosexuals to adopt is best made by the judiciary on a case by case basis.”

Rekers was also later reported to be traveling with a gay male escort who claimed Rekers himself was gay. Rekers responded that he spends time with sinners in order to help them.

Despite the ban, Florida courts have ruled four times to allow an adoption by a gay or lesbian parent. The first was in August 2008, when a Monroe Circuit judge allowed Wayne LaRue Smith to adopt the boy he and his partner had been fostering since 2001. Because Smith had already been named the boy’s legal guardian, neither DCF nor the attorney general appealed.

The second adoption was granted to Gill through Lederman’s ruling in November 2008. The third was in January 2010, when a Miami-Dade circuit judge allowed Vanessa Alenier to adopt the one-year-old she and her partner have been fostering. The judge said the adoption ban was “unconstitutional on its face.” The state has appealed that decision, which is also pending in the Third District Court of Appeals.

And last month, a Broward County judge approved the adoption of a teenaged boy whom Robert Lamarche, a gay man, has been fostering for two years. The judge wrote that the adoption “is in the minor’s best interest” and that the state law banning adoption by gay men and lesbians is unconstitutional.

The question now is whether DCF will appeal the Gill case to the state Supreme Court. On September 14, Gov. Charlie Crist (I) stated that he was going to “review” any ruling before deciding whether to order the DCF to appeal. Crist, who now running for U.S. Senate, recently announced his support for a number of LGBT-related rights, including adoption.

And Howard Simon, executive director of the American Civil Liberties Union (ACLU) of Florida, which is representing Gill, has said he wants the case to continue because a state Supreme Court decision would be binding statewide.

George Sheldon, Secretary of the DCF, told reporters this week that even if there is a ruling at some point against an adoption by Gill, the state won’t remove the boys from his home.

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