Appeals court affirms unconstitutionality of strict Florida ban on gay adoptions

Florida's strict ban on adoption by gay people is unconstitutional because no other group, even people with criminal backgrounds, are singled out for a flat prohibition by state law, an appeals court ruled Wednesday.

The ruling by the 3rd District Court of Appeal upholds a 2008 decision by a Miami-Dade County judge who found "no rational basis" for the ban when she approved the adoption of two young brothers by Martin Gill and his male partner. The prohibition was first enacted in 1977 and is the only law of its kind in the nation, according to court records.

In a 28-page opinion, a three-judge panel of the court noted that gay people are permitted to become foster parents or legal guardians in Florida, yet are the only group not allowed to adopt.

"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 those same persons," wrote Judge Gerald Cope for the panel. "All other persons are eligible to be considered case-by-case to be adoptive parents."

The decision is likely to be appealed to the Florida Supreme Court, which could then determine the ultimate fate of the law. "We note that our ruling is unlikely to be the last word," the appeals panel said.

The ruling came in an appeal of the 2008 decision by the state Department of Children & Families, which had urged the judges to consider evidence of what it said were risk factors among potential gay parents. These factors, according to attorneys for the department, included more sexual activity by children of gay parents and more incidents of teasing and bullying suffered by children from gay households.

The appeals panel said the state's evidence did not back up those claims and that its "experts' opinions were not valid from a scientific point of view." DCF also now agrees, according to Wednesday's ruling, "that gay people and heterosexuals make equally good parents."

According to DCF, at any given time in Florida there are as many as 1,000 children in need of adoption, and it often takes over 30 months for adoptions to be finalized.

"We're thrilled for the Gill family and we're thrilled for what this means for the advancment for human rights in the state of Florida," said Howard Simon, executive director of the American Civil Liberties Union of Florida, which represented the Gill family. "What this also shows is how easy it is to pass bad legislation and how many years and decades it takes to remove bad legislation from the books."

A DCF spokesman did not immediately return a telephone call seeking comment.

Gill said he'll take the case as far as he can if the state appeals. The yearlong wait for the decision has been agony, with him worrying "week after week that my kids might be taken away."

He's tried to shield the boys, now six and 10, by not discussing that ramifications of the case with them and putting blocks on their TV at home. If the state doesn't appeal, Gill said he can't wait to tell them he and his partner are their "forever parents" and they can finally share the same last name. It's been disappointing for the boys to enroll in school with different last names, he said.

"I'm actually going to get their birth certificates with me listed as their father. That will be a thrilling thing for me." Gill told The Associated Press in a telephone call. "I think the birth certificates are going to have a prominent place in our house. That will be the written proof of all of this struggle."