Florida case seen as serious challenge to gay adoption ban

MIAMI — 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.''

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