Miami Judge Rules Florida Ban on Gay Adoption Unconstitutional

November 26, 2008

A 1977 Florida state law that bans gay individuals from adopting has received its biggest challenge thus far: Foster father Frank Martin Gill won his suit to adopt two brothers he has been fostering since 2004.

In her decision this morning, Miami Dade Circuit Judge Cindy Lederman ruled that there was no "rational basis" to prevent the children from being adopted. The case, which marks the first time that a gay adoption case has been taken before a trial court in Florida, seems likely to go before the Florida Supreme Court, which could overturn the ban.

Although several states have de facto bans against gay couples adopting and an unknown number of conservative-leaning courts make it virtually impossible, Florida is the only state that prohibits gay individuals from adopting. But it allows them to be foster parents. That means that when Gill wanted to adopt the two boys he'd fostered for four years, ages 4 and 8, he couldn't, leaving the brothers as official wards of the state.

Several other challenges have been brought against the Florida law. In one successful case earlier this fall in Key West, a judge ruled that the ban was unconstitutional and arose from "unveiled expressions of bigotry." But that case's legal effects were limited.

The Gill case, however, could have wide-reaching consequences. This morning's decision has already been appealed by the state. If the appellate court upholds the ruling that the law is unconstitutional, which seems probable, then the case is likely to go up to Florida's Supreme Court. Even if the appellate court reverses the ruling, the Supreme Court still has the option to hear the case. And if the Supreme Court agrees to reverse the law, that would strike the ban down statewide—without having to go through the state legislature.

The case also marks the first time that a gay adoption suit has been brought before a trial court. Previous trials, in which a judge ruled without hearing social science evidence, simply operated on the assumption that the children of gay parents were disadvantaged, says Gill's attorney, the ACLU's Robert Rosenwald.

This time, it was different. Over the course of the four-day trial, experts called by both sides presented evidence about how children of gay parents fare. The state's defenders argued that gay people are more prone to a host of problems, ranging from alcohol and drug abuse to depression. Experts on the other side testified that while gays as a group do struggle more with particular issues, so do other demographic groups—but they're not banned from adoption, because adoption is meant to be decided on a case-by-case basis, rather than with group generalizations. Meanwhile, no credible scientific study has shown that the children of gay parents are at more of a disadvantage than the children of straight parents, they said.

"With that stage set, it's clear that this 30-year-old ban that was based strictly on politics and hate has to fall before the science, before the facts," says Rosenwald.

There's no knowing yet what the appellate court will do. But as it usually gives deference to the factual findings of the trial court, gay adoption supporters are feeling optimistic—both that the Gill family will find closure and that the Florida law will, after 31 years, be overturned.