Florida’s gay adoption ban

Posted on: June 23rd, 2010

The Sunshine State ranks in the bottom half of the country on various critical indexes, such as education spending (36th nationally), uninsured children (49th as of a year ago) and juvenile incarceration rates (48th, meaning we jail more juveniles than 47 other states).

But there’s one stat where Florida is number one: We’re the only state in the U.S. that explicitly bans gays and lesbians from adopting children.That dubious distinction could soon change, however.  In November of 2008, Miami-Dade Circuit Judge Cindy Lederman said the ban violated the state’s equal protection guarantees by singling out gay parents (who can be foster parents but are barred from permanently adopting).  She ruled in the case for Martin Gill, the North Miami flight attendant who has become the trailblazer in the fight against the law, which was passed by the FL legislature in 1977 after a campaign by anti-gay crusader and  OJ queen Anita Bryant. Lederman’s ruling concluded that there was consensus among researchers that there is no reason to prohibit adoptions by gays and lesbians.

Gill talks about his long legal struggle Friday June 18 at an LGBT Family Town Hall at the King of Peace MCC from 7-8:30 p.m., along with his lawyer, the ACLU’s Shelbi Day, and Equality Florida Executive Director Nadine Smith. A workshop Saturday June 19 at King of Peace will train volunteers interested in working toward a repeal of the adoption ban.

Upon learning of the legal challenge to the ban in 2007, Florida Department of Children and Families Secretary Bob Butterworth enlisted Attorney General Bill McCollum to represent the agency in fighting the challenge.  After losing the case in ’08, Butterworth’s successor at DCF, George Shelton, asked for McCollum and his office to appeal.

McCollum has spent a total of $383,000 in Florida taxpayers’ money in pursuing the case.  He spent almost a third of that amount – $120,000 – on one of the two “expert” witnesses his office was able to procure to defend the statute, anti-gay activist George Rekers.  That’s despite the fact that three years prior to his being hired, a judge in Arkansas had panned Rekers’ testimony in another gay adoption case.  Pulaski County Circuit Court Judge Timothy Fox called Rekers’ testimony “extremely suspect,” and said that Rekers “was there primarily to promote his own personal ideology.”

Rekers is the co-founder of the Family Research Council and was the former scientific advisor of NARTH, the National Association for Research & Therapy of Homosexuality, an organization that offers conversion therapy to change homosexuals into heterosexuals. (Rekers left that group after Miami New Times famously caught him returning from a European vacation with a male “travel assistant” he’d hired from an escort site.)

Rekers’ testimony in the four days of the November 2008 trial was neither “credible nor worthy of forming the basis for public policy,” in the words of Judge Lederman.

In fact, the only other witness that McCollum’s office produced for the trial, Kansas State University Professor Walter Schumm, actually argued against the ban at one point, testifying that a categorical ban on gays adopting children, as maintained in Florida, was not warranted by the facts, and that adoption decisions should be made on a case-by-case basis.

But there was little blowback for McCollum or the state AG’s office after Judge Lederman ruled the gay ban unconstitutional, as he announced immediately that the state would appeal. The Florida ACLU attorneys presented experts who stated that separating Gill from his two sons (named “John” and “James” to maintain their anonymity) would be deleterious to those children. Dr. David Brodzinski, a child clinical psychologist who visited John and James in May of 2008, said in court that it would be “devastating “ for the boys if they were separated from Gill and his partner. “For [James], it’s the only home he’s ever known,” he testified. “Not only are these his parents in every sense of the word – appropriate to his age, of course – he’s very emotionally bonded, connected, attached to them.” When asked whether the parents’ being gay was of any relevance, Brodzinski replied that it played no role whatsoever.

“The real issue here, in any family, is the quality of parenting that is offered.”

Last August, the case went back to a three-judge panel at the Third District Court of Appeals in Miami.  Joining the ACLU were seven other groups that provided amicus briefs supporting Martin Gill’s case, including the Child Welfare League of America, the American Psychology Association, the Florida Academy of Pediatrics, as well as the UF and FSU law schools.

Not only do many experts say lifting the ban on gay adoptions would be the right thing to do for the approximately 850 children (according to DCF) looking for families right now in Florida (with more than 25,000 in foster care), one Florida professor wrote in a thesis in 2004 that repealing the ban would save the state money – over $3 million annually in foster care expenses.

In a cost/benefit analysis, University of Central Florida assistant professor Christopher Blackwell reported that, even though the administration of additional adoptions would cost the Department of Children and Families $1,834,000 over a 5-year period, assuming 100 children per year would be adopted by gays, the change would overall benefit DCF and the state of Florida by $4,959,500.
Gill, 47, has become the somewhat reluctant face of the movement to change Florida’s law against gay adoptions. The legal odyssey that could end up going to the Florida Supreme Court began in December of 2004, when Gill and his partner of five years became foster parents to the two brothers. John was 4 years old, James 4 months old at the time; both had been severely neglected.  In July of 2006, state courts terminated Gill and his partner’s status as parents because they were gay.  Gill sued, the ACLU learned of his suit and agreed to defend him, and the rest has been well, a whole lot of litigation. (The boys are now 10 and 5 years old, respectively. Gill’s partner, a Largo native, has never publicly given his name.)

Gill laughs when asked about the long, strange trip the legal process has been, joking that he only has to fight the case until the boys turn 18, which in the case of John means he’s almost halfway there.

“I never considered myself a gay activist or an advocate for gay people who want to adopt,” he says. But he does see himself as an advocate for foster parents. He had taken care of seven different children before DCF officials came to him shortly before Christmas in ’04 to ask him and his partner to take John and James for the holidays – a “short-term assignment” that ultimately became the basis for challenging the 1977 law.

Gill says that he’s fighting for the best interests of his two children, and the hundreds of other kids looking for a home in Florida. “Anything that excludes a portion of the population for somebody’s outdated beliefs is discrimination.” But he says that his paramount reason for opposing the law is the harm it does to kids, and not necessarily the harm that may come to gays who miss out on being parents.

If the DCA rules for Gill, and the case does not go to the state Supreme Court,  the question has been raised whether removal of the ban is only applicable to Gill and those in Miami/Dade County.  If so, the ban would not be removed statewide.

Shelbi Day, Gill’s attorney with the ACLU, says, “Of course we would like to have a Florida Supreme Court case overturning the adoption ban, but even if the case stops at the 3rd DCA it will have applicability well beyond South Florida.  Lower courts are bound by district court opinions, whereas here, there are no conflicting district court opinions.”

The law could also be changed in the Legislature, but only if there’s a sudden sea change among current members in Tallahassee.

This past spring, for the fourth straight year, South Florida Democratic Senator Nan Rich introduced legislation trying to reverse the ban.  In an indication of how intransigent the Republican-led legislature has been on the subject, Rich was only able to have a debate in a Senate committee on her amendment by attaching it to a bill which would bar adoption agencies from discriminating against people who own guns.
In fact, since the law was passed in 1977, it has never been debated on the entire Senate floor. “It’s about time we did something about that,” Rich said in March, but the amendment never made it out of committee.
The ban on gay adoption has become an issue in the Attorney General’s race. Both Democrats in the race, South Florida state Senators Dan Gelber and Dave Aronberg, say they are against the ban and would not appeal it to the Florida Supreme Court if the case ends up in their laps after the election.

Two of the Republicans in the race, Lieutenant Governor Jeff Kottkamp and former Agency for Health Care Administration head Holly Benson, say they believe in the law and would fight to maintain the ban.
Former Hillsborough County Assistant Prosecutor Pam Bondi has been less clear on where she stands.  At a recent Tiger Bay event in St. Petersburg, Bondi refused to answer the question directly about her stance, saying blandly that as attorney general she would support whatever law is on the books now or in the future.

And now Governor Charlie Crist, who was seemingly indifferent to the ban for the first three and a half years in office, has had a conversion as he runs as an independent, saying in Sarasota last week that he believes a “better way and approach would be to let judges make that decision on a case-by-case basis.”

Nadine Smith of Equality Florida says she’s heard that some of the supporters of the constitutional amendment banning same-sex marriage in Florida that passed in 2008 will push for a similar amendment if the courts overturn the ban.

But John Stemberger, a leading Christian conservative who supported the same-sex marriage ban, says simply,“We are confident that the appellate courts will uphold the current law and will not engage in a raw act of judicial activism by overturning the long standing ban upon prohibiting homosexuals from adopting children.” And if the courts overturn the ban? “We will work diligently and use any legal methods at our disposal to uphold this law and hold any judges accountable who would seek to usurp their limited role and try to become a social change agent.”

For Martin Gill, who is making three different appearances on behalf of the ACLU this weekend in the Tampa Bay area, “it would be nice to have an end to this.” But he says he will continue to fight the law if he has to. “My kids are in tennis camp today and have swimming lessons later,” he laughed on the phone from Miami last week. “I guess I’m a soccer dad.”

If the law is overturned in his favor, the chances are greater that some of the more than 700 children looking for loving parents in Florida might have a better chance of participating in such activities as well – unless the state appeals the case to the Supreme Court – in which case Florida will continue to stand apart from the rest of the nation.