Frank Martin Gill took in two young boys on a temporary basis five years ago. Now, the North Miami, Fla., foster father said he would be "absolutely devastated" if the state removed his two foster children.
"Children need permanency, and I feel strongly they need permanency with our family," Gill told a horde of reporters, lawyers and spectators Wednesday after his attorneys challenged the constitutionality of a 1977 state law banning adoptions by gay parents at a hearing before the 3rd District Court of Appeal.
Gill, who is openly gay, attended the hourlong appellate argument about the future of his foster sons. He applied to adopt them in 2006. Miami-Dade Judge Cindy Lederman ruled for Gill last November when she found the law irrational. Whoever loses the appeal before the 3rd DCA is expected to appeal to the Florida Supreme Court.
The state defended the gay adoption ban in general terms without attacking the suitability of Gill's parenting in arguments before a three-judge panel and a standing-room-only crowd of more than 150 people.
Citing the five-year foster relationship, Judge Vance Salter noted the state is espousing contradictory messages. The Department of Children and Families maintains having the half brothers, now 9 and 5, stay with Gill and his longtime partner would be best for the boys.
"The state doesn't contest that this is in the best interest of the children," Salter observed.
Deputy Solicitor General Timothy Osterhaus, who argued for DCF, said, "We do not."
But Osterhaus maintains gays as a group can be excluded based on higher rates of domestic violence, psychiatric disorders and breakups.
He argued the law is valid under a rational basis legal test, which Lederman rejected.
All of the problems cited by DCF are screened for in the adoption process, said Elliot Scherker, a Greenberg Traurig shareholder in Miami who represents the children, and American Civil Liberties Union attorney Leslie Cooper of New York. They noted the state makes daily determinations on fit parents.
"There's no reason for group bias," Scherker said.
Cooper disputed the state's statistical claims, saying there is no disparity in domestic violence between gay and heterosexual people. She also maintained the breakup rates for gay couples with children is "virtually identical" to heterosexual couples with children.
Scherker recited the list of state stipulations in the case: DCF agrees Gill would be a good parent. DCF agrees adoption by Gill would be in the best interest of the children. DCF allows gay parents to be legal guardians and foster parents.
"The father is a gay man. But that didn't concern the state when they placed [the children] in his care," he said.
Judge Gerald Cope Jr. said: "This is as far as I can tell the only absolute disqualification under the statute. How is that fair?"
He noted state law doesn't disqualify adoptive parents on the basis of criminal history, drug use or disabilities.
Judge Frank Shepherd asked if adoption exclusions would be permitted if any group exhibited higher rates of unacceptable traits.
Cooper responded those issues are screened out individuality and "group generalization makes no sense."
The state brought the boys, known in court papers as John and James Doe, to Gill in December 2004 when the boys were 4 years and 4 months old. Lederman concluded the older boy was the baby's primary caregiver when the state interceded and they clearly had been poorly taken care of.
"On that December evening, John and James left a world of chronic neglect, emotional impoverishment and deprivation to enter a new world, foreign to them, that was nurturing, safe, structured and stimulating," Lederman wrote in her Nov. 25 order declaring the state's gay adoption ban unconstitutional.
She found no rational, scientific or moral reason to uphold the ban.
"This court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption," the judge wrote. "There is no question the blanket exclusion of gay applicants defeats Florida's goal of providing dependent children a permanent family through adoption."
The state appealed Lederman's ruling, claiming expert studies show gay people face adverse conditions such as higher suicide rates and their children will face discrimination and higher rates of sexual activity.
A number of groups filed friend-of-the-court briefs on both sides of the issue. The family law section of the Florida Bar filed a brief opposing the ban. The Florida Supreme Court refused to block the brief when a challenge was filed.
Florida adopted its gay adoption ban in 1977 when former Miss America contestant Anita Bryant was railing against gay rights. Miami-Dade County passed and then voters repealed an ordinance banning discrimination on the basis of sexual orientation the same year.
The state has the nation's most restrictive ban on gay adoption. The Florida law has withstood several constitutional attacks at both the state and federal level. A number of other states allow single gay people to adopt children but not partners in a same-sex relationship.
A Monroe Circuit judge declared Florida's gay adoption ban unconstitutional last August, but the state did not appeal because DCF said it no longer had jurisdiction over the child.
The fight over gay adoption in Florida is set against a backdrop of expanding same-sex marriage and civil unions in other states. Florida had a law banning gay marriage when voters added the ban to the state constitution last November.
Orlando, Fla., attorney John Stemberger, who spearheaded the amendment, attended the arguments and acknowledged afterward that adoption by Gill would be best for the boys. But he contends the law is justified because children do better with a mother and a father.
"If you put these children up for adoption, I can find you 10 parents ready to adopt them like that," Stemberger told a hostile crowd outside the hearing room. No other parents came forward to adopt the boys before Gill applied.
During Stemberger's statements, a shouting match broke out among spectators. Someone hollered that Stemberger didn't care about what was best for the children.
Gill told the crowd that a lot of gay people make great parents, and he knows straight people who shouldn't raise children. He maintains parents should be evaluated on a case-by-case basis.
While awaiting a ruling, Gill said he's taking it day by day and trying to enjoy every day with his foster sons.
Osterhaus indicated DCF still wants the children to be adopted.
Following the hearing, ACLU co-counsel Robert Rosenwald of Miami said the state should not uproot the children.
"The state asked to tear them from the only home they have ever known," he said. "It's unconscionable that the state has taken that position."
