Florida’s Gay Adoption Ban is Dead

Posted on 22 Oct 2010 at 6:44pm

By Leslie Cooper, Senior Staff Attorney, ACLU LGBT & AIDS Project

Our latest challenge to the law ended in victory this afternoon when Florida Attorney General Bill McCollum announced that he would not appeal the decision of the 3rd District Court of Appeal striking down the statute. After the court’s powerful decision on September 22, the Florida Department of Children and Families announced that it wouldn’t appeal to the Florida Supreme Court, and Gov. Charlie Crist supported the decision, hailing the court’s ruling as a victory for children. But the attorney general had the option to independently appeal and had indicated that he was exploring that option. With his announcement today, the law is officially dead.

Because it was not appealed, the District Court of Appeal’s decision striking down the law has statewide effect. Gay people across the state are now free to apply to adopt and will be considered based on the same criteria applied to everyone else— their ability to provide a loving, safe home for a child.

On my first day as a staff attorney at the ACLU 12 years ago, my first assignment was the Lofton case, a federal court challenge to the Florida law, and the fourth of the ACLU’s five legal challenges. After five years of litigation, that case ended in heartbreak with a devastating loss at the federal circuit court. That court held that the statute was constitutional based on the “unprovable assumption” that children are best off being raised by a heterosexual couple. We began working on the latest case, a state constitutional challenge brought on behalf of Martin Gill, shortly thereafter and it took several years to get through the trial and appellate courts.

Having spent the better part of my legal career fighting this hateful law, this day means so much to me personally. First, it’s a tremendous vindication to have the court recognize what we’ve been trying to show all these years — that gay people and heterosexuals make equally good parents and that there is no basis for Florida to brand our entire community with the degrading label of “unfit parent.” We finally had the chance to put on trial the negative stereotypes about gay people that were offered in defense of the law and the court found them to be baseless. It also found that the expert witnesses the state put up to spout this shameful testimony were biased or otherwise not credible. In the absence of a single study finding any harm associated with being raised by gay parents, it is not surprising that the State couldn’t find anyone better to support the law. That’s because the law is unsupportable. And the appellate court’s decision has declared that to be so.

This victory also means that for the parents I’ve represented over the years, who put their families and their lives under the spotlight so that we could show the courts and the public what gay parents really look like, it was worth it. They include Steven Lofton and Roger Croteau, pediatric nurses who welcomed HIV+ infants into their family in the early 1990’s and did not accept it when they were told that the children had a 2-3 year life expectancy. They fiercely advocated to get these children the best new treatments available and are now the parents of young adults. Doug Houghton, also a nurse, became the legal guardian of his son at the request of the child’s biological father after Doug was caring for the child in the hospital where he worked. Wayne Smith and Daniel Skahen have been foster parents to many children, including two boys who were permanently placed with the couple. The children came to them having suffered extreme abuse and neglect. One was so traumatized he didn’t speak. But after some time in the loving, patient care of Wayne and Daniel, these children became happy and healthy (and talkative) little boys.

And now all of Florida has had the opportunity to get to know Martin Gill, the plaintiff whose case brought us today’s victory. Martin and his partner have been foster parents to two brothers, now 6 and 10, for nearly 6 years. The boys came to Martin’s family in bad shape. They had ringworm, one had an untreated ear infection, and they were filthy. The 4 year old was used to feeding and changing his infant brother. Now, they are thriving, sweet kids. Of course their parents, like all of our clients, do their best to make their kids feel secure in their place in the family despite the inability to adopt them. But as children grow up, they understand what it means to be adopted as opposed to being in foster care. For Martin’s 10-year-old, being adopted means that he and his brother will get to have the same last name as their Papi and that, he says, will make them a family.

The victory in Martin’s case means his two children will finally get to have the name Gill and fully feel like a family. Unfortunately this victory came too late for many of our other client’s families. A number of those children have already reached adulthood, getting through their entire childhoods without ever getting to be adopted. But their families’ stories have paved the way for so many other children. These parents represent the best of what we hope for for children in foster care—or any children. And the fact that these children had to go so long without the emotional security of being adopted is heartbreaking. Without these parents telling their stories, which embody what was so terribly wrong about the Florida law, we never could have reached this day. They did more than anyone to help change hearts and minds and convince people that this law is irrational and damaging to children.

This is a day for the gay community in Florida and across the country to celebrate the toppling of one of the most notorious and longstanding anti-gay laws on the books in the United States.

Today is also a new beginning for the thousands of children waiting to be adopted in Florida who, for far too long, bore the brunt of the homophobia that is responsible for this law, and now have a whole new universe of families who could be there for them.

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