Florida's ban on gay adoption goes before appeals court

A Miami appeals court that will help decide the fate of Florida's ban on adoption by gay people grilled lawyers on both sides of the dispute Wednesday as it grappled with a thorny question: Does the law protect children from a risky lifestyle, or merely punish a group disliked by lawmakers?

During oral arguments before the Third District Court of Appeal, an attorney representing the Department of Children & Families defended Florida's 32-year-old ban on gay adoption by insisting the state has a sensible interest in protecting children from social ills that are more common among gay men and women.

"There is evidence that homosexuals have higher rates of mental disorders, suicide and domestic violence," said Timothy D. Osterhaus, deputy solicitor general for Florida Attorney General Bill McCollum, who is representing DCF. "This is a plausible rationale."

And in comments outside a Florida International University courtroom, where the arguments were held, John Stemberger, president of the Florida Family Policy Council, declared it was good public policy to promote the adoption of vulnerable children only by households headed by married mothers and fathers.

"We should focus on what is best for kids, not on what we can get by with," said Stemberger, who was heckled and interrupted by activists as he answered questions from the press.

DCF is appealing a November ruling by Miami-Dade Circuit Judge Cindy Lederman that declared the 1977 statute unconstitutional. Lederman's ruling allowed foster parent Martin Gill of North Miami, who is openly gay, to adopt two half-brothers the agency placed in his care in 2004.

Florida is the only state that excludes all gay men and lesbians from adopting, though it allows gay and lesbian foster parents. Last year, voters in Arkansas passed a measure forbidding adoption by single people after a court there dismissed a state rule excluding gay people from fostering children.

The appeals panel -- Judges Gerald B. Cope Jr., Frank A. Shepherd and Vance E. Salter -- is not expected to render a decision quickly, and it is not likely to be the last word: Most legal experts predict the case ultimately will be decided by the Florida Supreme Court.

A central question before the appeals court is whether the state has a "rational basis" to declare all gay men and women ineligible to adopt. Lawyers for both Gill and the two boys argue the state can effectively screen for mental illness, substance abuse or other risks to children -- as it does with all other prospective adoptive parents.

In his questioning of Osterhaus, Shepherd asked whether DCF had a means to determine whether prospective adoptive parents are susceptible to mental illness, drug abuse or domestic violence -- or whether such risks were "unascertainable."

"If these conditions can be examined," Shepherd said, "the statute fails."

Cope noted that lawmakers chose not to forbid drug addicts, child molesters or even murderers from adopting, but explicitly banned only gay people. "This is the only absolute disqualifier, as far as I can tell," Cope said. "How can that be justified?"

Elliot Scherker, who represented the now 5- and 9-year-old children, said it was illegal to engage in same-sex acts in 1977, when the Legislature passed the disputed law amid a heated national debate over gay rights and a backlash that included calls to send gay people "back into the closet."

(Via Miami Herald)