Appeals Court rules Florida's ban on gay adoption unconstitutional - case could still ultimately be decided by Fla Supreme Court

"Given a total ban on adoption by homosexual persons, one might expect that this reflected a legislative judgment that homosexual persons are, as a group, unfit to be parents,'' the opinion states. "No one in this case has made, or even hinted at, any such argument."

The opinion means that Martin Gill will be allowed to remain the parent of his two sons with his longtime partner who they adopted from the the state's foster care system last year, after having been foster parents for the boys for several years prior.

On Monday, the head of the agency that originally asked that the state help defend the law, George Sheldon with the Department of Children and Families, told reporters in Tallahassee (including CL) that he hadn't made a decision on how he would react.  "I'm torn," Sheldon said, adding that he had voted against the law back when he served in the state House in 1977.

Sheldon had said that if the 3rd DCA had ruled against Gill, his department would not take back the two boys.

The state's argument defending the ban was considered extremely weak, legally speaking.  During the November '08 trial, Florida Attorney General Bill McCollum used as one of his expert witnesses Dr. George Rekers, who was paid $300 an hour (or a total of $120,000) to say that gays made for bad parents, even though three years earlier, a judge in Arkansas had criticized Rekers' testimony in another gay adoption case.

Pulaski County Circuit Court Judge Timothy Fox had called Rekers' testimony "extremely suspect," and said that Rekers "was there primarily to promote his own personal ideology."

Earlier this year, Martin Gill told CL that he never thought he would become the face of all of those trying to overturn the state's ban on gay adoption, a distinction that Florida shares with no other states at this time.  Gill said, "Anything that excludes a portion of the population for somebody's outdated beliefs is discrimination."

Howard Simon with the Florida chapter of the ACLU applauded today's decision, saying:

"Finally, a piece of 30-year-old prejudice has been struck from the law books in Florida,'' said Howard Simon, who heads the American Civil Liberties Union in Florida and represented Gill. "This is good news for the advancement of human rights and the children in Florida's troubled foster-care system.''

But again, the question is will the state continuing to fight this to the Supreme Court?  Many legal minds say the ban cannot be addressed with any finality unless that happens.

(Incidentally, the Democratic candidate for Governor, Alex Sink, and Attorney General candidate Dan Gelber, oppose the ban.  Republican AG candidate Pam Bondi has said that she would wait to see what the 3rd DCA would rule).

In a decision that had been waited on for over a year, the Third District Court of Appeal out of Miami today ruled that Florida's 33 year-old ban on gay adoption is unconstitutional.

However, today's decision does not end the fight to ban the law originally adopted with the help of Anita Bryant back in 1977.  Legal scholars have figured all along that the issue would need to be resolved at the state Supreme Court.

The ruling today affirms Miami-Dade Circuit Judge Cindy Lederman's ruling in November of 2008 that 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 wants to adopt his two foster sons, and concluded there was consensus among researchers that there is no reason to prohibit adoptions by gays and lesbians. Last August, the case went to the three-judge panel at the Third District Court of Appeals in Miami.

The three judge panel with the Third District voted unanimously to affirm Judge Lederman's ruling.  Judge Gerald B. Cope Jr. wrote the opinion:

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