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Gay Adoption Ban Facing Serious Challenge

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Tallahassee, FL – This week a Miami appeals court upheld a ruling overturning Florida's law banning adoption by gays. Advocates say the move gives so much momentum in an ongoing effort to end Florida's 33-year old ban, but plenty of questions lie ahead. Trimmel Gomes takes a look at the case that has dominated headlines this week.

The ruling from the Third District Court of Appeals affirms a lower court's ruling that the ban is unconstitutional, which makes way for the controversial adoption of two foster children by a gay North Miami couple. Nadine Smith, the Executive Director for Equality Florida, calls the ruling a major victory for the lesbian, gay, bisexual and transgendered community.

"Finally people realizing that this law is based on a lie, and the lie has been exposed, all the social science says that sexual orientation has nothing to do with one's ability to parent."

[sound of a rally] "Yes we can, yes we can...The vast majority of states have always allowed gay men and lesbians to adopt, so this is not a social experiment."

During the 2009 legislative session, Equality Florida organized a rally at the Capitol. Hundreds of people crowded the courtyard and listened to the story of Frank Martin Gill, a foster father, who took on the role of parenting two brothers from state care.

"Our two children that they asked us to take, we did take them because they said it was going to be a month or two, and we though it's ok we are going to take them a month or two. The social worker said you can give them a nice Christmas, that really got me because I know that sometimes around Christmas they have a lot of trouble placing children some of those kids end up in shelters and the thought of these two children being in a shelter for Christmas just broke my heart."

Gill and his partner aren't strangers to the foster care system. They've temporarily cared for a total of ten kids of which eight found loving homes. But the state had difficulty finding a permanent living situation for the two brothers, who were neglected. A few days before Christmas, Gill received a call from the Department of Children and Families.

"So then they all turned to us and they asked us, are you interested in permanency with these children, and I said yes, but you know the story, we became foster parents together. We were a couple we never lied about that."

Even though Gill was willing to permanently care for the brothers, Florida law only allowed the couple to be foster parents because they were gay. On Gill's behalf, the ACLU filed suit to overturn the state's 33-year-old ban. In 2008 the couple was granted adoption rights, but the state immediately intervened and appealed the decision. But Gill and his family were again victorious when Florida's Third District issued a ruling that said allowing gay men and women to be foster parents, but not adopt, did not have rational basis and violated the equal protection clause in the state constitution. Equality Florida's Nadine Smith:

"I happen to agree with the courts, I happen to agree with every respected child welfare agency in the country that has denounced this ban that says it's based on prejudice and fear not fact or reality and here is the reality, lots of gay people are raising children."

The ruling was an immediate sigh of relief for gay rights activists, but strangely, soon after the decision, the ACLU encouraged the state to appeal, thinking this will allow the case to reach the Supreme Court where a similar ruling would permanently put an end to the ban. That same day Governor Charlie Crist said he was supportive of the plan.

"If that continues to be their desire, we would support that and I think given the makeup of the current Supreme Court they would have a very good chance to get a very good ruling. I certainly hope so."

But the ACLU has since changed its stance. Now it is saying an appeal to the state's high court isn't necessary to bring a final end to the ban. ACLU attorneys claim the appeals court ruling that the ban is unconditional applies statewide.

"That's not, there has never been a situation where one district court of appeal could rule on a statute and have it applied statewide," said Mathew Staver, an attorney and founder of the Liberty Council, which is against lifting the ban. He says if the ruling doesn't get appealed, gay couples will only be able to adopt in South Florida, in the Third District.

"Secondly, you're still in the time for appeal, so this ruling has not yet become final, so we're not in the position where people can go out and violate the law," Staver said.

But Peter Digre, the assistant secretary for operations at the Florida Department of Children and Families, has issued new instructions on child adoption in light of the appeals court decision. When it comes to sexual orientation, from now on, don't ask.

DCF Secretary George Sheldon said he is still reviewing the ruling and hasn't made a decision yet about an appeal.