Maybe the third time will stick and grow in Florida. A Monroe County (Key West) Circuit Judge David J. Audlin Jr. ruled that a 52-year-old gay man could adopt the special needs 13-year-old boy he has raised as a foster parent since 2001. The judge said that the state's 1977 ban on adoption by homosexuals was unconstitutional.
Twice in 1991, Florida circuit-court judges have declared the prohibition unconstitutional. Likewise in this case, the ruling is not likely to set precedence, at least not immediately. In this case, the unidentified boy is no longer in the foster-care system. State AG Bill MCCollum said his office would not get involved.
In the previous cases, another Key West judge declared the ban violated privacy and equal protection. Because the ruling was neither published nor appealed, it went no farther. Also, a Sarasota judge cited that case in declaring the ban unconstitutional. A Lakeland appeals court overruled that, saying the gay man could not adopt his foster child. The state Supreme Court agreed in 1995.
The current case has the attention of the anti-gay, anti-same-sex marriage Liberty Counsel, which is nationwide in its legal actions but based in Florida. The LC chairman, Matthew Staver, called the ruling "absurd" and claimed that courts had already vetted the constitutionality of the ban. It remains to be seen whether LC will try to insinuate themselves in the case somehow.
The ruling is not yet public, but we know:
- The foster father has cared for 32 children
- The Department of Children and Families (DCF) had already placed the teen in his permanent guardianship
- This effectively took the teen out of DCF control
- A social worker's home study highly recommended the man and his partner be allowed to adopt the teen into their "loving and nurturing home"
The ruling is in line with numerous others elsewhere in which the welfare of the child is the prime consideration. The executive director of the Florida ACLU, Howard Simon, welcomed the finding, saying, "Child welfare policy has been held hostage by politics (for too long). You won't find a child welfare professional or organization that does not believe judges ought to be able to make individual determinations as to who would be good adoptive parents and who would not"
The lawyer for the adoptive dad in this case suggested what may be the future for such cases that are decided individually instead of through a law change or sweeping court decision, Miami attorney Alan Mishael said, "This is a case about a young man who already had a permanent guardian but wanted to have a father. That's what the case is about. That's all it's about."
The whole area of gay adoption rights seems to fall in the direction of equality in the interest of children. At least 11 states specifically forbid discrimination by sexual orientation. However, several still have openly discriminatory laws.
Florida specifically forbids "homosexuals" from adopting. Mississippi's 2000 law does not allow same-sex couples to adopt. Utah has one odder 2000 law that forbids "cohabitating" (unmarried) couples from adopting; it further twisted this in 2007 by giving married couples preference over single people in adoption. By policy, Michigan denies adoption to same-sex couples legally married elsewhere, and Nebraska forbids adoption by people "who are known by the (Department of Social Services) to be homosexual or who are unmarried and living with another adult."