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Florida Ban on Gay Adoption Struck Down

By Tanya Roth, Esq. on September 22, 2010 | Last updated on March 21, 2019

Today, Martin Gill is one step closer to becoming the "forever father" of his two boys, now aged 6 and 10. Gill and his partner have been caring for the boys since they became their foster parents several years ago, but because they are a same sex couple, they are not allowed to adopt under Florida law. On September 22, the Florida Court of Appeals handed down a decision which found the state's blanket ban on gay adoption was unconstitutional.

The court of appeals found the state ban on gay adoption was unconstitutional because same sex parents were the only ones who could not have their petition for adoption reviewed on a case by case basis, according to the report by the Associated Press. Writing for the three-judge panel, Judge Gerald B. Cope, Jr. said, "It is difficult to see any rational basis in utilizing homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on those same persons."

The rational basis test the court used is one that is applied to questions of constitutionality where there is not a protected class (such as gender or religion) or a fundamental right (such as speech, or assembly) at risk. The state need only show in these cases that it has a rational basis for enacting the law in question. One reason the court pointed to that showed the state, represented by the Florida Department for Children and Families, did not prove that rational basis was the fact that all other groups of people, including those with criminal records, could petition for adoption and be considered on a case by case basis. Only gay couples faced a blanket ban.

The Department argued that children in gay families were shown to be more sexually active and face more bullying at school. However, the AP reports, the court found these statements were not supported by the evidence. Further, even the Department admitted that "that gay people and heterosexuals make equally good parents."

Martin Gill told the AP the long case has been agonizing for him, and he worried constantly that "week after week that my kids might be taken away." The case will very likely be appealed to the Florida Supreme Court, but until then, Gill and his partner are still parents to their boys.

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