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Family section pleased with gay adoption ruling

Senior Editor Regular News

Martin Gill and his son/photo by Carl Juste/The Miami Herald
MARTIN GILL, a gay North Miami flight attendant, has been living in a fishbowl during his legal battle to adopt two young brothers he nursed back to health and began fostering in December 2004. His July 2006 petition to adopt was unanimously upheld by the Third DCA.

Family section pleased with gay adoption ruling

Section’s brief cited twice in the opinion

Senior Editor

Brimming with big news, former Family Law Section Chair Scott Rubin walked into a luncheon at the Bar’s Midyear Meeting in Orlando on September 22.

Immediately, he told the section’s current chair, 15th Circuit Magistrate Diane Kirigin, who got everyone’s attention and turned the floor over to Rubin.

Rubin Rubin announced that the Third District Court of Appeal had unanimously concluded “there is no rational basis for the statute,” and declared Florida’s 33-year-old ban on gay adoption unconstitutional because it violates equal protection.

Embracing the ruling as particularly personal, Rubin told the crowd that the Family Law Section’s amicus brief — that necessitated a vote from the Board of Governors for the voluntary-member section to go forward, and then was successfully defended by the Bar before the Florida Supreme Court when the Liberty Counsel filed a petition to stop the brief — had been quoted twice in the 42-page opinion.

The luncheon participants erupted in spontaneous applause.

“I felt pride in being a lawyer who played a part in a great victory for children in Florida, gratitude for the courage of the Board of Governors to unanimously vote to allow the section to pursue our desire to participate in the appeal, and joy for those two boys and their dads,” Rubin told the News afterwards.

When the Bar’s Legal Needs of Children Committee met the following day at the Midyear Meeting, Chair Mary Cagle, who is the Department of Children and Families’ statewide director of Children’s Legal Services, called the ruling “a great day for Florida’s children.”

“I thought Judge Salter’s concurring opinion captured the feeling of many department employees. It was difficult to understand why homosexual foster parents could foster, and yet when it’s in the best interest of those children to be adopted by those same parents, the law prohibited it. This ruling puts those issues to rest,” Cagle said.

In his concurring opinion, Judge Vance Salter noted in a footnote that the attorney for DCF conceded “there’s no dispute that the children are in a wonderful household, where they’re well cared for, and that they’re in a household that will care for them appropriately.”

“The continued use of the legal system to attempt to unwind these relationships is simply inexplicable,” Judge Salter wrote.

“While acknowledging that my colleague is probably correct in his first footnote that ‘our ruling is unlikely to be the last word,’ I express here hope that it will be, so that all five members of this household are spared further uncertainty.”

Seeking the ‘Clearest Finality’

Two days after the ruling, DCF Secretary George Sheldon told the Bar News that he and Gov. Charlie Crist decided they would not ask for a rehearing at the Third DCA, and he was wrestling with whether to appeal to the Florida Supreme Court to bring “the clearest finality” to the contentious legal conundrum that allows gays to be foster parents but not adoptive parents.

DCF leadership immediately sent out a memo to no longer enforce the ban, instructing employees to cease questioning prospective adoptive parents about their sexual orientation.

Sheldon said he considers the Third DCA ruling “a well-reasoned decision, a unanimous decision from a diverse panel” that makes a “strong statement.”

When Sheldon was a legislator 33 years ago, he voted against the gay adoption ban pushed by former beauty queen, singer, and orange juice spokeswoman Anita Bryant that made Florida the only remaining state to expressly ban adoptions by a gay person without exception. (According to the Human Rights Campaign, Mississippi and Utah are now the only states with adoption bans for same-sex couples. )

“When you are an agency head, you don’t have the luxury of picking and choosing which laws to enforce,” Sheldon said.

“My position, frankly, is this issue doesn’t have the impact that it had 30 years ago. Society has moved a long way toward acceptance and understanding. Part of the decision is this family has been in limbo for almost two years. It is clear these children are loved, well cared for, and well-adjusted. And so I do think that whatever we do, I have got to take that into consideration to try to get finality for this family, as well as some finality statewide.. . .

“No matter what side you are on, you want clarity as to where Florida is.”

The Third DCA opinion could not have been clearer in rejecting the law that creates an absolute prohibition on adoption by homosexual persons, “while allowing all other persons — including those with criminal histories or histories of substance abuse — to be considered on a case-by-case basis.”

“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. No one in this case has made, or even hinted at, any such argument,” Judge Gerald Cope wrote in the unanimous opinion (in case no. 3D08-3044 ), along with Judges Frank Shepherd and Salter.

“To the contrary, the parties agree ‘that gay people and heterosexuals make equally good parents.’.. .

“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 adoption by those same persons.”

X.X.G. and N.R.G. call him ‘Papi’

The court’s ruling affirms the November 25, 2008, judgment of adoption made by 11th Circuit Judge Cindy Lederman. After a four-day trial, she declared F.S. §63.042(3) unconstitutional because it both violates the equal protection rights of Martin Gill, a gay foster parent, and the constitutional rights of his foster children, two young brothers he had nurtured for four years and wanted to give a permanent home. He took over care of the boys when they were four years and four months old.

The boys are referred to as X.X.G. and N.R.G. in court documents, and Gill explained that “XXG is the Spanish abbreviation for extra large, and that’s the older of the two brothers. As for the younger brother, well, he has a lot of eNeRGy.”

DCF had removed the brothers from their biological parents’ home, based on allegations of abandonment and neglect.

On December 11, 2004, the children were placed with Gill, a licensed foster caregiver the state child welfare officials knew was gay, because the child protection investigator believed the boys deserved a good Christmas.

X.X.G. arrived at Gill’s home wearing a dirty adult-sized T-shirt and sneakers four sizes too small. Both children suffered from scalp ringworm, and N.R.G. had an untreated ear infection. X.X.G. did not speak, and his main concern was changing, feeding, and caring for his baby brother.

After DCF successfully terminated the biological parents’ parental rights in 2006, the children were available for adoption. Gill, the man the brothers call “Papi,” stepped up to give them a permanent home in the household he shares with his partner and his partner’s son.

In a separate concurring opinion, Judge Salter wrote that the “steps taken by the existing three-person household to address the medical, emotional, and educational needs of the two adoptive children are nothing short of heroic.”

At a press conference the day of the court’s ruling, Martin Gill stood smiling with his lawyers from the American Civil Liberties Union, as well as the team of Greenberg Traurig lawyers who represented the children pro bono.

“I am very thrilled by this decision. I am really thrilled that it was done on the grounds of equal protection, and not only on behalf of gays and lesbians, but on behalf of foster children. It’s nice to know that we’re considered by the rest of humanity to have the same rights,” Gill said.

“We still don’t know exactly what this means. We don’t know if the state is going to bring an appeal. But at least for today, the law, this egregious, arcane law that has been on the books for 33 years, is gone. Hopefully, it will stay gone.”

Gill said that every Wednesday, when court opinions were issued at the Third DCA, he feared that losing the appeal would mean his family could be torn apart. Relief came two days before the ruling, when DCF Secretary Sheldon told reporters gathered in Tallahassee at The Florida Bar’s Reporters’ Workshop that no matter what happens in the court case, he was not going to break up the happy family.

The Power of Pro Bono

“The state has recognized what successful foster parenting looks like. And that is the impeccable and remarkable record of Martin Gill,” said Howard Simon, director of the ACLU of Florida.

Simon said the court’s ruling drove home this point:

“Given our terribly flawed, inept, public policymaking legislative process in the state of Florida, it shows that it is really easy to enact a lousy law. And it takes years, if not decades, to remove a bad law from the books. That happened now today.”

In 2007, when the ACLU filed suit on behalf of Gill, Judge Lederman reached out to Hilarie Bass, a Greenberg Traurig shareholder, to undertake pro bono representation on behalf of the two foster children.

“They always tell you that your pro bono cases will be the ones you find most meaningful,” said Bass, chair of the ABA Section of Litigation. “There is no doubt that when I look back on my career, I will be proudest of the fact that I may have assisted some of the thousands of foster children in Florida to find permanent homes with loving and capable parents.”

Elliot Scherker, chair of Greenberg Traurig’s Miami Appellate Division, handled oral arguments at the Third DCA in August 2009, and smiled broadly 13 months later.

“Mr. Gill is an excellent parent who has provided excellent care to his children for the past six years,” Scherker said. “This decision allows them to become a family and upholds the children’s rights to a stable and loving home.”

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