Florida's gay adoption ban being argued in appeals court

Gay people should not be singled out by Florida's strictest-in-the-nation law that prohibits them from adopting children even if they would otherwise qualify as parents, attorneys for a gay adoptive father and his two young sons told an appeals court Wednesday.

``There is no basis for group bias against gay people as parents,'' said Elliot Scherker, who represents the two brothers adopted by Martin Gill. ``The fitness of gay people as parents should be evaluated on a case-by-case basis.''

Florida is the only state with a law flatly banning gays from adopting children without exception, according to the American Civil Liberties Union

A Miami-Dade County judge last year ruled the gay adoption ban unconstitutional, but the state appealed. A three-judge panel of the Third District Court of Appeal heard oral arguments Wednesday, with a ruling unlikely for several months and another appeal to the state Supreme Court probable.

Judge Gerald B. Cope Jr. noted that a Florida law first passed in 1977 excludes only gay people from adopting if they meet all the other qualifications as parents. Gay people are permitted to be foster parents or guardians under Florida law, which many attorneys say is inconsistent.

``How can that be justified?'' Cope asked.

Timothy Osterhaus, the deputy solicitor general representing the state Department of Children & Families, urged the judges to focus on a relatively narrow legal question: whether the Legislature had a ``rational basis'' for the law because of purportedly heightened risk factors among potential gay parents. If there was such a basis, Osterhaus said the appeals court should reverse the earlier decision.

Osterhaus cited as risk factors studies indicating gay people have higher instances than heterosexuals of psychiatric disorders; that children in gay homes are more sexually active; that gay relationships are less stable; and that children in gay homes suffer more bullying and teasing from other kids because of their parents.

``We're talking about the cumulative effect. The rational basis test requires a single plausible reason,'' Osterhaus said.

But Scherker and Leslie Cooper, an ACLU attorney representing Gill, said the studies about gay parental risks are either outdated or misleading. They said Miami-Dade Circuit Judge Cindy Lederman found after an exhaustive four-day trial last year that it was ``beyond dispute'' that there was no scientific or societal reason to ban gay people from adopting.

``Gay people as a group don't have a greater allocation of risks,'' Cooper said.

After the hearing, Gill said he and his partner fear if the law stands the two boys, ages 5 and 9, would be removed from their home and split up. He said both are thriving and happy, just starting a new year of school.

``We are committed to keeping them together,'' Gill said.

The hearing drew activists on both sides, including John Stemberger, president of the Florida Family Policy Council that favors keeping the law. Stemberger, jeered by several gay activists during a press conference, insisted there is ample evidence that children do better in a heterosexual household.

``The research is crystal clear,'' he said. ``Kids do better with a mother and a father.''