Judge rules Fla. adoption ban unconstitutional

Advocate News published Sept. 10th

Florida's ban on gays becoming adoptive or foster parents is unconstitutional, rules a Monroe County judge in letting a Key West adoption go forward, the Miami Herald reported.

Declaring the adoption to be in the boy's "best interest," Circuit Judge David J. Audlin Jr. ruled the Florida ban contrary to the state Constitution because it singles out a group for punishment, the Herald said.

Mississippi and Florida are the only states that forbid gays to adopt children. Florida's ban has been in place for 31 years.

"Contrary to every child welfare principle, the gay adoption ban operates as a conclusive or irrebuttable presumption that . . . it is never in the best interest of any adoptee to be adopted by a homosexual," Audlin wrote.

Florida does allow gays to become foster, or temporary, parents. The plaintiff, a 52-year-old Key West man, had fostered dozens of children before attempting to adopt his special-needs foster son, now 13, who has been in his care since 2001. Both are unidentified in court documents for privacy reasons.

The state Department of Children and Families did not contest the case or attempt to uphold the ban, the Herald noted; nor did Florida's attorney general.

Thus it's not clear if anyone will appeal Audlin's ruling; until they do, legal experts told the Herald, it will hold little sway against the state and federal appellate rulings that have upheld the adoption ban, most recently in 2005.

"On the one hand, this is one trial judge in Key West," Stetson University law professor Michael Allen told the Herald. On the other hand, he said, "cracks begin to develop in legal doctrine. Even if it has no effect as precedent and it is not repeated someplace else, it's a crack.

"If you get enough cracks, things break." (Barbara Wilcox)