BY CAROL MARBIN MILLER, cmarbin@MiamiHerald.com
A Monroe Circuit Court judge has ruled Florida's 31-year-old gay adoption ban ''unconstitutional'' in an order that allows an openly gay Key West foster parent to adopt a teenage boy he has raised since 2001.
Declaring the adoption to be in the boy's ''best interest,'' Circuit Judge David J. Audlin Jr. said the Florida law forbidding gay people from adopting children is contrary to the state Constitution because it singles out a group for punishment.
Florida is one of only two states -- the other is Mississippi -- that forbids gay people from adopting.
Circuit judges in Florida have found the statute unconstitutional twice before, both in 1991, but both challenges stalled. A Miami case expected to be heard next month may provide an additional challenge to the law.
At the heart of the Monroe case is a 13-year-old boy with learning disabilities and special needs who has lived in his Key West foster father's two-story home since the Department of Children & Families placed him there in 2001. The boy is identified as John Doe. The father, 52, is not identified.
Audlin appointed the foster father as guardian for the boy in 2006. At a recent hearing, the boy testified he wanted the man to be his ''forever father'' -- like all the other kids had -- ''because I love him,'' the order says.
A home study by a social worker ''highly'' recommended the guardian and his partner be allowed to adopt the boy, saying the two men provided a ''loving and nurturing home,'' provided ''fair and consistent'' discipline and are financially secure, the order says.
Miami attorney Alan Mishael, who represents John Doe's guardian, declined to discuss the ruling, since Audlin has not yet published it formally. He said the ruling is less about public policy than the welfare of a former foster child who wants a father of his own.
''This is a case about a young man who already had a permanent guardian but wanted to have a father,'' Mishael said. ``That's what the case is about. That's all it's about.''
In the ruling, the judge noted that the statute was passed by lawmakers in 1977 amid a politically charged campaign to, as one lawmaker at the time put it, send gay people ''back into the closet.'' Audin said the law violates the Constitution's separation of powers by preventing family court and child welfare judges from deciding case-by-case what is best for a child.
''Contrary to every child welfare principle,'' Audlin wrote, ''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.
In 1991, a Key West judge tossed out the anti-gay adoption statute as a violation of privacy and equal protection, but the ruling never was published or appealed.
That same year, a Sarasota Circuit judge declared the law unconstitutional, citing the earlier case. But two years later, an appeals court in Lakeland reversed the decision, in a case involving a man named James W. Cox who had been told he could not adopt a foster child. The Florida Supreme Court agreed with the Lakeland court in 1995.
State law does not preclude gay people from fostering abused and neglected children. John Doe's guardian has cared for 32 children who were in DCF custody, the order says.
DCF Secretary George Sheldon said his agency took no position on the Key West adoption because the boy already had been placed in a permanent guardianship with his foster father, essentially stripping DCF of authority over family decisions. ''We were not a party, and we are still not a party,'' he said.
Sandi Copes, press secretary for Attorney General Bill McCollum, declined to discuss the Key West ruling. McCollum's office chose not to become involved in the case because the teen was no longer in DCF's custody, Copes said.
The attorney general still can appeal the order, the ruling says.
Surveys done by the U.S. Department of Health and Human Services suggest gay couples already are raising children in large numbers.
A study published last year by the Williams Institute at the UCLA School of Law, which used data provided by Health and Human Services said one-third of lesbians and 16 percent of gay men have kids. Of those without children, 41 percent of gay women and 52 percent of gay men said they would like children.
Forty-six percent of lesbians said they had considered adoption -- as compared to 32 percent of straight women, according to the study, which did not include data for gay men. In all, the study said, two million gay people nationwide said they would like to adopt.
Mathew Staver, founder and chairman of the Orlando-based Liberty Counsel, a conservative advocacy group, called the ruling ``absurd.''
''State and federal courts have already addressed the constitutionality of Florida's law, and both have upheld it,'' Staver said. He said Audlin ``has no authority to disobey state and federal court precedents.''
''I think this kind of ruling illustrates why judges should judge and not be activists,'' Staver added. ``Apparently, he should run for office, as opposed to sitting behind a bench.''
Howard Simon, executive director of the ACLU of Florida, which has litigated several cases on behalf of prospective adoptive parents who are gay, defended the ruling, 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,'' Simon said.
As an order from a trial judge that has not been appealed, Audlin's ruling is unlikely to hold much sway as legal precedent, several constitutional scholars said. Florida's gay adoption ban has been upheld repeatedly by state and federal appeals courts, they noted.
''On the one hand, this is one trial judge in Key West,'' said professor Michael Allen, who teaches constitutional law, federal courts and civil procedure at Stetson University's law school in St. Petersburg. ``But for these two men and their child, it has greater effect than any order by the Supreme Court.''
He said the ruling, and the adoption hearing set for next month involving a gay foster father from Miami, may start to chip away at the state law.
''Cracks begin to develop in legal doctrine,'' Allen said. ``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.''