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Beyond the Ban

Beyond the Ban

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A Florida appellate court changed the course of gay rights in the state last week with its landmark decision deeming the 33-year ban on adoption for gay and lesbian parents unconstitutional. On top of that, Gov. Charlie Crist said the state would immediately stop enforcing the ban and that state agencies would recognize the children of adoptive parents.

Still, with such a victory comes questions for Floridians looking to expand their families. Attorney Shelbi Day of the American Civil Liberties Union, the group that represented plaintiff Martin Gill, explains what people should expect in the weeks to come.

The Advocate: What are the next steps in the courts and in the legislature for gay adoption in Florida?
Shelbi Day: It depends on whether or not the state appeals. If the state does not appeal, then courts throughout the state of Florida would be bound to uphold the third district court of appeals' opinion, saying that Florida's adoption ban is unconstitutional. When the judgment becomes final, which is 15 days from [September 22], when the opinion was issued, gay people could start adopting kids. If the state does appeal, which they have 30 days to decide whether or not to appeal, then the case would go up to the Florida supreme court. I would expect it could take another year or year and a half. That's just a guess, but it would take a while to make it through that court process, to get the case fully briefed, have oral arguments, and then wait for the decision. They would have the final say because this is under the Florida constitution.

How soon can gays and lesbians adopt children?
What we would have is...a provision in Florida's adoption act saying that [the ban on adoption for gay parents] is unconstitutional. Therefore, the trial courts would have to allow gay people to undergo the same process for adoption in the same ways that any nongay person is. That would be effective immediately.

How many people in Florida does this decision affect?
What we do know is that immediately there would be a whole other pool of potential adoptive parents to be considered for adoption, which is sure to put additional children in the child welfare system in permanent homes. That means there are kids who will have a greater likelihood of being adopted and having a family. As far as the exact number, we simply don't know. The response we've received -- as well as others in the field of dependency adoption that I've spoken to have received since Wednesday -- has been from many gay people who want to know what this means, how it effects them, and whether this means they can adopt or foster, or if they already are foster parents, whether they can adopt those children. So I know it's had an immediate impact in terms of creating a lot of interest in the gay community about looking at adoption options for their families.

How does Governor Crist's announcement last week that he wouldn't enforce the ban that's on the books affect the law? Is that a temporary change until the law is officially repealed?

Yes, it is something that can be changed by future administrations, but the likelihood of that happening is limited. It wouldn't change the fact that the trial courts would be bound to follow the third district court of appeals opinion. But certainly, future administrations could try to change that. They would have to go through the appellate court system. But I think as more and more gay people adopt, then future administrations and more and more Floridians will see, this has a positive impact on the child welfare system, and we can put a broader face on the issue as far as what a gay family looks like, and what a prospective adoptive gay parent looks like, then the possibility of it being undone will be more remote.

Can this decision be used in other facets of advancing gay rights in Florida?

I think generally it moves us forward on LGBT rights issues, and for Floridians -- I mean, as someone who lives in Florida, and a gay person in Florida as well as a lawyer on this case -- this really was an astounding victory for an intermediate appellate court to issue a unanimous opinion and recognize our clients' rights vis-a-vis the constitution, so it's a huge step forward. I think it remains to be seen how this case can be used in terms of other cases on LGBT rights in Florida, but in general, it was a huge step forward from both a political and legal standpoint. So as a person looking forward to litigating other LGBT cases in Florida, I look forward to seeing how this advances LGBT issues further.
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