Gary Segura

When child protective services took two young children from their home and brought them to Frank Martin Gill and his partner in December 2004, the investigator told the men, experienced foster parents, that the boys deserved a good holiday. The men were planning to move soon but agreed to take them temporarily.

It was clear the boys, ages four years and four months, needed care. The elder boy was wearing a dirty adult-sized t-shirt and sneakers four sizes too small. He did not speak, and his only concern was caring for his infant brother. Both boys had scalp ringworm and the younger had an ear infection, but the medicines brought from their home had been unused. When the older boy began to speak after about a month, the men learned he had never seen a book, could not count, and did not even know letters from numbers.

The brothers stayed and the men did not move. The boys developed friendships at school and in the neighborhood. They bonded with the biological son of Gill’s partner and with the men’s parents and siblings. They began referring to Gill and his partner (who is not identified in court documents) as “Papi” and “Daddy.” In 2007, after the rights of the biological parents were terminated, Gill petitioned to adopt.

The men, however, live in the state of Florida—the one state that bans any gay men or lesbians from adopting. And that has created a dilemma for the courts: either they honor the law or honor their duty to rule in the best interests of the children.

Despite a positive home study, the Florida Department of Children and Families denied Gill’s adoption application. With the help of the ACLU of Florida, Gill sued the state. (The men felt they would stand no chance if they sued for a joint adoption.) During the trial, the court heard expert testimony from a psychologist who had assessed the boys and determined they would be “emotionally devastated” if taken from their current home.

In November 2008, Miami-Dade Circuit Judge Cindy Lederman ruled that the adoption ban violated Gill and the children’s right to equal protection under the state Constitution. The government, she said, failed to demonstrate a rational reason for imposing the ban, and the law obstructed the right of children to a permanent, stable home as provided by federal and state law.

The state Department of Children and Families (DCF) appealed the ruling to the state’s Third District Court of Appeals, which heard arguments in August 2009. The decision has now been pending for a year.

A few other states have some restrictions on gay people adopting children, but Florida is the only state whose law specifically bans adoptions by all gay men or lesbians. Mississippi bans same-sex couples from doing so, and Arkansas, Michigan, and Utah ban unmarried couples (by definition, all same-sex couples in the state).

So far, despite the ban, Florida courts have ruled three times to allow an adoption by a gay or lesbian parent. The first was in August 2008, when a Monroe Circuit judge allowed Wayne LaRue Smith to adopt the boy he and his partner had been fostering since 2001. Because Smith had already been named the boy’s legal guardian, neither DCF nor the attorney general appealed.

The second adoption was granted to Gill through Lederman’s ruling in November 2008. The third was in January 2010, when a Miami-Dade circuit judge allowed Vanessa Alenier to adopt the one-year-old she and her partner have been fostering. The judge said the adoption ban was “unconstitutional on its face.” The state has appealed that decision, too.

Nadine Smith, executive director of Equality Florida, an LGBT advocacy group, observed in an interview, “Judges are beginning to push back and say ‘There’s a contradiction in this law that does not allow us to carry out our prime mission, and that is that the children have to come first. What their needs are has to be the primary guidance in what we do.’”

Florida legislators have also recently attempted to overturn the ban in the legislature. Three bills were introduced in March, but two were withdrawn before a vote and one died in committee.

And Governor Charlie Crist, who now running for U.S. Senate, told TIME magazine in June he believes in “a live and let live attitude as it regards adoption [by gay men and lesbians].” He said “the best decision maker would be a judge,” but that the current law must change first.

“I’m sure that a future legislature and maybe the next governor might address that issue,” he added.

Beyond Florida, some LGBT experts and advocates think that adoption could be the next major target—after marriage equality—for opponents of LGBT civil rights. In the federal trial this year challenging the constitutionality of Proposition 8, California’s ban on same-sex marriage, a witness for the plaintiffs, Dr. Gary Segura predicted that, as fewer states are able to use the initiative process to contest same-sex marriage, “the new front line would be gay and lesbian adoption.”

“I would not be surprised to see anti-adoption initiatives appearing in the near future,” said Segura, professor of political science at Stanford University.

Equality Florida’s Smith agreed, saying, “The entire country has a stake in ending [the Florida] adoption ban so that the far-right doesn’t begin trying to export it and expand it elsewhere through the same mechanisms that they pushed the marriage ban. . . . The far-right nationally is geared up to defend and expand this ban and we’ve got to be geared up nationally to defeat it.”

There are signs of this already. The Arizona House approved a bill at the end of February that would give preference to married couples when placing children with adoptive parents. It is now in the State Senate.

And voters in Arkansas approved that state’s ban on allowing adoptions by unmarried couples in November 2008. In April, a state circuit judge struck down the ban for that circuit, but the state is expected to appeal.

Anti-LGBT groups have long tried to tie the right to parent with the right to marry. In the Proposition 8 case, for example, attorneys defending the marriage ban tried to persuade the court that an opposite-sex couple provides the best family structure for raising children, and that marriage should therefore be limited to opposite-sex couples.

The defense’s star witness, David Blankenhorn, president of the Institute for American Values, however, testified, “I believe that adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children.”

Attorneys on the plaintiffs’ side brought in two experts who had also testified in the Florida Gill case. One was Dr. Michael Lamb, professor of developmental psychology at Cambridge University, who spoke in both cases about the extensive research showing that children do as well with gay or lesbian parents as with straight ones. The other was Dr. Letitia Peplau, professor of psychology and sociology at UCLA, who testified to the stability of same-sex relationships.

Anti-LGBT groups may have better luck at the ballot box than in the court room, as the field of experts to testify on their behalf about same-sex couples and children seems to be shrinking. In the Gill case, the DCF brought in two experts for the trial court hearing who argued that gay men and lesbians were not suitable to become parents. Judge Lederman said of one, clinical psychologist Dr. George Rekers, “the court can not consider his testimony to be credible nor worthy of forming the basis of public policy.” (Rekers was later reported to be traveling with a gay male escort who claimed Rekers himself was gay. Rekers responded that he spends time with sinners in order to help them.)

The other DCF expert, Dr. Walter Schumm, associate professor of family studies at Kansas State University, seemed to argue for Gill when he said, during the Florida trial, that “gay parents can be good foster parents,” and “the decision to permit homosexuals to adopt is best made by the judiciary on a case by case basis.”

Only one federal bill seeks to address the issue. The Every Child Deserves a Family Act, introduced by Rep. Pete Stark (D-Calif.) in March, would prohibit federal funds to states that discriminate in adoption based on sexual orientation or gender identity. Gill himself testified at a U.S. House panel discussion when the bill was introduced. The bill is now in the House Ways and Means Committee and has 29 co-sponsors, but there are no scheduled hearings and no Senate counterpart, making it unlikely it will pass this session.