Charlie Crist

Neither the Florida Department of Children and Families (DCF) nor Governor Charlie Crist (I) will appeal a September 22 ruling that overturned the state ban on adoption by gay men or lesbians.

But one question remains: Will state Attorney General Bill McCollum, who has said he does not believe gay people should adopt, appeal on his own?

DCF issued a statement October 12 saying the ban is now “unconstitutional statewide,” and the Third District Court of Appeal ruling is “binding on all trial courts.”

A spokesperson for DCF, Joe Follick, confirmed that DCF worked with Governor Crist in deciding not to appeal.

Immediately after the Third District ruling, Crist said he would no longer enforce the ban, but it was unclear whether he would ask that the decision be appealed to the Florida Supreme Court.

The DCF said that it considered such an appeal “to achieve an ultimate certainty and finality for all parties. But the “depth, clarity and unanimity” of the Third District and circuit court decisions have “made it evident that an appeal would have a less than limited chance of a different outcome.”

None of the three Third Circuit judges who ruled unanimously to overturn the ban could be accused of liberal bias. Gerald B. Cope, Jr. was appointed by Republican Governor Bob Martinez in 1988. Vance E. Salter and Frank A. Shepherd were each appointed by Governor Crist. (Crist was a Republican before switching to Independent in order to run for the U.S. Senate.)

Salter was also honored by Pope John Paul II for his charitable service. And Shepherd was appointed to a position in the Environmental Protection Agency by President Reagan in 1981. He has also held senior positions in the conservative/libertarian Pacific Legal Foundation and James Madison Institute.

DCF spokesman Follick told Keen News that the agency weighed the toll that an appeal would have on plaintiff Frank Martin Gill and his family. Gill was trying to adopt the two boys he and his partner have raised for almost six years.

Gill had said in a statement on September 22 that “ending this case now” would be the quickest way for him to adopt the boys and remove barriers for other children to be adopted.

McCollum’s communications director, Ryan Wiggins, said in an e-mail October 12, “We appreciate [DCF’s] announcement, and look forward to a conversation with DCF about what the next actions will be.” By law, McCollum has until October 22 to appeal.

McCollum has been criticized by LGBT rights groups and others for paying clinical psychologist Dr. George A. Rekers more than $120,000 to testify in the trial court that children do best with a mother and a father. The appeals court upheld the lower court’s finding that Rekers’ opinions “were not valid from a scientific point of view.” (Rekers was later found traveling with a gay male escort who claimed Rekers himself was gay, although Rekers has denied it.) The Miami Herald reported in June that it had obtained records showing that McCollum hired Rekers despite repeated objections from DCF.

McCollum told the Florida Baptist Witness in August, “I don’t believe in gay adoption”—but Orlando Sentinel columnist Mike Thomas reported that in May, when he had asked McCollum if he favored taking the boys from Gill, McCollum mentioned a gay campaign aide who had adopted children and said, “Let’s leave it at that.”

Despite the DCF’s decision not to appeal the Gill case, Follick said it has not yet determined whether to drop its appeal in the case of Vanessa Alenier, a lesbian who in January was allowed to adopt the infant cousin for whom she was a permanent guardian. The Third District court heard arguments last month.

Alenier’s lawyer, Alan Mishael, said he does not yet know how the Gill decision will impact his client’s case, which has been argued on different grounds. Gill’s attorneys argued that the adoption ban violated the principle of equal protection—that all are equal before the law. Mishael is arguing that it goes against a state prohibition on “special laws” telling judges how to rule in adoption cases, violates the separation of powers between government branches, and is a bill of attainder—legislative punishment of a defined group without a judicial trial.

Judge Cope, who wrote the opinion in the Gill case, is one of the members of the three-judge panel that will decide the Alenier case.

Mishael also noted that McCollum did not appeal rulings that had granted adoptions to Mishael’s client Wayne LaRue Smith and to Robert Lamarche, both gay men.

DCF, said Follick, did not appeal those cases because the men were already permanent guardians, and the children were not being adopted directly out of state care. McCollum’s office did not respond by press time as to why McCollum did not appeal on his own, however.

Equality Florida, the state’s largest LGBT rights group, said on its Web site that the decision not to appeal the Gill case was a “tremendous victory,” but added, “The same anti-gay forces who pushed for Florida’s marriage amendment in 2008 will likely try to put a return of the adoption ban up for a statewide vote [in] 2012.”

For the moment, however, DCF has revised its application forms to omit the question about sexual orientation and instructed staff not to ask about or consider sexual orientation in evaluating prospective parents. Instead, DCF told them in a memo (obtained by Equality Florida), “Focus your attention on the quality of parenting that prospective adoptive parents would provide, and their commitment to and love for our children.”