[I’m altering the original post to reflect the actual position of Martin Gill and his lawyer, the ACLU. They have asked that no appeal be taken.]
This story (and indeed, this post) is a follow-up on a couple of posts from yesterday about a major Florida appellate decision. You can read those for more details. Suffice it to say, the Florida mid-level appellate court struck down a 1970s-era statute that banned lesbians and gay men from adopting children in Florida.
The question of course, is what happens now. As I’ve written in the past, and as today’s Miami Herald notes, this issue is a live one in both the judicial and the electoral arenas. That’s important to keep in mind.
So who can adopt in Florida today? Apparently as far as current administrators are concerned, the anti-lesbian/gay adoption provision has been struck down and is no longer operative. The implication is that they’ll allow lesbian and gay people to adopt from here on out. This is a significantly broader position than the one I noted yesterday–that they would not disturb the Gill adoption.
There’s also the question of whether the ruling will be appealed to the Florida Supreme Court. As it stands, the law has been ruled unconstitutional. If no appeal taken, then the ruling stands and I don’t think a subsequent administration of a different inclination could decide to enforce the law.
At the same time, a ruling of a mid-level appellate court does not have quite the same force as a ruling of a state’s supreme court. Only the latter provides a definitive interpretation of the state’s constitution. And certainly in terms of persuasive force beyond a state’s boundaries, a supreme court opinion would carry more weight. Thus, my expectation would be that the plaintiff and those who seek to permanently end Florida’s adoption ban would prefer that the case is appealed. While some might prefer the case continue, this is not the position of Gill. And frankly, that stands to reason. There is more to lose than to win in going forward.
I’m not sure where the ultimate decision lies, and here perhaps we return to politics again. The current attorney general, Bill McCollum, was a candidate for governor in the Republican primary this year, though an unsuccessful one. McCollum supports the Florida adoption ban. Were the decision whether to appeal his, I’m not sure which way his support would cut, but all in all, I would not be shocked to see the case appealed.
Finally, I wonder about what would happen to adoptions that are completed by lesbian and gay people now (while the administrators will permit them) if the Florida Supreme Court eventually upholds the law. My initial assumption is that they’d have to be allowed to stand, but I really hope this question turns out to be purely hypothetical.