Super Lawyers - Florida 2011

supported by The Florida Bar’s Family
Law Section, chaired at the time by Scott
Rubin with Fogel Rubin & Fogel, in the
form of an amicus brief.

In the end, the 3rd District Court of Appeal struck down Florida’s ban on adoptions by gays and lesbians, a law that stretched back to the late 1970s—the days of Anita Bryant, beauty queen, orange juice spokeswoman and anti-gay activist.

But this story begins with Martin Gill and
is familiar to any Floridian with a newspaper,
TV or Internet access: Just before Christmas
2004, social workers brought two ragged
and neglected little boys to Gill’s home.

The older one, who was 4 at the time, was wearing an adult-size T-shirt and sneakers four sizes too small, according to the court papers. The little one, only 4 months old, had an ear infection. The older boy didn’t speak for a month; his main concern was feeding and changing his baby brother.

Take the kids in, the social workers pleaded.
It’ll be temporary. Just a few weeks.
Scherker and Bass teamed up to challenge the state’s gay adoption ban.

An experienced and well-regarded foster parent, Gill agreed—and quickly learned that the boys’ situation was even worse than he thought. The older boy had never seen a book, couldn’t count, couldn’t identify colors, couldn’t even hold a pencil. He hoarded food at dinner.

The arrangement turned out to be far
from temporary.

By 2006, the Department of Children and Families (DCF) terminated the parental rights of the boys’ biological parents, making them eligible for adoption. Gill wanted them. He had fostered more than a half-dozen children before and was always heartbroken when he had to give them up. To him, these were his children; he was their Papi. But the state of Florida, though it considered him an exceptional foster parent, would not let him adopt because of his sexual orientation.

At the time, Florida was the only state to categorically deny gays the right to adopt. They could be foster parents. They could be guardians. And anybody else could adopt—single people, people with disabilities, those with HIV or AIDS, people with criminal records.

Gill contacted the ACLU and sued the state, arguing that he was being treated unequally. His case was handled by Leslie Cooper, a senior staff attorney with the ACLU Lesbian Gay Bisexual & Transgender Project in New York.

The boys had Bass and Scherker on their side, and the ACLU represented Gill. The lawyers were under no illusions about what they were up against. The tension occasionally kept them up at night. They also knew that if they won at trial—hardly a foregone conclusion—the state would appeal.

“It is actually common for GT appellate lawyers to become involved at the trial level in major cases, and to advise our trial partners in a wide range of cases,” Scherker says. What could have been a case of too many lawyers spoiling the soup became cooperating teams of legal advocates pursuing a common goal.

The ACLU lawyers were happy to have Greenberg Traurig on board. “We were thrilled that the children’s counsel, who agreed that the ban worked against the interests of their young clients, advocated along with us to have the law declared unconstitutional,” Cooper says.