An appeals court upheld a lower court ruling that the state’s ban on gay adoption is unconstitutional.

The Florida Supreme Court will ultimately rule on the adoption ban making Florida the only state that bans gays from adopting children. The state does allow gay couples and individuals to foster children but does not allow them to adopt them. That’s at odds with Florida’s policy on “permanence” in which children are supposed to be moved as little as possible from one household to another.

A Miami-Dade County judge ruled the gay adoption ban unconstitutional in 2008 in the case of Martin Gill and his male partner, who adopted two foster children they have cared for since 2004.

Gov. Charlie Crist, whose Department of Children and Families appealed the adoption and the ruling, said recently he was considering dropping the appeal. But gay rights activists and the ACLU, which represents Gill, as well as DCF Secretary George Sheldon want the Supreme Court to make a final decision on the law to settle uncertainty for future adoptions.

Gov. Charlie Crist should not drop a lawsuit that could result in a final decision about whether Florida’s 30-year-old ban on gay adoption is constitutional, Department of Children and Families Secretary George Sheldon said.

Sheldon, a Democrat appointed by then-Republican Crist in 2008, is head of the agency that challenged a Miami judge’s ruling that Florida’s law barring gay couples from adopting children is unconstitutional. Crist said yesterday he is reviewing whether to drop the lawsuit after releasing a gay-friendly platform in his quest as an independent candidate for U.S. Senate.

“Everyone, no matter what side of this issue they’re on, believes there ought to be some finality to a decision, whether that’s a legislative decision or a judicial decision,” said Sheldon, a former state lawmaker who voted against the ban on gay adoption.

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Gov. Charlie Crist said he has had an “appropriate evolution” regarding gay rights and is considering dropping the state’s lawsuit challenging a gay couple’s adoption of two foster children.

“I think we need to review that. My comments really reflect that it’s better to have more of the judicial branch involved in this process. I think that most who follow the judiciary recognize that what’s in the ‘best interest of the child’ is what should be paramount in these kinds of decisions. That’s what I believe and I think that’s what will be the best for them,” Crist, the independent candidate in the three-way race for U.S. Senate, told reporters.

Crist’s campaign this week released a position paper backing a swath of gay rights – including the right to adopt. Florida has one of the country’s most strident anti-gay adoption laws.

The Department of Children and Families, one of Crist’s agencies, is challenging a judge’s ruling that the law is unconstitutional. DCF appealed the adoption of his two foster children granted to Martin Gill. An appeals court decision in the lawsuit, fought by Attorney General Bill McCollum’s office on behalf of DCF, could come any time.

Why not just drop the case? One reporter pushed.

“I’m going to review it before I would make that call,” he insisted.

Crist the candidate has considerably softened his stance towards gay rights in the four years since he ran for governor, when he opposed gay marriage.

Why the change, he was asked.

“Not a whole lot has changed to be candid. I also said (back in 2006) that I’m a live-and-let-live kind of guy. And I am. As I said this morning, I think that the older you get, the less judgmental you become,” Crist said. “Maybe I was more rigid earlier. But I don’t feel that way. And I know who’s supposed to be judging people and it’s not me.”

Senate President Jeff Atwater allowed Democrats to talk about repealing the state’s gay adoption ban during the afternoon session today.

Sen. Nan Rich has tried and failed for the past four years to have her bills that would do away with Florida’s 33-year-old prohibition against gay couples or individuals adopting.

But today, Atwater allowed Sen. Charlie Justice to offer an amendment on a bill that would prohibit adoption agencies from discriminating against gun owners. Justice’s amendment proposed a similar prohibition for discrimination based on sexual orientation.

“Whether a person owns a gun or not has no bearing on his or her ability to be a loving parent,” Rich, D-Weston, said.

The ban on gay adoption is a “far graver inequality,” she said, and is “a law grounded on fear and ignorance rather than in sound public policy.”

Gay couples are allowed to be foster parents but are barred from permanently adopting the children. More than 3,000 Florida kids are waiting to be adopted and about 25,000 of them live in foster care.

A state appeals court is currently considering whether the law is unconstitutional, as some judges have recently ruled. The 1st District Court of Appeals could rule at any time on a case in which a judge allowed Martin Gill, a gay Miami-Dade County man, to adopt two foster children who have been in his care for years. The state is appealing the adoptions.

“I know this amendment is not going to pass today and that Florida’s discriminatory adoption ban will not fall today,” Rich concluded. ”It’s been four year since there’s been any debate on this issue in any official Senate proceeding in any Senate committee and it’s been 33 years since this issue has been debated on the floor of this chamber. It’s about time we did something about that.”

Justice, D-St. Petersburg, withdrew the amendment before a vote could be taken.

Rep. Scott Randolph, D-Orlando, offered a similar amendment on the House floor this afternoon. He also withdrew the measure before it could be voted on.

Department of Children and Families officials insist that the foster kids living with Martin Gill for nearly five years aren’t going anywhere.

But the agency’s own lawyers told a judge that the two boys adopted by Gill should be “made available for adoption” elsewhere, something Gill can’t legally do because he’s gay.

Despite DCF’s insistence that the Gill family won’t be affected by its appeal of the adoption, the agency has made a test case out of the gay man’s adoption and intends to take the case to the Florida Supreme Court to decide once and for all if Florida’s ban on gay adoption is unconstitutional.

DCF has paid Attorney General Bill McCollum’s office nearly $400,000 so far on the case, and it has yet to make its way to the high court.

Read more about the disconnect between DCF and its own high-paid lawyers here.