PILS Update: Florida Supreme Court Upholds Florida Bar Family Law Section Amicus Filing

Jun 4, 2009

A Message from PILS Chairman Maria Elena Abate, Esq.:

The Florida Supreme Court issued a decision today confirming that voluntary sections of the Florida Bar may take ideological positions that could be considered divisive.  The Court concluded that, because membership in such sections is voluntary, any advocacy by a Bar Section is not funded with compulsory dues.

To view the decision, click here.

News coverage on the decision from The News Service of Florida is reprinted below.




THE CAPITAL, TALLAHASSEE, June 4, 2009… The Florida Supreme Court on Thursday refused to block the Florida Bar’s Family Law Section from offering its opinion – and support – for a gay adoption case that is likely to be heard by the court in the future.

Last November, a Miami-Dade judge struck down the state law prohibiting the adoption of children by gay people. The court case involved 47-year-old Martin Gill, who hoped to adopt two young brothers he had cared for as foster children. The judge ruled that there was no rational reason to say that a gay person could provide foster care, but not adopt a child.

When the Family Law section of the Florida Bar got involved in the appeal and filed an amicus brief supporting gay adoption, the conservative family values interest group Liberty Counsel filed suit to try and block the Bar from offering its support. The counsel argued that the Bar violated its own rules that say it should not be involved in anything that is likely to be a divisive issue for members.

On Thursday, a 5-2 majority of the state Supreme Court rejected the Liberty Counsel’s request for an injunction, saying the Bar can weigh in on the case.

Mathew Staver, the attorney representing the Liberty Counsel, said that he will be reviewing the decision and will make a decision within the next month on whether he will appeal to the U.S. Supreme Court.

“I think it’s incredible that the Florida Supreme Court will not require the Florida Bar to follow its own rules,” Staver said. “If you can’t trust the Florida Bar to abide by its own rules, then who can you trust?”

Justice Barbara Pariente, in the majority opinion, wrote that the court – which technically oversees the Bar – agrees that the Florida Bar’s decision regarding the brief is “entitled to deference.”

“We also conclude that the Court will not interfere with or micromanage the activities of the Bar’s sections, or the approval of those activities by the Bar, unless the Bar’s actions regarding the scope of the activities of its voluntary sections are clearly outside the Bar’s authority,” she wrote.

Pariente was joined in the opinion by Chief Justice Peggy Quince, Justice Fred Lewis, Justice Jorge Labarga and Justice James Perry. Justices Charles Canady and Ricky Polston dissented.

In his dissent, Polston wrote that the court had a duty to supervise the Bar, and that it was improper for the Bar to weigh in on the issue.

“The Bar has consistently recognized the divisive nature of homosexual adoption in the past,” he wrote.

Barry Richard, an attorney representing the Bar, said if the court had ruled in favor of Liberty Counsel, it would have denied the Bar section a forum to speak out and that would have been inconsistent with previous rulings.

“Over the years, they’ve taken the position that sections are voluntary and they can take ideological positions that the Bar otherwise couldn’t,” Richard said. “And if they said they couldn’t, that would have been a significant retrenchment from where they were.”



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