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Court asked to stop family law section's gay adoption amicus: bar says allowing a section to file an amicus does not constitute a formal endorsement of the position.

Saying it must defend lawyers' First Amendment rights, Liberty Counsel has filed a petition with the Florida Supreme Court to stop The Florida Bar's Family Law Section from filing an amicus brief in support of a trial judge's ruling declaring Florida's gay adoption ban unconstitutional.

"The First Amendment demands that The Florida Bar remain neutral on matters that do not relate to the regulation of attorneys. The Bar cannot force attorneys and judges to pay mandatory dues and then position itself as an adversary against them on controversial ideological issues. Florida attorneys want peace, not war, but The Florida Bar has given us no choice, and we will vigorously defend our liberty under the First Amendment," Mathew Staver, founder of Liberty Counsel and dean of Liberty University School of Law in Lynchburg, Virginia, said in a prepared statement.

Liberty Counsel describes itself as a nonprofit public interest law firm with a mission of "restoring the culture one case at a time by advancing religious freedom, the sanctity of human life, and the traditional family."

The Petition for Injunctive Relief Pendente Lite, Prospective Injunctive Relief and/or other Extraordinary Relief in Case No. 09-363, was filed February 27 against The Florida Bar Board of Governors, Bar President Jay White, and Bar Executive Director John F. Harkness, Jr.

Barry Richard, outside counsel for The Florida Bar, said the primary issue is that membership in the Family Law Section is entirely voluntary and no one has to join and pay its $55 annual dues.

"The Florida Supreme Court has recognized in the past that sections can engage in political ideology that the Bar cannot," Richard said.

The Board of Governors, Richard said, did not endorse and took no action on behalf of the entire Florida Bar, when it voted not to stand in the way of the Family Law Section filing an amicus brief in the case that will be written by a volunteer, Cynthia Greene, a former Family Law Section chair.

On January 30, the Board of Governors voted unanimously (with one recusal) to allow the Family Law Section to file an amicus brief supporting 11th Circuit Judge Cindy Lederman's November 25, 2008, decision to declare F.S. [section]63.042(3) unconstitutional and to allow homosexual foster parents to adopt two brothers they had nurtured for four years.

"The Board of Governors has woven a web that has entangled itself, the 86,000-plus members of The Florida Bar, and even the judiciary in a controversy that only five years ago the board agreed was too divisive to warrant legislative action," Staver and Mary McAlister argue in the petition.

In the discussion before voting, the Board of Governors made a clear distinction between allowing the amicus brief to go forward in this specific case involving the constitutional rights of two foster children to have a permanent family--versus what the Family Law Section unsuccessfully asked for in December 2004 and April 2005.

In the earlier attempts, the Family Law Section wanted to lobby to repeal the anti-gay adoption law that sets Florida apart in the country, and, secondly, narrowing its request to lobby that some homosexual foster parents should be allowed to adopt.

Both times in the past, the Board of Governors voted against the section's lobbying requests because it would cause deep philosophical and emotional divisions among a significant portion of the Bar's membership.

When voting on the current amicus brief issue, Richard said, the Board of Governors took the "default position" on a section's decision to write an amicus brief that does not require its approval and does not constitute a formal endorsement of the section's position.

"[The plaintiffs] are looking at what the board did backwards. The board just followed procedures and did nothing to stop them," Richard said.

"If the Bar were to take action, then it would be involving itself in an ideological issue."

The first procedure, he said, was to determine whether the subject area fell within the Family Law Section's jurisdiction and area of expertise.

Then, the Board of Governors determined either that the subject is outside of its permitted area of participation by the Supreme Court or if it's an area that does not conflict with the Board of Governors.

The Family Law Section used voluntary section dues money, not mandatory annual dues collected from Florida Bar members, to debate the issue at its meetings, Richard said.

But the petition argues that Florida Bar Resources--collected from all Florida Lawyers--were used.

"Most tellingly, the Bar uses mandatory dues to produce The Florida Bar News," the petition argues, detailing excerpts from the February 15 story about the Board of Governors' January 30 discussion and vote.

Richard responded: "The Bar News reports on a lot of stuff. That doesn't mean the Bar has sanctioned it."

But Liberty Counsel calls the Bar's stance "a distinction without a constitutional difference."

"The general public will not discern the difference between the Family Law Section sponsoring a brief with the state bar's blessing and the state bar sponsoring a brief. Instead, they will understand that The Florida Bar, of which all of us are members, is supporting invalidation of a law that has wide public support," Staver, McAlister, Anita Staver, David Corry, Rena Lindevaldsen, and Horatio Mihet wrote in a February 9 letter to Harkness and White.

"This action by The Florida Bar is completely out of step with the member attorneys it represents and with the vast majority of Floridians," they wrote, noting that on November 4, 2008, voters passed the Florida Marriage Protection Amendment (Amendment 2) with 62.5 percent of the vote.

"Implicit in the passage of this amendment is the affirmation of the traditional family unit comprised of a mother and a father. This same core value is encompassed in the Florida law that prohibits adoption by those actively engaged in homosexual activity."

Plaintiffs argue the Board of Governors' "January 30, 2009, action does not fall within the parameters set by Keller, Schwarz, and Frankel and must be enjoined as violative of petitoners' free speech rights."

In Keller, they point out, "The United States Supreme Court has established that integrated bars, such as The Florida Bar, cannot use dues received from its members to fund ideological and political activities that are not germane to the goals of regulating the legal profession and improving the quality of legal services."

In Schwarz, the Florida Supreme Court established standards for spending Bar resources on legislative activity to "avoid, to the extent possible, those issues which carry the potential of deep philosophical or emotional division among the membership of the Bar."

And in Frankel, the Florida Supreme Court noted the Bar carries the burden of proof in establishing the propriety of its lobbying activities.

"Your concerns are appreciated, but I assure you that The Florida Bar Board of Governors was sensitive to the First Amendment implications of its actions," Bar President Jay White wrote in a February 19 response to Liberty Counsel's Mathew Staver.

"Florida Bar policies relating to political and ideological advocacy by its various sections--when clearly distinguishing themselves from this unified bar and if separately supported by voluntary funds in such activities - are considered consistent with the dictates of Keller v. State Bar of California and Florida Supreme Court guidance.

"The Florida Bar's amicus activities stem from this organization's authority to provide information and advice to the courts and other branches of government on legal matters....

"I understand your sentiments regarding past actions of prior governing boards concerning the advocacy of homosexual adoption. However, last month's vote was the product of a different board, on a new day, and beyond matters of influencing public policy in the legislative arena. The Board of Governors gave particular deference to the fact that this is now a legal question, in a court of law, where substantive commentary by lawyers should be registered by those who are among the most authoritative on this issue," White wrote.

The Bar, White wrote, "has no intentions of rescinding its January 30 vote regarding this amicus brief."

Liberty Counsel noted it, too, will file a brief in the Third District Court of Appeal: in support of the 1977 law banning homosexual adoption.

Jan Pudlow

Senior Editor
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Author:Pudlow, Jan
Publication:Florida Bar News
Date:Mar 15, 2009
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