Florida Bar practice area groups should be allowed to take positions in court that the mandatory membership organization cannot take, the Bar told the state Supreme Court in a case revolving around the constitutionality of gay adoptions.

The Bar filed a brief late Monday in support of a decision by its board of governors to allow the family law section to file a friend-of-the-court appellate brief against the 1977 state law banning adoptions by gays.

The 3rd District Court of Appeal in Miami is considering whether gay foster father Frank Martin Gill should be allowed to adopt two boys he has been caring for since 2004.

Conservative legal organization Liberty Counsel asked the Supreme Court last month to keep the section from filing the amicus brief and has until Monday to file its response.

Liberty Counsel attorney Anita Staver and Melbourne lawyer Scott C. Dixon, who is affiliated with the group, argued their First Amendment right was violated when the Bar’s board of governors authorized the brief.

All attorneys in Florida are required to be Bar members, and the Bar is the legal profession’s regulatory body.

The Bar responded that just because its membership is mandatory, it should not preclude its voluntary sections from taking positions in controversial issues.

“Membership in and payment of dues to a section is voluntary, and any such advocacy by a section is entirely self-funded,” the Bar said. The Bar noted the amicus brief would be written on a pro bono basis.

The Bar’s outside counsel, Barry Richard, a Greenberg Traurig shareholder in Tallahassee, argued Bar sections, which primarily focus on practice areas, provide valuable insight in a variety of situations.

If the Florida Supreme Court sided with Liberty Counsel, Richard said it would “deprive the Legislature and perhaps the courts of useful opinions.” He added Florida lawyers would have to seek a different forum to take positions in court cases.

Liberty Counsel took offense with the board of governors’ vote in January to authorize filing of the amicus brief supporting a judge’s ruling that the ban on gay adoptions is unconstitutional. Liberty Counsel is one of four entities planning to file 3rd DCA briefs opposing the November ruling by Miami-Dade Circuit Judge Cindy Lederman.

The law’s supporters include the conservative-leaning American College of Pediatricians, the Christian Coalition of South Florida and Fort Lauderdale attorney Perry Hodges, a member of the family law section.

Hodges’ brief filed in the 3rd DCA said he is “being compelled against his conscience to be positively identified with and in support of Judge Lederman’s decision” even though he disagrees. A motion has been filed to allow another 116 attorneys to join his motion.

Mathew Staver, founder and chairman of Maitland-based Liberty Counsel, argued his organization’s opposition to Lederman’s ruling would put it at odds with the Bar if the section were allowed to file a brief.

“You don’t want the Bar that also regulates you and has disciplinary authority over you to take sides on issues where lawyers differ,” he said in an interview. “The Bar’s purpose is to regulate lawyers, not to take political positions on debated issues. It creates an adversarial relationship with the membership that it’s governing.”

Staver said the issue is broader than just this case.

“It is very important that The Florida Bar remain neutral on this and other political and controversial issues,” he said.

If the Bar were allowed to take such positions, it could create conflict of interest problems for judges, who also are Bar members, Liberty Counsel contended. The group also contended such an action would be deeply divisive and violate the First Amendment rights of members with opposing views.

The Florida Bar’s 16-page response refutes all of Liberty Counsel’s arguments.

The Bar cited precedent saying petitioners’ First Amendment rights would be violated if they were forced to contribute to the financing of activities they oppose, but Bar membership dues would not be used on the family law section brief.

“The parties agree that the issue of homosexual adoption is outside the permissible scope of Bar advocacy, and accordingly the board took no action to deny the family law section’s request,” the Bar wrote. “The fact that some board members were pleased with the result because they may agree with the section position is irrelevant to the First Amendment question.”

As for whether something is divisive, Richard argued the best group to determine if something is divisive to the membership is the representative body elected by the membership, in this case the board of governors.

“I could see if there was an outpouring, if the court received filings of hundreds of lawyers who disagreed,” he said. “There’s certainly no reason for the court to substitute its judgment for the judgment of a board elected by all of its membership when all we’re seeing is a couple of attorneys with opposition to it.”

Bar sections need board approval before filing briefs.

Unless the Supreme Court intervenes, the section would be able to file its amicus brief after the foster family files. Gill has an extension until mid-May.

Gill’s attorney, Robert Rosenwald of the American Civil Liberties Union in Miami, said that it is in the best interest of the boys to be adopted by his client.

“The two little boys at the heart of this case went from a hopeless past to a bright future in the past four years because of Martin Gill,” Rosenwald said. “It is therefore unsurprising that the family law section of The Florida Bar would write an amicus brief advocating for that outcome.”

Casen Name: Liberty Counsel, a Florida corporation on behalf of its employee and affiliate members of The Florida Bar; Anita L. Staver, Scott C. Dixon v. The Florida Bar Board of Governors; John G. White III, Florida Bar president; John F. Harkness, Jr., executive director of The Florida Bar

Casen no.: SC09-363

Court:n Florida Supreme Court
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n Allegations: The Florida Bar board of governors’ vote to allow the family law section to file a friend-of-the-court brief against the state ban on gay adoptions violates the petitioners’ First Amendment rights.

 Details:n Liberty Counsel argues the Bar as a mandatory membership organization cannot allow a section to take a position contrary to the belief of members. The Bar contends the section is a voluntary group with its own dues to pay for the brief.

Jordana Mishory can be reached at (954) 468-2616.