actually it may be VERY relevant because homoactivists use the “born that way” meme in courts.
In fact the FL Bar, OVER THE OBJECTIONS OF MEMBERS, recently ENDORSED a group of homosexual activists in the name of the Bar, submitting an amicus brief in favor of allowing homosexuals access to children in adoption.
Court hears arguments on gay adoption amicus brief
By Jan Pudlow
Senior Editor
How far should the Florida Supreme Court go in micromanaging day-to-day decisions of The Florida Bar Board of Governors involving sections, those voluntary subgroups that take bolder positions than the entire Bar?
That question from Justice Fred Lewis set the stage at oral arguments April 22 in Liberty Counsel v. The Florida Bar Board of Governors (case no. SC09-363), involving whether the Family Law Section should be allowed to file an amicus brief in support of a trial judge’s ruling declaring Florida’s gay adoption ban unconstitutional.
“Certainly, this court does not want to or should not get involved in micromanaging the Bar. On the other hand, this court is the administrative head of the Bar,” answered Mathew Staver, founder of Liberty Counsel, which 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.”
As administrative head of the Bar, the high court should grant injunctive relief, Staver urged, and prohibit the section from filing an amicus brief supporting 11th Circuit Judge Cindy Lederman’s November 25, 2008, decision to declare F.S. §63.042(3) unconstitutional and to allow a homosexual foster parent to adopt two brothers he had nurtured for four years.
When the Board of Governors voted on January 30 to allow the Family Law Section to file the amicus brief, Staver argued, the Bar violated its own standing policy and “impermissibly injected itself into a political, controversial issue that has the potential to cause deep division among substantial members of a segment of the Bar.”
The Board of Governors knew it was a divisive issue, Staver argued, because in 2004 and 2005 the board had denied allowing the Family Law Section to both lobby to repeal the anti-gay adoption law that sets Florida apart in the country, and to lobby that some homosexual foster parents should be allowed to adopt.
In both instances, Staver noted, the Board of Governors cited Rule 8.10-A(3), codification of the Schwarz decision, where 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.”
Barry Richard, outside counsel for the Bar, countered: “I believe this court should not become involved in telling the sections what they can or cannot lobby on. The Board of Governors can never violate anything as long as it doesn’t obstruct the section’s ability to do something. . . .
“I call to the court’s attention the fact that this was a unanimous decision of this board. There was one recusal, but there was not a single dissent from this, which strongly suggests there was not any divisive issue here.”
Dominating the questioning was Justice Barbara Pariente, who noted the Keller, Schwarz, and Frankel decisions cited by Staver did not involve activities by a voluntary section, and in Frankel, the justices said: “Please, let the sections do these things” that the whole Bar cannot.
“In addition, never has this court become involved in whether or not a section of the Bar should or should not be able to file in a case pending in an appellate court,” Pariente said.
Staver responded: “Even though this is the first time this court has addressed the issue of the sections, in this case, the way the sections are set up, they are essentially extensions of the Bar.”
Justice Charles Canady said: “If we were to agree with you that the Bar erred in approving this because it is inconsistent with [standing board policy, 8.10-A(3)], how would you deal with the argument that the Bar can waive those policies anyway?”
Canady noted that bylaw 2.9-2 provides that any standing board policy may be waived by a two-thirds vote of those present at any regular meeting of the Board of Governors.
Staver answered that waiver cannot be done implicitly. Further, because this case involving the gay adoption “will no doubt come before this court,” Staver said it puts judges who are members of the Family Law Section “in essential conflict or an uneasy position.”
But Richard maintained that membership in the Family Law Section is entirely voluntary and that the Florida Supreme Court has recognized that sections can engage in political ideology that the Bar cannot.
The Board of Governors, he 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.
Rather, Richard said, to comply with the cautionary language in Schwarz, the Bar took the “default position” by finding the issue “was within the section’s subject matter jurisdiction, was not unduly divisive, and was outside the board’s purview. Then it takes no position, and the section is permitted to act under those circumstances.”
Pariente commented: “If this was in the ’50s, school integration would have carried deep philosophical or emotional division, and the Bar, the way they set up their standing policies, would have stifled the sections from being able to get involved in controversial issues.”
Richard replied: “I can tell this court that the Bar is really not suggesting to this court that it should not take a position, if it desires to do so, on something being divisive. The Bar is comfortable with that.
“If this court wants to impose a rule, which in fact the Bar will probably adopt anyway after this, that says, ‘You must take a separate vote whether or not it is divisive,’ the Bar is completely comfortable with that.
“All I’m suggesting to this court is that it should not place restrictions on the ability of the voluntary sections to take positions, because the effect of that would be to turn the Bar into a sterile organization and to drive those people in the sections out into a myriad of independent organizations that would be bad for all of us.”
In addressing a comment from Justice Lewis — that there’s really not much distinction between sections and the Bar, and a section files its brief with “the imprimatur of the Bar”— Richard said it would “open a real can of worms” involving First Amendment rights.
“Because how far do we go? When the president of The Florida Bar makes a statement, it is not reported in the press as being an individual statement; it is reported as a statement of the president of the Bar. The same is true of a member of the board. Are we next going to tell those officers that they cannot personally speak out because individuals in the public may associate it as a position of the Bar? . . .
“I suggest that the answer to that is a recurring theme that we see in United States Supreme Court decisions on the First Amendment, which is that we cannot apply the First Amendment based upon the assumption that members of the public are not capable of thinking for themselves.
“People understand that when an organization takes a position, it is not necessarily the belief of every member of the organization.
“People understand that when the president of the Bar says something, or a member of the board says something, or a section of the Bar says something, that is not necessarily the position of every other section of the Bar itself or every member of the Bar. . . .
“This court has established a wonderful balance that enables the Bar to include, within its umbrella, voluntary groups, self-funded, that can speak out on issues that those groups decide are important.
“But at the same time, this court has said that that aspect of the Bar that is compulsory, which you must belong to, which you must support financially, is restrained, by the way, more than most of the unified bars in the United States are,” Richard continued.
“The Florida Bar is first when it comes to the narrowness of the restraints on what the Bar itself can do. That balance has served us well since 1949, or at least the mid-’50s when the sections were created. I would urge the court to retain it.”
I’m all for turning their arguments against them.
I believe someone once said that despite the ‘gay is gay and it will never change’ militant outlook that they really don’t want a gene found if it in fact exists for a whole host of reasons.