The Florida Bar

Florida Bar News

Family Law Section to file gay adoption case amicus

Senior Editor Regular News

Family Law Section to file gay adoption case amicus

Senior Editor

Ervin Gonzalez told his fellow Florida Bar Board of Governors members: “If you frame the issue of what this is really about, we are all in favor of this request. The goal is putting children first. It’s not an endorsement of an alternative lifestyle.”

In less than a half hour, on January 30 in Tallahassee, 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. §63.042(3) unconstitutional and to allow homosexual foster parents to adopt two brothers they had nurtured for four years.

Ervin Gonzalez The Board of Governors’ action does not constitute a formal endorsement of the section’s position. Rather, it acknowledges the subject matter is within the purview of the section’s area of expertise and permits the section — composed of and funded entirely by voluntary members — to go forward.

No Bar membership fees will be expended to advocate the brief put forth by the section and the amicus will be written by a volunteer, Cynthia Greene, a former Family Law Section chair.

The issue, Gonzalez successfully argued, was that “children who are abandoned, neglected, aggrieved need this, who have no one to love them. Orphans discarded like gum on a sidewalk, where people walk over it and if it sticks to you, you get it off your shoe. Children that have no hope, whom now have individuals who want to care for them and love them and provide for them the type of family that they need so that they can be successful in the future.

“There is a statute that says because they happen to be gay, even though they have been determined by a judge to be appropriate for adoption, and though the Department of Children and Families says they are appropriate for adoption, simply because they are gay they are not allowed to adopt them — but they are allowed to be foster parents until those children are 18,” Gonzalez said.

“I would submit it is illegal. It violates equal protection. It violates due process. It’s against the law.”

The debate that followed was brief and passionate. Following the vote, a smiling Family Law Section Chair Scott Rubin called it a “fabulous reaction” and the section’s “first and most important accomplishment of the year.”

Scott Rubin “The Family Law Section has, as one of our missions, looking out for the children in the state of Florida. And we have been troubled by the inequality of children who have been in foster homes with heterosexual parents and can achieve their legislatively correct right of permanency, but children in homes of homosexual foster parents cannot. A courageous judge in Dade County entered a final judgment that found that law to be unconstitutional. The Family Law Section wanted to support that decision in the appellate court,” Rubin said, adding that the Appellate Law Section volunteered to assist and the Public Interest Law Section Executive Council also voted in support of the Family Law Section’s request.

On this day, the Board of Governors’ discussion and vote were markedly different than what happened in December 2004 and April 2005, when it voted against the Family Law Section’s dual requests: first, 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.

Four years ago, the Board of Governors voted 31-13 against allowing the section to lobby to repeal the state law because it would cause deep philosophical and emotional divisions among a significant portion of the Bar’s membership.

President-elect Jesse Diner spoke about the contrasts of then and now.

“I adopt everything Ervin says, and that’s 180 degrees from where I was the last time we had this debate,” Diner said.

“It’s true that the last time we were dealing with the issue of a section lobbying. This is a section that wants to file an amicus brief. This is about specific children in this case. It is about constitutionality. It is different. Even if it was not different, I agree with Ervin. I’ve thought about this a long time since that day.”

Diner said he thought about the words of the late, respected board member, Henry Latimer, who stood slowly from his chair in the earlier first debate and said, “After everything I have gone through as a black man growing up in the ’50s and ’60s, I can tell you that discrimination of any kind is wrong. And I am voting for permission to lobby.”

Diner recalled Latimer’s words about the 1954 Board of Governors calling desegregation too divisive for them to take a position.

“There is a time when you stand up and you do the right thing. And that is what we need to do now,” Diner said. “So I am proud to say that the time is now.”

David Rothman, a board member from Miami, said, “I also was in the majority the last time when a similar issue came up, and I didn’t sleep for two nights after that. There’s no question in my mind what the right thing was to do. The question was it was divisive.

“But here, it is a core issue: Is it constitutional? I don’t see how amongst lawyers that could be divisive. I am going to vote in favor of it, and I’m not going to lose any more sleep over it.”

Dennis Kainen, a board member from Miami, said the night before he was moved by U.S. 11th Circuit Court of Appeals Judge Rosemary Barkett’s speech at the Florida Supreme Court Historical Society Annual Dinner about rules and laws of the past that we should be embarrassed about now. It made him think about “almost my entire family on my mother’s side who were killed in the Holocaust,” and about the movie, Judgment at Nuremberg, where “the intelligentsia, the lawyers, and the judges were not doing the right thing. They were the leaders. And we are the leaders of the Bar,” Kainen said.

“It’s recognition that times have changed, though I think the law has always been immoral, unethical, and illegal. Now we’re simply being asked to permit the section to file an amicus to affirm a circuit judge. It’s so many steps away from lobbying the Legislature,” Kainen said.

“I think we should send a message to Floridians that we are here to uphold the law, and we are here to do the right thing.”

Bar President-elect Designate Mayanne Downs, of Orlando, said it made her cry to read Judge Lederman’s “beautifully reasoned and carefully written” 53-page final judgment that details how the boys, on December 11, 2004, were placed with the licensed foster caregiver the state child welfare officials knew was gay, because the child protective investigator believed the boys deserved a good Christmas.

“John, the elder sibling, arrived with his four-month-old brother wearing a dirty adult-sized T-shirt and sneakers four sizes too small that seemed more like flip-flops than shoes. Both children were suffering from scalp ringworm,” Judge Lederman wrote in her final judgment.

“John did not speak and had no affect. He had one concern: changing, feeding, and caring for his baby brother. It was clear from the children’s first evening at (the petitioner’s home) that the baby’s main caretaker was John, his four-year-old brother. On that December evening, John and James left a world of chronic neglect, emotional impoverishment, and deprivation to enter a new world, foreign to them, that was nurturing, safe, structured, and stimulating.”

Downs also stressed the difference between the issue of the vote on this day and those of four years ago.

“I, too, along with President-elect Diner, voted against the lobbying effort, because I was fearful of the potential for divisiveness. This, however, the advocacy sought here, is to affirm this final judgment for these children and these two foster parents. Very different,” Downs said.

When Juliet Roulhac, a board member from Miami, read the materials about the case, she said, “What impacted me the most was the incongruity of the position that gay individuals, who can become foster parents up through the age of majority of the child, but yet they cannot be permitted to be adoptive parents. I think that is certainly a farce.”

Roulhac also noted a stipulated fact in the case by DCF that “gay adults and heterosexual adults can be equally good parents.”

The Legislature, Roulhac said, “recognizes permanency in an adoptive home is a foster child’s right. To consider children are being prohibited from having the right to be adopted by appropriate and very caring individuals is completely wrong, and we should not let that go forth.”

Setting the record straight

( Editor’s Note : On February 3, the Daily Business Review ran a story that implied The Florida Bar took an official position against the state law banning homosexuals from adopting children. Below are letters to the editor that Bar President Jay White and Family Law Section Chair Scott Rubin wrote the South Florida paper to clarify the issue.)

RE: “Florida Bar to support judge who ruled against ban” by Billy Shields, February 3, 2009.

As president of The Florida Bar, I am compelled to clarify some grossly misleading and factually inaccurate information this article contains. The Florida Bar does not advocate nor endorse either supporting or overturning the state law that bans homosexuals from adopting children.

Contrary to the story, The Florida Bar is not “coming out in a big way for gay adoption” and the Board of Governors did not vote unanimously to file an amicus brief before the Third District Court of Appeal supporting the circuit judge’s ruling that declared unconstitutional the state’s ban on gay adoption.

The sole action of the Board of Governors in this matter was to allow the Family Law Section to file an amicus brief on this issue. The Family Law Section is composed entirely of voluntary members and is considered separate from The Florida Bar. This section will be preparing the amicus brief, not The Florida Bar. Further, no Florida Bar funds will be used with respect to the Family Law Section brief.

Again, I reiterate that this filing is tendered solely by the Family Law Section, supported by the separate resources of that voluntary organization and not in the name of The Florida Bar.

John G. White III

Florida Bar President

After reading “Taking a stand” published February 3, I felt that some clarification was appropriate in my position as chair of the Family Law Section. The Florida Bar’s Board of Governors voted to allow the Family Law Section to take the amicus position in support of Judge Lederman’s final judgment of adoption which found that the ban on gay adoptions violated the constitutional rights of the two foster children who were the subject of the case. A position taken by a section of The Florida Bar is different from the Bar itself taking a position. With amicus filings as well as with legislation, the full Bar can determine to advocate a position or a section of the Bar can be allowed to advocate a position.

For example, the Family Law Section each year has a legislative agenda that it promotes in Tallahassee. The Board of Governors determines whether our legislative agenda deals with subjects which are both within the section’s area of expertise and not deeply divisive among a substantial segment of the Bar’s population, but it does not endorse our specific agenda. No mandatory Bar dues are used to advocate our legislative agenda. Rather, voluntary section dues are utilized for that purpose. Similarly, no Bar dues will be used to advocate the amicus position put forth by the Family Law Section. In fact, section dues will not even be used as the brief will be written by a volunteer, Cynthia L. Greene, who is a former chair of the section.

Individual members of the Board of Governors voiced their opinions that the section’s position was the right thing to do; however, the official action of the Bar was to allow the section’s request for an amicus position.

Scott L. Rubin

Chair, Family Law Section
Fogel Rubin & Fogel
Miami