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Florida Bar Board Approves Family Law Section Request to File Amicus Brief

Deborah O. Day, Psy.D - Tuesday, July 29, 2014

The Family Law Section of The Florida Bar, representing 4,107 members who voluntarily have joined the section, has received approval of its request to join in an amicus brief in the appeal of a Hillsborough County/13th Judicial Circuit court ruling in Shaw v. Shaw involving an attempted divorce of a same-sex couple who legally married in Massachusetts, but now reside in Florida. 

In the Shaw case, the trial judge would not enter a divorce decree for the couple because by statute and constitutional provision, Florida does not recognize same-sex marriages. The dismissal of the case has been appealed to the Second District Court of Appeal (Case No. 2D14-2384).

The Florida Bar, a mandatory organization with 98,922 members, will not and cannot take a position in this appeal. Amicus brief filings by a voluntary Florida Bar section, though requiring approval by the Bar’s governing board, are advanced solely with the voluntary dues and separate resources of those subgroups and clearly advocated in the section's name only.

“As a result of this ruling, same-sex couples validly married in other states, but living in Florida, do not have access to our courts for divorce or for the orderly resolution of their legal rights and obligations,” said Gregory W. Coleman, President of The Florida Bar. “Therefore, the Bar’s Board of Governors, while not weighing in on this issue for the entire bar and not commenting on any related social issues, did agree to allow the Family Law Section to do so on behalf of its voluntary members in order to address the issue of access to justice,” he said.

Coleman added that, as officers of the court and stewards of the justice system, lawyers are charged with protecting rights within the framework of the law. He said the Family Law Section’s request to file a brief in this case is based on promoting and protecting the rights of Floridians to have access to our state's court system and to rely upon the legal rights and obligations of civil marriage.

"This action should be understood as a matter of family and matrimonial lawyers seeking finality and certainty in their area of practice, regarding certain basic legal issues, and to assure fairness of treatment and equality of access to our state courts for every Floridian," Coleman said.

The section’s amicus brief will address access to the courts and rely upon the equal protection clauses of both the Florida and United States constitutions, U.S. Supreme Court case law, other state Supreme Court decisions, and fundamental rights. At present, the brief is due to be filed on July 25.

Amicus or "friend of the court" briefs are filed by groups or individuals who are not actual parties in a lawsuit, but who petition an appellate court to comment in the proceedings because of their great interest in the subject matter or to call a higher court's attention to legal issues overlooked at trial, or which the court should additionally consider in its review on appeal.

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