Miami lawyers Hilarie Bass, Elliot Scherker and Scott Rubin help overthrow a decades-old ban on gay adoption
Published in 2011 Florida Super Lawyers magazine
By G.K. Sharman on June 10, 2011
It started with a simple phone call on an ordinary day in 2007. Judge Cindy Lederman was on the line for Hilarie Bass: Would she take on some pro bono work?
Bass isn’t someone people reach out to when they have a slam-dunk case. A partner at the Miami office of Greenberg Traurig, she focuses on commercial litigation, class action defense, securities fraud and other multifaceted cases. She’s also past national chair of the firm’s 600-member litigation department. The more difficult and tangled the case, the more she excels at it.
This one was complex, all right, but it involved no corporations, no financial misdeeds, no trail of money. What Lederman wanted to know was this: Would Bass go toe-to-toe with the state attorney general and a state agency on a case challenging the constitutionality of a Florida law? Would she represent two little boys in the most controversial adoption case in Florida history—a pair of brothers taken in by foster parent Martin Gill, who was not allowed to adopt them because he is gay?
Bass couldn’t wait to get started. Corporate work puts food on the table, but advocacy is what nourishes her soul.
“I’ve always seen the law as one of the best vehicles for the development of social justice,” says Bass, who worked as a soap opera actress between college and law school and is well-known in South Florida for her idealism. “This was clearly an unjust law, and I always believed it should be overturned. When the opportunity was offered, I was glad to be at the front of the line.”
At Bass’ request, colleague Elliot Scherker, the gravelly-voiced chair of the firm’s Miami appellate group, joined the case.
Scherker, also a partner in the firm, loves the intellectual challenge of doing appeals. In his 36 years of practice, he’s handled more than 2,000 of them in both state and federal courts. Many have been for major corporations, including Anheuser-Busch, Walt Disney Co., Wachovia Bank and Lorillard Tobacco Co. One thing appeals work has taught him, he notes, is to be succinct.
“I can tell you my whole life story in 10 minutes,” he quips. Soft-spoken in person, Scherker is known for being able to turn up the drama in court on behalf of clients.
For three years, their team worked in tandem with attorneys from the national American Civil Liberties Union. They were supported by The Florida Bar’s Family Law Section, chaired at the time by Scott Rubin with Fogel Rubin & Fogel, in the form of an amicus brief.
In the end, the 3rd District Court of Appeal struck down Florida’s ban on adoptions by gays and lesbians, a law that stretched back to the late 1970s—the days of Anita Bryant, beauty queen, orange juice spokeswoman and anti-gay activist.
But this story begins with Martin Gill and is familiar to any Floridian with a newspaper, TV or Internet access: Just before Christmas 2004, social workers brought two ragged and neglected little boys to Gill’s home. The older one, who was 4 at the time, was wearing an adult-size T-shirt and sneakers four sizes too small, according to the court papers. The little one, only 4 months old, had an ear infection. The older boy didn’t speak for a month; his main concern was feeding and changing his baby brother.
Take the kids in, the social workers pleaded. It’ll be temporary. Just a few weeks.
An experienced and well-regarded foster parent, Gill agreed—and quickly learned that the boys’ situation was even worse than he thought. The older boy had never seen a book, couldn’t count, couldn’t identify colors, couldn’t even hold a pencil. He hoarded food at dinner.
The arrangement turned out to be far from temporary.
By 2006, the Department of Children and Families (DCF) terminated the parental rights of the boys’ biological parents, making them eligible for adoption. Gill wanted them. He had fostered more than a half-dozen children before and was always heartbroken when he had to give them up. To him, these were his children; he was their Papi. But the state of Florida, though it considered him an exceptional foster parent, would not let him adopt because of his sexual orientation.
At the time, Florida was the only state to categorically deny gays the right to adopt. They could be foster parents. They could be guardians. And anybody else could adopt—single people, people with disabilities, those with HIV or AIDS, people with criminal records.
Gill contacted the ACLU and sued the state, arguing that he was being treated unequally. His case was handled by Leslie Cooper, a senior staff attorney with the ACLU Lesbian Gay Bisexual & Transgender Project in New York.
The boys had Bass and Scherker on their side, and the ACLU represented Gill. The lawyers were under no illusions about what they were up against. The tension occasionally kept them up at night. They also knew that if they won at trial—hardly a foregone conclusion—the state would appeal.
“It is actually common for GT appellate lawyers to become involved at the trial level in major cases, and to advise our trial partners in a wide range of cases,” Scherker says. What could have been a case of too many lawyers spoiling the soup became cooperating teams of legal advocates pursuing a common goal.
The ACLU lawyers were happy to have Greenberg Traurig on board. “We were thrilled that the children’s counsel, who agreed that the ban worked against the interests of their young clients, advocated along with us to have the law declared unconstitutional,” Cooper says.
The state took a hard line in defense of the law. Bass and Scherker’s strategy was, comparatively, deceptively simple: Bass’ job was to create an accurate, watertight trial record that, if successful, Scherker could then uphold on appeal.
“Hilarie gave me a nice present wrapped up to take to the 3rd District Court of Appeal,” Scherker says.
They went to court in October 2008, where Bass had two goals: first, force the DCF to admit that the children were in a good situation and it was in their best interest to leave them there. Secondly, undermine the credibility of the state’s witnesses.
Then-State Attorney General Bill McCollum put forward only two experts. Both said homosexuals were mentally unstable and could not be good parents. On cross-examination, Bass got one of them to agree that Gill and his partner were good parents, and that adoptions should be decided on a case-by-case basis. The other expert based his opinions on religious belief.
The judge sided with Gill and the boys. The state almost immediately appealed.
Meanwhile, a few blocks away, in an office across the street from the courthouse, Rubin was keeping an eye on developments. The state bar’s Family Law Section, which he headed, wanted to see the law overturned and had previously looked at legislative remedies, but had been blocked by the bar’s board of governors. Sections of the bar need the board’s approval before they can lobby lawmakers in Tallahassee—and if the issue is deemed divisive, the board often says no.
The issue for Rubin, who has belonged to the bar’s Family Law Section since he graduated from law school in the 1980s, was helping those hurt most by the adoption ban—the children awaiting a permanent home.
“For the thousands of kids in foster care, overturning the ban is a way out of foster care and into a family,” says the tall, soft-spoken lawyer. “It broadens the pool of potential adoptive parents.”
Though the three-person office of Fogel Rubin & Fogel has also handled products liability and personal injury cases, family law makes up 98 percent of his practice.
“[Family law] is an area of the law where attorneys can really make a difference for their clients and their children,” he says. “One lawyer can literally change the law.”
With the Gill case in the courts, Rubin sought and received permission from the state bar’s board of governors to submit an amicus curiae brief, the writing of which he oversaw. It was one of more than a dozen amicus briefs submitted in support of Gill’s position.
“Appearing before the board of governors was an awe-inspiring experience,” Rubin wrote in a piece for the Family Law Section’s online newsletter. “The leaders of The Florida Bar were sitting in judgment of whether there was constitutional authority for the Family Law Section to take an amicus position supporting the best interests of children in Florida.”
Two comments from the brief were quoted in footnotes to the District Court of Appeal’s final decision. One noted that the state did not consider homosexuality a reason to restrict a biological parent’s rights or custody. The other noted that homosexuals were allowed to serve as foster parents or guardians, and that the only prohibited role was that of adoptive parent.
Rubin attended oral arguments before the appeals court, held at Florida International University College of Law to handle the overflow crowd and media. Rubin, who was acquainted with Scherker through one of his law partners, calls the appellate argument “an amazing experience. … He was really dynamic.”
Months later, Rubin got to break the news to other bar members. Shortly before a Family Law Section luncheon in Orlando, he received a text message telling him the appeals court had affirmed the lower court’s decision. He told his law partner, Terry Fogel, then texted his wife. When he told the luncheon crowd, he got a standing ovation.
Within hours of the announcement, Gov. Charlie Crist announced that the state would stop enforcing the law.
How many gay people have adopted children since then? No one knows, Bass says, because the state can no longer ask about sexual orientation.
On Jan. 19, in a courtroom in Miami, with Bass, Scherker, Rubin and Cooper in attendance, Judge Lederman made it official: Gill is the legal father of the two boys he and his partner fostered for six years. After hugs and tears and congratulations, he took his family home.
As the usually stoic Bass blinks back a tear, Scherker says, “It’s a wonderful thing to open a door that had been irrationally closed.”
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