It's been a busy spring for The Virginia Supreme Court. In March, it ruled unconstitutional HB 3202, last year's controversial transportation law which included unelected regional transportation authorities with taxing power. This Thursday, April 17, it will hear another landmark constitutional case. It concerns the rights of a parent who wishes to keep sole custody of a child to which she gave birth. The other person involved is a woman who not biologically connected to the toddler. She is not legally connected either, at least according to Virginia law. This is a case of parental rights, and activist courts subverting both a state's sovereignty and the federal protections of the state's laws and constitution. Here's the story: Lisa Miller and her lesbian partner, Janet Jenkins, lived together in Virginia in the late 1990s. They traveled to Vermont on December 19, 2000, in order to enter into a civil union. They returned to Virginia where they continued to reside until April 2002, when Lisa gave birth to a girl, Isabella, whose father is an anonymous sperm donor. They moved to Vermont in August 2002, where they lived until they broke up in September 2003. Lisa then converted to Christianity and decided to leave the homosexual lifestyle. She took Isabella with her back to Virginia, leaving Janet in Vermont. Lisa then filed in a Vermont court for dissolution of the civil union and for custody of Isabella.
The case worked its way through both Vermont and Virginia courts, pitting Vermont's "civil unions" against Virginia's ban on such arrangements. The Virginia Court of Appeals, in November 2006, ruled that Vermont courts had jurisdiction based on the federal Parental Kidnapping Prevention Act. PKPA was written to prevent a parent who loses a custody battle in one state from taking a child to another state in an attempt to gain a more favorable ruling. According to the United States Supreme Court, PKPA grants jurisdiction to the first state that exercises jurisdiction, which was Vermont. However, in this case, PKPA should not have been the ruling statute.
Lisa's attorney argued that the federal Defense of Marriage Act preempts PKPA and returns to each state the authority to determine what constitutes marriage and parental rights. Virginia has made this public policy decision time and again with a ban on same sex marriage, a ban on civil unions and, most recently, an amendment to the Virginia constitution defining marriage. Because Virginia gives no legal recognition to civil unions, and thus does not recognize the relationship between Lisa and Janet, the PKPA should not apply.
The Court of Appeals avoided conflict by dismissing DOMA's relevance in this case. According to the court, it is not about one state recognizing another state's civil unions, but "whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding [Isabella's] custody and visitation." For the court to use the PKPA as binding law in cases where Virginia does not legally recognize the relationship between the two parties is legal precedent that attempts to trump the will of the people of Virginia and flies in the face of the purpose of the federal DOMA.
Should the Virginia Supreme Court fail to reverse the Court of Appeals, the latter's decision will stand as the last word on visitation rights. That decision yielded jurisdiction to the Vermont courts, which then ruled that Lisa's former partner could have visitation rights. The court-forced visitation began last August and has continued since then, requiring five-year-old Isabella to visit a woman she has not seen since the age of two.
This hearing before Virginia Supreme Court may be the last hope for Isabella. Because of its significance we, and a pro-family partner, Concerned Women of America, are asking Virginians to make Thursday a Day of Prayer for Isabella.
Toward that end, Thursday at 8 a.m., we and CWA are holding a prayer vigil directly across the street from the Supreme Court Building at the Old Bell Tower near the corner of Bank and 9th Streets in Capitol Square. Please join us. Then, at 10 a.m., we will co-host a press conference with CWA to address the merits of the case.