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Supremes avoid states' marriage battle for now

The United States Supreme Court has declined to review a ruling by the Supreme Court of Vermont that extended parental rights to the homosexual former civil union partner of a Virginia child's mother. The decision is opposed by the child's mother, who is now embroiled in a two-state legal battle to clear up jurisdiction.



Lisa Miller, who is now a Christian, is a Virginia resident and the biological mother of the child at the center of the case. Her daughter was born in Virginia by artificial insemination while Miller was still a party to a Vermont civil union with a homosexual former partner, Janet Jenkins. Miller and Jenkins moved to Vermont after entering into their civil union and the birth of Miller's child. Miller and her daughter returned to Virginia when Miller's relationship with Jenkins ended.

In cases involving traditional marriages, the state in which a divorce proceeding is filed has jurisdiction over custody and visitation for children produced by the marrage. But Virginia law and its state constitution do not recognize civil unions involving same-sex partners or homosexual "marriages" from other states. As such, Virginia does not recognize the Vermont court order granting Jenkins visitation. Therefore, aspects of the case are pending in both a Vermont trial court and the Virginia Supreme Court.

Mat Staver of the legal group Liberty Counsel, which represents Miller, says the U.S. Supreme Court decided not to review the ruling on parental rights and did not rule on the merits of the case. "Whenever they decide not to take a case, as in this one, they do not say why," he explains.

There are certain procedural reasons why the justices may have chosen not to get involved at this stage, Staver notes. "But at some point in the future, there's no question in my mind they will," he says.

The Liberty Counsel attorney thinks the high court's involvement is certain because of the crucial precedent that hangs in the balance for states' rights on jurisdictional issues of marriage. While Virginia law does not recognize same-sex marriages or civil unions, Vermont does.

The jurisdiction issue is key to the case, Staver contends. He says the Vermont jurisdiction ruling "is contrary not only to the longstanding principles of parental authority and rights, but also, [that] it creates a classic conflict between two states -- one, like Vermont, that has same-sex civil unions and one, like Virginia, that says it does not recognize any rights or privileges or orders arising from a same-sex civil union."