Sunday, August 06, 2006

Vermont Ruling Conflicts with Prior Virginia Decision

What to do, what to do?

A lesbian couple split after one of the partners conceived a child through artificial insemination from an anonymous donor. Virginia courts ruled the biological mother had exclusive rights to the child; now Vermont has weighed in.

In an article published by the Chicago-Tribune, the Vermont Supreme Court ruled on Friday that the child, who is now 4, has two mothers with equal rights.

The court rejected a host of arguments from Isabella's biological mother, Lisa Miller, that her former lesbian partner, Janet Jenkins, should be denied parental rights.

The decision conflicts with one from a court in Virginia, where live[s]. A lawyer for Miller predicted that the U.S. Supreme Court would eventually resolve the dispute.

Both Virginia and Vermont claim jurisdiction.

You see, the couple lived in Virginia, entered into a civil union in Vermont, remained in Virginia where the child was born, moved to Vermont, remained in Vermont until the couple split and then the biological mother and child moved back to Virginia.

In October 2004, a judge in Winchester, Va., granted sole custody of Isabella to Miller.

"The Vermont ruling illustrates that same-sex marriage or civil unions will inevitably clash with other states," said Mathew Staver, chairman of Liberty Counsel, a public interest law firm that represents Miller. "This case will have to be resolved at the United States Supreme Court."

Now there are two clashing court rulings from two different jurisdictions, a classical case that will have to be decided by federal court.

The article notes that in a recent Indiana Supreme Court case, unmarried couples are allowed "to adopt children through a joint petition giving both partners equal custody."

One can clearly see how any federal court ruling will affect a myriad of cases, not just for lesbians and gays. This brings to mind the November ballot question in Virginia that would amend the constitution and strip away the rights of all unmarried citizens.

With a smidgen of judicial, well, judgment, there's no reason this has to go to U.S. courts at all. In fact, Jennifer Levi, the GLAD lawyer who won this case in Vermont thinks that the Virginia appeals court will accept the Vermont decision. After all, rather than push this to extremes, the Virginia court awaited the Vermont ruling.

In the AP story, Levi was quoted as, "So I think it's really premature to address where this will be resolved. I'm very optimistic that the Virginia Court of Appeals will rule consistent with the Vermont Supreme Court."

Rather than pushing a domestic issue like this into federal court, both V states should be finishing up final rulings on this.

Despite the current Administration's efforts to destroy states' comity, state courts do like to show respect for each other. I still blame Clinton for the DOMA that encourages states to spit on same-sex marriage and civil unions.

We're kind of lonely on this issue here in Massachusetts. We'll keep the signal fire burning.
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