Tuesday, March 14, 2006

WorldNetDaily: Judge rules civil union invalid out-of-state

At issue in the case of Miller v. Jenkins are two women, both female homosexuals at the time, who once lived in Virginia but traveled to Vermont to obtain a "civil union." Ms. Miller later gave birth to a daughter through artificial insemination.

Then Ms. Miller found Christ, and got out of the homosexual relationship.

And now Jenkins wants "visitation rights" with respect to the child.

A Vermont court said yes, but a Virginia court said no--because Virginia has a defense-of-marriage law. Subsequently, Ms. Jenkins moved to have the Vermont trial court order "registered" in Virginia. That registration was the grounds for an appeal.

The appellate court held that the "registration" was in error because "civil unions" do not exist in Virginia.

A few words of explanation:

  1. The Parental Kidnapping Prevention Act provides that a child-custody order issued in one State is "registrable" in another State, so that the second State would have to recognize and enforce the child-custody orders given in the first State. This is to remove an incentive for one parent to snatch a child out-of-State and get a competing custody award--so long as the snatching parent remains in the other State. But, says the Virginia Court of Appeals, the fly in the buttermilk is that no court in Virginia would ever grant custody of a child to one who is not a biological nor an adoptive parent, and certainly not in a same-sex relationship--and therefore one cannot register in Virginia the sort of order, issued in another State, that no court in Virginia would even be allowed to issue.
  2. Adoption is not at issue because Ms. Jenkins did not pursue adoption. But the spectacle of same-sex couples adopting childrn is going to create more such tangles unless and until someone says, "Stop this insanity!"
The federal Defense of Marriage Act is, at present, the only thing that instructs the Virginia Court of Appeals to act as it did. But now you have two courts in two States issuing two different kinds of orders--a situation that seems bound to head to the Supreme Court of the United States for review. What the Court will do in a case like that, I cannot predict--because Justices John Roberts and Samuel J. Alito promised judicial clarity, not any particular kind of judicial result. (And not only is that as it should be, but also the Court has handed down three unanimous decisions in less than as many weeks, a possible sign that Chief Justice Roberts has actually persuaded his fellow Justices to see the law and the Constitution as clearly as he does.) I can readily imagine Chief Justice Roberts deciding either way between the two competing courts, concluding, however ruefully, that the Full Faith and Credit Clause of the US Constitution leaves him no leeway. (The alternative might be the spectacle of two people of the opposite genders being regarded as married in one State but not being regarded as married in another State.)

The alternatives will take time to enact. First prize would be a uniform definition of marriage according to the heterosexual standard. Second prize would be a clarification of the Full Faith and Credit Clause stating that no State need recognize a marriage in another State that does not meet its own standards. Would such a weakening of the FF&C clause create a bigger problem than it attempted to solve? Unhappily, CJ Roberts might not be allowed to opine on that question.

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