The Vermont Supreme Court has issued a ruling that sets up a conflict with Virginia on the issue of gay rights. The ruling was triggered by a bitter custody dispute between two women who split up after they had a child while they were civil union partners.
The Vermont Supreme Court ruling on Friday sets up a stand-off between Vermont's gay-friendly marriage and adoption laws versus Virginia's laws that prohibit marriage and adoption to same-sex couples. At issue, is legal custody of the girl born to Lisa Miller-Jenkins by artificial insemination six years ago. The child came after Lisa and her partner Janet Miller-Jenkins obtained a civil union in Vermont.
Six months later, they dissolved the civil union and the question was: who gets the child? The Vermont family court ruled that Lisa would keep the child and Janet would have visitation. Lisa, the biological mother, then moved to Virginia where same-sex marriage is prohibited by law and declared she had become heterosexual. Based on Virginia's gay marriage ban, the Virginia family court ruled that Lisa was the only legal parent and because Janet was not recognized as having any parental or adoptive rights in Virginia, Lisa did not have to abide by the Vermont family court order.
Janet appealed to the Vermont Supreme Court, arguing that Vermont's family court should have jurisdiction since the child was conceived and born while they were civil union partners under Vermont Law. Friday in a 5-0 unanimous opinion, the justices ruled in Janet's favor finding that Vermont's family court would have jurisdiction.
"And so what Vermont's saying is, hey, this is Vermont recognizes civil unions the same as we recognize marriages and therefore our court has jurisdiction over these issues," explained Professor Cheryl Hanna, of the Vermont Law School. Hanna says the issue may ultimately go to the U.S. Supreme Court and there will be a lot at stake.
"It may be the case in which the United States Supreme Court tests the constitutionality of what's called The Defense Of Marriage Act. The Defense Of Marriage Act was passed by Congress and says that a state like Virginia does not have any obligation to recognize a marriage that takes place in Vermont, if it's a marriage between a same-sex couple or in this case a civil union between a same-sex couple," she explained.
Hanna says the recent history of U.S. Supreme Court rulings bodes well for the gay-rights community, so Janet may prevail.
"In the past years, the court has sided with gay rights activists any time these issues have come up before the court with Kennedy always being the swing vote," she explained.
Lawyers for Lisa, the biological mother in Virginia, also expect the case will ultimately have to be decided by the U.S. Supreme Court. They are not giving up with this Vermont decision.
Meanwhile, Janet's lawyers are hopeful that the Virginia Courts will abide by the Vermont Supreme Court ruling.
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