Custody Case Highlights Artificiality of Same Sex Marriage

Michael Medved
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Posted: Jan 06, 2010 12:01 AM
Custody Case Highlights Artificiality of Same Sex Marriage

A nasty custody case in Virginia highlights the way that the relentless push for same sex marriage threatens our core understanding of the nature of family. The desperate determination to honor gay rights undermines such fundamental values as the importance of motherhood, and the states obligation to consider the welfare of the child.

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The basic facts of the current dispute remain uncontested. In the late 1990s, Lisa Miller and Janet Jenkins began a lesbian relationship, and they secured a civil union in the state of Vermont in 2000. Shortly thereafter, Miller became pregnant through artificial insemination from a sperm donor, with the understanding that she and Jenkins would raise the resulting child as a couple. After the babys first birthday, however, Miller renounced homosexuality, became an Evangelical Christian and decided to raise her child, Isabella, on her own. The two women sought legal dissolution of their relationship in the Vermont Family Court and the judge, William D. Cohen, awarded custody to the birth mother but provided extensive visitation rights for the mothers rejected girlfriend. For several years, Miller resisted sharing her daughter with Jenkins, employing various legal strategies to challenge the court order. At one point, the Supreme Court of the United States declined to hear the case.

Finally, on November 20, 2009, Judge Cohen found Miller in contempt of court for continuing to deny access to her daughter, now seven years old. He also changed his decision regarding custody now awarding custody to Jenkins, who bore no biological connection to the child and played no significant role in her upbringing after the babys first year. Courts in both Virginia and Vermont backed Jenkins claims on the babyclaims that received potent free legal backing from both the ACLU and the gay-rights-oriented Lamda Legal Foundation. The governmental authorities ordered Lisa Miller to hand over little Isabella to Janet Jenkins, a woman the child hardly knew, on January 1st, at 1 PM, at the home of Ms. Jenkins parents in Falls Church, Virginia. Ms. Miller failed to appear as directed, and is presumed to have become a fugitive with her daughter.

Regardless of the final outcome of this sad story, the case demonstrates the way that the militant gay rights agenda trumps long-standing patterns and preferences in family law.

First, and most obviously, family courts have always tilted toward the mother in custody disputes as many broken-hearted ex-husbands have discovered to their pain and regret. Judges and child welfare agencies give the mother principal custody except in cases of blatant abuse, neglect or irresponsibility. No one accuses Lisa Miller of such mistreatment, and yet she is stripped of responsibility for her seven- year-old daughter by an ex-lover with no biological connection to the childa woman who is surely less deserving of parental rights than a birth-father would have been. Activists in the Fathers Rights movement can testify to the one-sided dismissal of their claims, and wonder at the far more favorable treatment in this case for a non-related female lover.

This raises another startling aspect of the governments role in this conflict: the rejection of biological connection as an overriding and significant factor. In many well-publicized cases, courts have awarded special consideration to birth mothers (and even birth fathers) in cases of surrogacy and adoption, even allowing these genetic connections to shatter loving homes and invalidate explicit contracts. Americans will also remember the wrenching case of Elian Gonzalez, who was taken from a nurturing household of his relatives in Florida and brought back to Cuba at the demand of a biological father he hadnt seen in years. Its hard to think of a non-related, heterosexual adoptive parent in a high profile battle who has been awarded custody precedence over a birth parent the way the courts have given precedence to this non-related homosexual partner.

Finally, the judges in both Vermont and Virginia relied upon legalisms and selective precedent and paid scant attention to the welfare of the child. Yes, Lisa Miller harmed her own standing when she defied court orders to provide access to her daughter, and she perhaps fatally undermined her case in her initial request for dissolution of her civil union when she requested child support from her former partner. As the argument developed, however, she more and more clearly wanted only to raise her child free of interference from an old lover with whom she shared no further relationship.

Aside from the relevant legal arguments, theres an inescapable underlying question concerning the whole dispute: in what sense would a seven year old girl benefit from regular parental contact with an unrelated female now bitterly estranged from her mother? Its easy to understand why Janet Jenkins might desire a parental role with the girl she remembered as an infant, but how would this intrusion into a growing childs life help the youngsters sense of stability or security? Given Lisa Millers decisive rejection of homosexuality, should the government insist that a seven-year-old must be fully apprised of her mothers lesbian past? Is the societal goal of instilling tolerance and acceptance in a little girl more important than a mothers right to raise a daughter according to her own lights?

With Ms. Miller and little Isabella living, at least for the time being, as apparent fugitives from the court system, its easy to feel sorry for the girl, whos been victimized by her mothers bad decisions, the stubborn selfishness of her mothers former lover, and the short-sighted officiousness of the courts. But even if the authorities apprehend the run-away mother-daughter pair, it would hardly constitute a joyous development for the seven-year-old to be taken away from the only mom she can remember and placed under the control of an implacable stranger (and her gay advocate lawyers).

The worst part of the case is the creation of a new position of entitlement awarded to Janet Jenkins on the basis of gay sex alone. If shed been a non-romantic room-mate of the little girls mother, or even a dear old auntie who helped with the infants care, its hard to imagine the courts would have granted her custody years later. But the illogical insistence that gay partnerships must be treated as identical to procreative heterosexual unions gave Jenkins special claims to parenthood based more on the nature of her relationship to the mother than to the history of her connection to the child. In any event, the synthetic, unnatural nature of those claims based almost entirely on the securing of civil union status from the Vermont bureaucracy some nine years ago means that Jenkins parental standing rests on an artificial governmental construct, on forms and signatures, rather than any sort of organic or experiential connection.

One of the most common arguments by gay marriage advocates involves the insistence that the expansion of matrimonial rights will merely enlarge marital opportunities, with no impact at all on existing couples or the institution itself. The Miller-Jenkins case shows the absurdity of this contention and demonstrates the way that redefining marriage inevitably changes parenthood as well, turning the most fundamental, natural, elemental human relationship of mother-and-child into an officially sanctioned fiction altogether dependent on governmental fiat.