The custody battle between Janet Jenkins and Lisa Miller is about Jenkins’ right to visitation with their daughter, Isabella. But as with the issue of civil unions and gay marriage, it is also about the relation of church and state.
The case has achieved a higher profile than most custody battles because it involves two women and allegations of international parental kidnapping. Now a Virginia man who is alleged to have helped Lisa Miller flee to Nicaragua with young Isabella is on trial in federal court in Burlington.
Miller and Jenkins were Fair Haven residents when they were joined in civil union. Miller became the biological mother of Isabella, but as with heterosexual couples who conceive without the biological participation of one of the partners, Jenkins was also a parent according to the law.
By joining in a legal union, Miller assumed certain legal responsibilities. One of those was to adhere to the law in case the union should end, which it did. But Miller did not wish only to end her relationship with Jenkins. She also wanted to renounce the legal basis for the relationship and the legal obligations that attached to it. She had renounced homosexuality, and she no longer accepted the legitimacy of her civil union or the laws that granted Jenkins parental rights.
Her new religious beliefs made this course of action seem right to her. So when the civil union was dissolved and a judge in Rutland granted visitation rights to Jenkins, Miller refused to comply. She had moved to Virginia, but Virginia’s courts refused to negate the ruling of the Rutland judge. Thereafter, Miller is thought to have found her way to Nicaragua with the help of an Amish Mennonite church from Virginia, and now the church’s leader, Kenneth Miller, is on trial in Burlington.
The case turns on the fact that under the Constitution we do not have the right to set aside a law of our choosing on the basis of our religious beliefs. The law establishing civil unions, and later gay marriage, ran counter to the religious beliefs of many people, which is why it aroused stout opposition. But it is the law in Vermont. Moral opposition remains, as it does on other social issues, such as abortion, capital punishment and birth control. But in a pluralistic democracy founded on principles of religious and intellectual freedom, the state must constantly guard against the encroachment of any sect seeking to impose its views on the broader public. In a pluralistic democracy, religious conservatives have the right not to participate in gay marriage, but in Vermont and five other states (and the District of Columbia), they do not have the right to prevent others from doing so.
Alas, marriage does not always succeed, and in the event of its dissolution the laws apply to both partners.
Clashes over the religion of a partner sometimes create problems in marriage, whatever the gender of the partners, but religious belief does not allow one partner’s wishes to trump the rights of the other in the legal arena.
Legislatures can change marriage laws, but citizens cannot change their minds about which laws they are willing to obey. In the practice of civil disobedience, citizens intentionally break the law in order to highlight the law’s injustice, and they willingly accept the consequences. That is not what Lisa Miller appears to be doing.
The Miller-Jenkins case is playing out at a time when opposition to same-sex marriage is eroding around the nation. Public opinion polls suggest a majority of Americans support gay marriage, and several states may vote to grant full marriage equality this year. Opinion has swayed to the extent that Republicans, rather than using the issue as a wedge, are shying away from it.
Meanwhile, the personal drama of two parents and their allies, struggling with their diverging ideas of right and wrong, continues to unfold in the courtroom. It turns out that same-sex couples have a right to the same dose of heartache that heterosexual couples have been allowed to experience through the generations.
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