Same-Sex Marriage, Child Custody, and the Miller Perspective

This week in my Conflict of Laws course we arrived at the subject of interstate disputes over judgments in child custody cases.  This led us to the case(s) of Miller v. Jenkins (or, as our book listed it, Janet Miller-Jenkins v. Lisa Miller-Jenkins).  A good summary of the case from the New York Times is available here, but here is my attempt to lay out the facts in as brief a manner as I can.

The Miller v. Jenkins series of cases arose from a string of complicated facts.  Lisa Miller and Janet Jenkins entered into a civil union in Vermont in 2000.  Lisa gave birth through artificial insemination during this union, but eventually filed a petition for dissolution of the union in 2003.  The Vermont court released a temporary order granting Lisa custody of the child, Isabella, and giving Janet visitation rights.

This is where things got chaotic.

Lisa went to Virginia and sought a court order that she be declared the sole parent of Isabella.  Before the Virginia court released its order, the Vermont court issued a ruling reaffirming its jurisdiction.  Nevertheless, the Virginia court declared that Lisa was Isabella's sole parent and that Janet had no rights of visitation.  The Vermont court then held Lisa in contempt for failing to allow Janet to visit Isabella in violation of the court's custody order.

Litigation ensued, and the courts ultimately decided that the Virginia trial court's decision had violated the Parental Kidnapping Prevention Act (28 U.S.C. 1738A).  Despite this outcome, Lisa continued to refuse Janet's visitation requests and was again held in contempt for violating the Vermont trial court's order.  Each time she was held in contempt, Lisa would appeal the ruling.  Eventually, the Vermont court ordered that Janet be given sole custody of Isabella.

Lisa took Isabella and, with the aid of various religious organizations, fled to Ontario.  From there they flew to El Salvador and ultimately to Nicaragua.  Timothy Miller (no relation to Lisa) was a missionary who flew with Lisa and Isabella to Nicaragua and was later arrested for aiding and abetting kidnapping.  Kenneth Miller, a pastor (also no relation to Lisa), was also involved in the scheme.  He helped purchase clothing to disguise Lisa and Isabella as Mennonites, secured their travel plans, and was ultimately arrested and convicted for aiding and abetting the kidnapping, and sentenced to 27 months in prison.

Lisa and Isabella have not yet been located.

The casebook that presented this case told the story of the case's aftermath in the notes, and noted that it seemed strange that conservative religious organizations helped Lisa as much as they did.  Lisa, after all, had been in a same sex union, which Kenneth and Timothy Miller would have considered an afront to their beliefs.

News coverage of the story provides some insight into the full state of affairs.  Additionally, the pastors and organizations involved in Lisa's flight have blogged extensively on their points of view, and this provides a dimension of the story that seemed lacking in the cases, casebook, and media coverage.  Because this angle of the story investigates Lisa Miller's circumstances (and involves an oddly large number of people named "Miller"), I call it the "Miller Perspective."

To give some credit to media coverage of the story, most of the articles I have read mention that Lisa petitioned for a dissolution of her civil union because she became a born-again Christian and denounced lesbianism as a sinful addiction.  This provides some insight into why some conservative, religious organizations were willing to help her.

One of the most interesting sources I found for the Miller Perspective is this blog.  It is apparently founded by the Pilgrim Christian Fellowship, Kenneth Miller's church. The blog contains a play-by-play of Kenneth Miller's prosecution and conviction.  It also contains a number of posts by Kenneth Miller himself where he discusses the challenges he has faced and the opinions he has about the case.

In particular, Miller writes on his thoughts about Lisa Miller:

It became even more obvious to me that this was a woman who had met Jesus of Nazareth and had powerfully experienced His mercy and grace. I believe Lisa is a living testimony to the Power of Jesus, the Power that can set us free from the burden of sin, even the sins of a sexual nature that all of us face in this decadent age.
. . .

It was apparent that Lisa’s understanding of marriage, family and parenthood was orthodox. Her views are consistent with the Scriptures, the historical teachings of the Church, the social customs of the human race since the beginning of time, and with the beliefs of the vast majority of peoples around the world right now. 

Since Lisa’s personal beliefs on these matters are rooted in the Scriptures, it was obvious that for her, these are issues of faith and conscience, and deeply held religious beliefs. 

Lisa is painfully aware that in the United States, with less than 5% of the world’s population, there is a movement to radically redefine and re-engineer marriage, family and parenthood, the basic social elements God designed into the human race. She is well aware that this movement operates through all the agencies of American culture, the media, education, the entertainment world, modern psychology, the law and courts, and even through some churches. Lisa knows from personal experience that this movement is coordinated, relentless, and determined to cause everyone to conform to its ideology, and that it will attempt to marginalize and penalize those who do not conform. 

In order to stay true to her faith and conscience, Lisa chose to flee with her daughter instead of conforming. She is still fleeing. She has been charged with kidnapping her own biological daughter and according to recent court testimony is still being hunted by the United States Government—“bouncing around the barrios of Nicaragua,” as some news reports have put it, trying to stay ahead of the authorities.

Here, I think, is a part of the story that is missing from the casebook and largely from the media accounts of the case as well.  While media coverage of the case notes that Lisa denounced her homosexuality and connected to these organizations in doing so, her alliance with these churches -- and the extent of the aid they gave her, still seemed disproportionate.

In Kenneth Miller's post, he notes his high opinion of Lisa Miller and characterizes her situation as overcoming the adversity of sin, but also frames her challenge as part of a greater struggle against the redefinition of the family.  In combating the "movement to radically redefine and re-engineer marriage," Kenneth Miller and others who worked with him were not only helping somebody in need, but struggling against what they have characterized as a powerful enemy.  I've found similar language supporting this combat election on other socially conservative sites who aren't as closely related to this case as Kenneth Miller (see here, for example).

Laws are in place to prevent non-custodial parents from kidnapping their children, but, as this case reveals, the reach of the law can only go so far against those who are determined to defy it.  At the same time, I think that the Miller Perspective reveals that there are people with troubling motives who would seek to harass gay parents, and the law should be structured to avoid this harassment as much as is possible.  

Parts of the federal code remain that allow courts to facilitate this harassment, like 28 U.S.C. 1738C (a portion of DOMA that has not yet been struck down), which allows courts to refuse to give effect to judgments that respect same-sex relationships and rights and claims arising from these relationships.  As long as laws like this remain, people acting from the Miller Perspective will not always need to go to illegal lengths to cause disproportionate pain and stress for gay individuals.