What harm is there in redefining marriage to include same-sex partnerships? It’s a reasonable question. One might begin to answer by looking at the ongoing Miller-Jenkins v. Miller-Jenkins case, in which a woman may see her biological child taken from her home and placed in the custody of her former lesbian lover.
The protagonists in this heartrending conflict were profiled in last week’s Washington Post Magazine. Virginians Lisa Miller and Janet Jenkins traveled to Vermont in late 2000 to enter into a civil union. The following year, Miller was artificially inseminated “with sperm from an anonymous man the two women knew only as donor No. 2309.” On April 16, 2002, baby Isabella was born, and the three relocated to a small Vermont town about 15 miles east of the New York border.
Yet they did not live happily ever after. While much of what happened next remains in dispute, a few facts are clear. The couple separated. Miller returned to Virginia with Isabella, began attending an evangelical church, and renounced homosexuality. Jenkins remained in Vermont. At first the parting was amicable but it soon degenerated into a two-state legal struggle to decide whether Isabella in fact has two mommies.
Miller asked a Vermont family court to terminate the civil union. Jenkins filed a counterclaim seeking custody of the child with mere visitation rights for the biological mother. “Had [Miller] waited a few more months before filing to dissolve her civil union,” the Washington Post Magazine reported, “Isabella would have been a legal resident of Virginia; the state of Vermont might have had little to say over her future.”
It wasn’t Miller’s only mistake. The lawyer she hired to argue her case turned out to be Deborah Lashman, one of Vermont’s leading gay-rights activists. Miller wanted to contest that Jenkins was a parent of the child, but Lashman waived her right to do so. Conservative activists stepped in to find Miller a new lawyer to undo the damage.
Attorneys from Liberty Counsel, a conservative Christian nonprofit, opened up another front in Virginia, which had just declared out-of-state civil unions “void in all respects.” A circuit court sided with Miller; a three-judge panel of the Virginia court of appeals ruled in Jenkins’s favor. Unless the latter decision is reversed on appeal, any order issued by the Vermont courts will be enforceable in Virginia — and custody of 4-year-old Isabella could be transferred away from her biological mother.
Jenkins hopes this outcome comes quickly, so she can dissolve her old civil union with Miller and enter into a new one. “I have a great life,” she told the Washington Post. “The only thing missing is my daughter, Isabella.”
Cases like this are common enough in traditional marriages. Relationships sour. Couples split up. They engage in protracted, ugly child custody fights. Even in this unusual version of an all too familiar story, both sides have cogent arguments at their disposal. Why, for example, did Miller initially accept child-support payments from Jenkins if she disputed her ex-lover’s standing as a legal parent?
But a new definition of marriage that does not consider childrearing very important is especially likely to subordinate children’s interests to adult desires. When a woman with a troubled family history enters into a relationship with another woman and conceives a child with a stranger’s sperm, potential difficulties are easy to foresee. Yet an increasing number of states want to rewrite the basic assumptions of the family to accommodate such arrangements.
“Anyone who buys detergent should know that ‘new’ does not always equal ‘improved,’” David Frum warned a dozen years ago. “Men ejaculating into little cups and selling lives to women who will attempt to raise them fatherlessly — that’s new, all right, but no improvement.”
The cultural drift that made all this imaginable started long before same-sex marriage and civil unions became controversial issues. “At one [recent] debate, I asked the audience if we could at least agree, all other things being equal, that it is best for a child to have both a mom and a dad when possible,” Liberty Counsel attorney Rena Lindevaldsen told me. “I couldn’t get agreement even on that much.”
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