Virginia Upholds Parental Rights of Non-Biological Lesbian Mother

In a case closely watched by religious and gay rights groups, the Virginia Supreme Court has ruled that the state must enforce parental visitation rights of a mother’s former lesbian partner under a Vermont court order. The victory for Janet Jenkins over Lisa Miller is what many religious groups had feared that the full faith and credit clause and other provisions would required other states to recognize the marital and parental status of gay couples from states like Vermont and soon California.

What is not interesting about the case is that Virginia has a state constitutional amendment prohibiting same-sex union. I have long taken the view that the courts would likely embrace a public policy exception to the full faith and credit clause in such cases. Article IV, Section I of the Constitution states “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” However, courts have long debated the existence of an exception for issues of great public debate.

The Virginia case was complicated by the fact that the appellate deadline was missed by Lisa Miller. The denial of her appeal was based in large part on the fact that she did not raise any new issues that were not covered by the invalid appeal.

The personal case is also complicated. Jenkins and Miller received a civil union in Vermont in 2000. In 2002, Miller gave birth to Isabella. After the birth, however, Miller renounced homosexuality and moved back to Virginia. She is represented by Mathew Staver, founder of Liberty Counsel and dean of the law school at the late Rev. Jerry Falwell’s Liberty University.

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