David Frum at National Review Online, in the course of his latest piece (Dec. 9) arguing for a constitutional ban on same-sex marriage, invokes — and badly misdescribes the facts of — the Miller-Jenkins custody case, discussed in this space Aug. 15.
Here’s how “federalism” on the marriage question really “works”: Two Vermont women, Lisa and Janet, entered a civil union. One became pregnant. The relationship ended. The mother and child moved out of state to Virginia – a state that does not recognize civil unions. The non-custodial woman sued for visitation rights in Virginia and lost. So she sued in Vermont and on November 20 won a custody order from a Vermont court. If the birth mother ignores the order, Vermont will hold her in contempt — and will then demand that Virginia enforce the contempt ruling.
What’s wrong with this account? Well, to begin with, it omits all mention of the crucial earlier stages of the proceedings, in which the two women submitted the dissolution of their civil union to a Vermont court which took jurisdiction of the controversy and last summer, in a court order, approved a separation agreement giving Janet visitation rights with respect to the then two-year-old girl. Instead, Frum’s description makes it sound as if Janet were the one who was dissatisfied with the results of original proceedings in Virginia and tried to reopen them in Vermont — exactly the reverse of the actual situation. (It’s not clear where he gets the idea that she “sued for visitation rights in Virginia and lost”.) This background has been widely covered in press accounts of the case (see, for example, this Aug. 14 Richmond Times-Dispatch account).
These facts are at the core of the controversy since the case presents at its base the legal question: can a party dissatisfied with a custody outcome litigated in one state ignore a resulting court order while reopening proceedings in a more favorable state? Both the federal government and Virginia itself have passed statutes aimed at preventing such attempts to relitigate custody in a second state against the opponent’s will. Lisa’s attorneys will argue and have argued that those are inapplicable in this case, but Frum’s account makes it sound as if it’s Janet who’s trying to get around the force of such laws.
Many of Frum’s other assertions in the piece — such as that none of his adversaries care in the least about federalism except as a tactical matter — are open to question as well, but that’s enough for the moment. (& welcome Andrew Sullivan readers). Update Dec. 20: Frum responds. And: Noah Millman also comments.