I know we’re supposed to give prominent Religious Right figure Chuck Colson a pass because of his compelling life story and the work he’s done with prisoners, but jeepers, does he ever give a misleading account of the Miller-Jenkins case (Vermont-Virginia lesbian custody battle), discussed earlier in this space Aug. 15, 2004, Dec. 16, 2004, Aug. 26, 2006, and Nov. 29, 2006.

Colson begins his column (“Legal Fictions”, syndicated/TownHall, Feb. 28) by announcing that Miller-Jenkins presents “one of the most important legal battles of our time”. In fact, as I noted back in 2004, the case presents the somewhat less epochal issue: can a party dissatisfied with a visitation/custody outcome litigated in one state ignore a resulting court order in order to pursue proceedings in what is expected to be a more favorable state?

Colson cites a recent in-depth story about the case in the Washington Post Magazine (April Witt, “About Isabella”, Feb. 2). Somehow, however, he omits to mention a feature of the case that figured centrally in that account, namely the outstanding court order that Lisa Miller, biological and custodial mom of Isabella, has been defying for years now. Since Colson does not mention that court order, he naturally does not inform readers that it arose after Miller voluntarily submitted to the jurisdiction of a Vermont court dissolving her civil union with Janet Jenkins. Nor do his readers learn that Miller was happy to pocket child support payments from Jenkins, before eventually deciding to blow off the court order, or try to, by cutting off Jenkins’ regular visitations with Isabella.

Nor does Colson describe the current posture of the case. If he did, he would have to acknowledge that both the Vermont Supreme Court and a Virginia appeals panel have ruled unanimously against Miller, who nonetheless continues to defy the court order. There is no indication that Miller’s team of Religious Right litigators is uncomfortable with this posture of hers.

Colson frames the story for dramatic effect as one in which Jenkins, appearing from out of the past, demands custody of Isabella — although the dispute in fact arose over visitation, and although the likely outcome of the case (assuming Miller relents rather than pursuing her contempt of court all the way into a jail cell) is simply going to be the restoration of Jenkins’ visitation rights. Pricelessly, Colson dismisses Jenkins’ legal rights as those of “a woman [Isabella] barely remembers”, without inquiring as to how Miller managed to engineer this state of affairs.

And, no surprise, Colson also fails to mention the relevant federal statute, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, which as Eugene Volokh points out “requires courts [in other states] to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage”.

Probably the most enduring significance of the Miller-Jenkins case will be as an indication of the willingness of many on the Religious Right, even the lawyers among them, to applaud and defend the defiance of court orders when those orders inconvenience the godly or uphold the legal rights of the ungodly. I wonder whether Colson gives a thought to this when he decries, in the column, “our reckless pursuit of getting whatever we want at all costs”.

I also wonder whether the proposition that it’s just fine to violate laws and court orders when one feels impelled by a higher cause — I believe some social conservatives like to label this point of view as antinomian — is a message that Colson is accustomed to spread when he addresses groups of prisoners in the course of his public work. If so, we can only hope the prisoners don’t take the message to heart (& welcome Ed Brayton, MarriageDebate.com, Eugene Volokh readers).

Filed under: family law, Miller-Jenkins case, wrong right