Miller-Jenkins and the SCOTUS

Timothy Kincaid

December 9th, 2008

You have probably heard of the custody dispute between Lisa Miller and Janet Jenkins. If you need a refresher, see the timeline at the bottom of this commentary.

This week the Supreme Court of the United States refused to hear the case – for the fifth time.

I’m not an attorney, but considering that Vermont is the court of record and that Virginia now agrees, there may be few legal arguments that could be made. However, the Miller-Jenkins case is a cause célèbre for anti-gay and other conservative activists. And there are many judges, including some who have been considered for the highest court, who would see it their calling and duty to “protect the definition of parent” and deliver this good Christian woman’s poor child from the homosexual clutches of this evil lesbian.

But this court has not taken up her cause. And that does, I believe, offer us some reason for comfort.

A writ of certiorari requires the support of four judges.

Justices Clarence Thomas and Anton Scalia are two judges who have voted consistently in opposition to equality for gay citizens. When Justices John Roberts and Samuel Alito were appointed to the court, there was a level of fear within the gay community that they would join Thomas and Scalia in decisions involving gays and lesbians.

However, the denial of the writ suggests that at least one of the four is hesitant to engage in overt judicial activism on behalf of anti-gay activists.

  • December 1997 – Lisa Miller and Janet Jenkins meet at an AA meeting in Virginia. They move in together a few months later. They make commitments to each other.
  • July 1, 2000 – Vermont legalizes civil unions.
  • December 19, 2000 – Lisa and Janet travel to Vermont and enter a civil union.
  • July 2001 – Lisa Miller was inseminated with sperm from an anonymous donor. The donor was selected to have traits that matched those of Janet Jenkins.
  • April 16, 2002 – Isabella Ruth Miller Jenkins was born. Jenkins cut the umbilical cord.
  • August 2002 – Lisa, Janet, and Isabella move to Vermont.
  • 2003 – the couple tried further fertility treatments. Lisa did not become pregnant.
  • Fall 2003 – Lisa takes Isabella and leaves Janet, moving back to Virginia. Janet agrees to pay child support and to visit Isabella regularly.
  • November 23, 2003 – Lisa files in Vermont to dissolve the civil union
  • January 2004 – Janet counterclaims in Vermont for custody
  • March 2004 – Lisa hires a lesbian lawyer and waived her objection to Janet as a parent
  • 2004 – Lisa begins finding religion – specifically Baptist religion – and comes to believe that homosexuality is sin and that she is the sole parent of Isabella and that Janet is unrelated.
  • April 23, 2004 – Lisa faxes a letter to her lawyer saying that she did not agree that Janet was a parent to Isabella. The attorney withdrew from the case.
  • May 2004 – Lisa’s new lawyer tried to rebut the presumption that Janet was a parent. The judge refused to agree and insisted on a visitation schedule.
  • Spring 2004 – Exodus International advises Lisa to hire Liberty Counsel. Lisa makes it increasingly difficult for Janet to see Isabella. Lisa recollection of facts becomes significantly different from that of all other parties.
  • July 1, 2004 – Virginia’s anti-gay marriage prohibits the state from recognizing any same sex relationship (including contracts). Lisa’s lawyers sue in Virginia court to declare her the sole parent and to declare the legal actions in Vermont as void, illegal and unenforceable. Judge Prosser stayed unsupervised out-of-state visitation. Lisa refuses to allow Janet to see Isabella.
  • October 15, 2004 – Virginia Judge Prosser declares Lisa the sole parent and invalidates Janet’s claims entirely. Vermont Judge Cohen ruled that Prosser’s order had no legal standing.
  • Winter 2006 – Virginia Court of Appeals (three-judge panel) unanimously sides with Janet Jenkins.
  • August 2006 – Vermont Supreme Court unanimously sides with Janet Jenkins.
  • December 2008 – US Supreme Court refuses to hear the case.


December 9th, 2008


I don’t think the SCOTUS turning down this case has anything to do with pro or anti-gay feelings on the court. This is just another inter-state ugly child custody case with a small lavender twist.

There would be no way for them to look at this case without undoing decades of work trying to keep ugly custody cases in the court juristiction where the case started.

Virginia does not and cannot have juristiction in this case since it has already been before a Vermont court. Folks who are unhappy with a custody ruling have wanted to jump to another state for years and every time they get spanked down.

One loose string in this case is Virginia Judge Prosser. This judge should be removed from the courtroom for making a ruling that opened up the “fleeing from one juristiction to another to get a better ruling” can of worms.


December 9th, 2008

Rule #1 of Supreme Court commentary is you do not read anything into a denial of cert. There are a million and one reasons to deny cert, it is denied over 99% of the time, and the Court will often deny cert on a particular several times before unexpectedly granting it.


December 9th, 2008

Judge Prosser is an activist judge making up laws that don’t exist to usurp jurisdiction in a case where virginia had no authority. Prosser. Poseur.. wanker.


December 9th, 2008

I’d say there’s a bit of error in your timeline. There have been two Virginia Court of Appeals decisions. The first time it was appealed from the Virginia Supreme Court, Liberty Counsel didn’t file their appeal on time, and so the appeal wasn’t accepted by the Virginia Supreme Court or the U.S. Supreme Court.

The right wing then appealed again when it went back to the trial court, and the Virginia Court of Appeals again ruled for our side. That’s when (in 2008) the Supreme Court ruled for us — and basically only on the grounds that the major issues of the case had already been decided and the time to appeal them had lapsed.


December 9th, 2008

sorry, minor edits to previous post:

In first paragraph, it should be, “the first time it was appealed from the Virginia Court of Appeals”

In second paragraph, it should be “Virginia Supreme Court,” not “Supreme Court”


December 10th, 2008

They might not be putting the four votes together for cert because they recognize they can’t get the fifth for the verdict they want. IIRC Kennedy sank them on Lawrence v Texas.

The original suit to prevent gay marriage in Massachusetts under the Tyranny Clause was also denied cert. That will not have been for reasons of Scalia not wanting to.

Timothy Kincaid

December 10th, 2008


Ok now I’m confused. But if you give me the dates and the events I’ll update the timeline.

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