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.
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John
December 9th, 2008
Timothy,
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.
Pender
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.
cmh
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.
mgh
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.
mgh
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”
cd
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
mgh,
Ok now I’m confused. But if you give me the dates and the events I’ll update the timeline.
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