Oct 17, 2008  |  By: CHRIS JOHNSON  | COMMENTS     

A conservative legal group is unlikely to convince the U.S. Supreme Court to review a Virginia child visitation rights case involving lesbian parents, according to legal experts.

On the first day of its new session, the court denied Oct. 6 a petition on the case based on the ruling from the Vermont Supreme Court, where the case was first heard. But the court must still decide to accept or reject a case petition based on the Virginia Supreme Court’s ruling.

The plaintiff in the case, Lisa Miller, is suing to keep her former partner, Janet Jenkins, from having visitation rights with the child they had in 2002 while they were in a civil union together in Vermont.
Miller, the biological mother of the now 6-year-old child, dissolved her civil union with Jenkins in 2003, announced she no longer identified as a lesbian and moved to Virginia to raise the child without Jenkins.

But the Vermont Supreme Court ruled that Jenkins had visitation rights to the child and held Miller in contempt when she refused to comply with the ruling.

Miller asked the Virginia Supreme Court to take up the case, but justices in June unanimously ruled that the court could not weigh in on a child visitation case that another state court had already decided.

The Liberty Counsel, which is representing Miller, filed two U.S. Supreme Court petitions based on the Vermont and Virginia decisions.

The petition based on the Virginia ruling was filed in September. Tessa Sturgill, a Liberty Counsel spokesperson, said her organization expects justices to decide in December whether to take up the case.

The petition says that the U.S. Supreme Court should take the case because requiring Virginia to recognize the Vermont court’s visitation rights ruling conflicts with the Defense of Marriage Act.
But Jon Davidson, legal director for Lambda Legal, said the U.S. Supreme Court has turned down four petitions to hear the Miller case and is unlikely to take up the case based on the recent petition.

He said the Liberty Counsel also “missed their deadline” to have the U.S. Supreme Court hear the case based on the issue presented in the petition.

“I also think that the court is not itching to get a lesbian or gay custody case in front of them right now,” he said. “They don’t hear very many custody cases to begin with and I just don’t think they will see it as a pressing issue.”

Davidson said the Miller court rulings do not conflict with DOMA because the decisions are based on the Parental Kidnapping Prevention Act. The law prevents parents from circumventing family court decisions by taking children to another state and obtaining an order to their liking.

Mat Staver, a Liberty Counsel attorney, said he did not know whether the U.S. Supreme Court would take up the Miller case, but regardless of the justices’ decision, his organization would initiate another lawsuit for the case through the Virginia state courts based on Virginia’s Constitution, which prohibits same-sex marriage and civil unions there.

Besides the Miller case, experts are predicting that the U.S. Supreme Court will not hear any gay cases this session.

Nan Hunter, a law professor at Georgetown University who is gay, said that in this session, it “doesn’t seem likely that there will be an explicitly gay-related case in the Supreme Court.”

The U.S. Supreme Court on Oct. 6 denied a petition to hear Parker v. Hurley, another case involving gay issues.

Plaintiffs in that case are parents with children in a public school in Lexington, Mass., who argued that school curriculum could not include books with gay themes or characters because it violated freedom of religion.

But the 1st Circuit U.S. Court of Appeals decided in favor of the school and ruled that parents who don’t like books on a school reading list need to take recourse through local political processes and not the courts.

The U.S. Supreme Court could take up Cook v. Gates, a case handled by the Servicemembers Legal Defense Network that is challenging “Don’t Ask, Don’t Tell.”

The 1st Circuit U.S. Court of Appeals ruled in June against the plaintiffs. Judges noted that the “special deference we grant Congressional decision-making” on military matters means “Don’t Ask, Don’t Tell” is constitutional.

A petition for the case has not yet been filed with the U.S. Supreme Court.