Virginia Appeals Court Says, Obey the Law

The Virginia Court of Appeals on Tuesday told lower courts that their job is to apply the law, not make it up as they go along, in a stern rebuke to activist judges.

According to Overlawyered.com:

Reversing a lower court, the Virginia Court of Appeals "ruled Tuesday that Virginia state courts had a constitutional obligation to defer to the rulings of Vermont courts in a child custody dispute involving two lesbian partners who had entered into a Vermont civil union." (Jurist, Nov. 28; opinion in PDF format). The ruling will come as no real surprise to those who've read previous posts in this space (Aug. 26, 2006; Dec. 16 and Aug. 15, 2004). Some social-conservative commentators had unwisely applauded the efforts of Liberty Counsel, a misnamed Religious Right litigation strike force, to help client Lisa Miller evade the jurisdiction of a Vermont court order ordering visitation rights to former partner Janet Jenkins.

Michael Hardy explains the ruling further in today's Richmond Times-Dispatch:

Lisa Miller-Jenkins, the mother impregnated by sperm from an anonymous donor, won her battle in a Virginia court to deny her former partner, Janet Miller-Jenkins, rights granted under Vermont law that recognized their civil union there in late 2000.

But the three-judge Virginia panel said yesterday that the federal Parental Kidnapping Prevention Act trumped the trial court's ruling on behalf of Lisa Miller-Jenkins.

In November 2003, Lisa Miller-Jenkins filed a complaint in a Vermont trial court to dissolve the civil union and determine visitation and other rights.

"By filing her complaint in Vermont, Lisa invoked the jurisdiction of the courts of Vermont and subjected herself and the child to that jurisdiction," Judge Jere M.H. Willis Jr. emphasized.

The court reversed the subsequent decision of a Frederick County judge giving Lisa Miller-Jenkins sole custody of the girl. The judge mistakenly relied, it argued, on Virginia's Marriage Affirmation Act, which voids same-sex unions.

"This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Virginia," the court said. "Rather, the only question before us is whether, considering the [federal law], Virginia can deny full faith and credit to the orders of the Vermont court regarding custody and visitation. It cannot."

Here's the message for judges -- in Frederick County or elsewhere -- who want to legislate from the bench: Don't do it.