Tuesday, November 28, 2006

Virginia Court of Appeals tiptoes around DOMA in Miller-Jenkins case

In Miller-Jenkins v. Miller-Jenkins, the Virginia Court of Appeals avoided application of the federal Defense of Marriage Act.

The Court wrote:

"Simply put, DOMA allows a state to deny recognition to same-sex marriage entered into in another state. This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont. Rather, the only question before us is whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ’s custody and visitation. It cannot. The law of Vermont granted the Vermont court jurisdiction to render those decisions. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the Vermont court. She placed herself and the child before that court and laid before it the assertions and prayers that formed the bases of its orders. By operation of the PKPA, her choice of forum precluded the courts of this Commonwealth from entertaining countervailing assertions and prayers."

The result sought by DOMA, 28 U.S.C. 1738C, was that "in the event Hawaii (or some other State) permits same-sex couples to marry, other States will not be obligated or required, by operation of the Full Faith and Credit Clause of the United States Constitution, to recognize that marriage, or any right or claim arising from it." H.R. Rep. 104-664, 23, 1996 U.S.C.C.A.N. 2905, 2929. Arguably, perhaps, the custody rights at issue arose from Vermont's recognition of rights for same-sex civil unions. On the other hand, I suppose the Court is saying that the custody rights at issue arose from the Virginia Ms. Miller-Jenkins' decision to litigate custody in Vermont.

DOMA was passed under the authority of Congress under the second sentence of the Full Faith and Credit Clause: "The Effects Clause is an express grant of authority to Congress to enact legislation to prescribe the effect that public acts, records, and proceedings from one State shall have in sister States. To state it slightly differently, Congress is empowered to specify by statute how States are to treat laws from other States. Read together, the two sentences of Article IV, section 1 logically suggest this interpretation: While full faith and credit is the rule-that is, while States are generally obligated to treat laws of other States as they would their own-Congress retains a discretionary power to carve out such exceptions as it deems appropriate." H.R. Rep. 104-664, 25, 1996 U.S.C.C.A.N. 2905, 2930.

The attempt by the Court in Miller-Jenkins to distinguish between marriage and its "effects" is at best inadequately explained. By glossing over the conflict between DOMA and the Parental Kidnapping act, the Court avoided the monumental question of whether DOMA itself is constitutional.

Anyhow, this decision advances the issue for resolution by the U.S. Supreme Court, one of these days, since it is based on the federal Parental Kidnapping statute. The decision also highlights the irrelevance of the recently-passed marriage amendment in Virginia. The Court blows past all Virginia law provisions as fully preempted by the federal law. An amendment to the Virginia constitution would be no less preempted.

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