No, Not Gay Rights — Individual Rights!
Yahoo News reported yesterday on a custody case almost unthinkable for most of my life, but which I expect will become more common.
A woman named Lisa Miller entered into a civil-union contract in Vermont with another woman named Janet Jenkins. Lisa Miller became pregnant by artificial insemination during this civil union and seven years ago — while the Miller-Jenkins civil union was intact — gave birth to a girl. From what I am able to read about the case, the civil-union contract specified that both women be regarded as parents of the baby.
Now here’s where the case starts really pressing a lot of emotional buttons.
After breaking up with Janet Jenkins, Lisa Miller decided she’s not a Lesbian anymore, moved to Virginia with her biological daughter, and has become an Evangelical Christian. Miller — in contempt of court-ordered custody arrangements which grant parental rights to both women — has now been ordered by Vermont Family Court Judge William Cohen to turn custody of her biological daughter over to the non-biologically-related former partner, Jenkins.
The courts in Vermont, Virginia, and — it seems even the Supreme Court of the United States — are treating the Vermont civil union as legally equivalent to a traditional marriage. There’s a lot of legislation and case law — built up over the years to prevent one biological parent from breaking one state’s custody orders by moving to another state — that’s being used as precedent. The Supreme Court of the United States has refused even to hear this case. That’s a strong indication that SCOTUS regards this case as dealing with settled law.
It seems clear that if Lisa Miller does not comply with this court order to turn her daughter over to Janet Jenkins, she’s going to have the full weight of the law drop on her and squash her like a bug. She runs and she’s a kidnapper, with her face on Post Office walls and her daughter on milk cartons. She’s caught and she’s going to the Big House.
To traditionalists — especially Evangelical Christians — Miller being the child’s biological mother is a strong argument for sole custody. Adding in that the other claimant for parental custody is a Lesbian pretty much finishes off any possibility of escaping adrenaline when viewing such a case. A Christian mother has to give her child to a Lesbian? Have all the judges gone insane?
It doesn’t take much for a science-fiction writer like me to imagine an Underground Railroad of Evangelical Christians hiding Lisa Miller and her daughter, and trying to smuggle them to Canada or Mexico with forged papers.
Here’s the problem for me. Libertarians like me believe the only alternative to a society run by brute force is a society run by the honoring of individual contracts.
Children too young to have legal responsibility for themselves are, in effect, chattel — and always have been. Traditionally parents owned them and could even sell them into apprenticeships or marriages. Modern judges — always wanting as much power transferred away from private individuals to the State as possible — have created a test called “the best interests of the child” that generated laws and legal precedents weakening parental rights, and strengthening powers of government officials to remove children from the custody of an “unfit” biological parent.
That makes libertarians like me nervous as hell when “unfit” could be doing anything considered politically incorrect — smoking, keeping guns in the house, feeding a child veal, or home schooling a child with unapproved books — and that could mean Dianetics by L. Ron Hubbard or Manifesto: Three Classic Essays on How to Change the World by Ernesto Che Guevara, Karl Marx, Friedrich Engels, and Rosa Luxemburg as much as In the Beginning: Compelling Evidence for Creation and the Flood (8th Edition) by Walt Brown.
Assuming we’re dealing with two fit parents — individuals with means to provide the child with food, clothing, schooling, medical care — the questions a libertarian judge would ask are: Is that Lisa Miller’s signature on the civil-union contract? Was Lisa Miller of legal age and sound mind when she entered into the contract for custody with Janet Jenkins? Was Miller in any way under duress when she signed that agreement?
If the answer to the first two questions are “yes” and “no” to the third question, an impartial libertarian judge who believes that abiding by contracts is the way responsible adults demonstrate their responsibility in other ways would have to say to Lisa Miller, “If you can’t even be trusted to abide by your contract, why should I regard you as trustworthy enough to raise a child?”
This is the same questions libertarians want asked when a surrogate contracted to carry a baby for a couple decides at the last minute to unilaterally breach the surrogacy contract and keep the child.
Now, speaking personally, I hope Janet Jenkins is being motivated to fight for custody because she loves this child, rather than merely being one more fucking political activist using the child as a football in a political struggle for collectivist class rights.
I think it’s a really bad idea that the question of whether Lisa Miller and Janet Jenkins were Lesbian lovers even has to be raised. I find it highly prejudicial — and I mean that at first blush it prejudices me in favor of Lisa Miller retaining custody of her biological offspring — that the wedge issue of gay rights is shoved into this case.
I can see that if Janet Jenkins is denied parental rights in this case, it’s a legal precedent against all adoptive, non-biologically-related parents — regardless of their gender orientation.
Then we’re back to ownership of children by blood … and it means, also, that 17-year-old Rifqa Bary must be sent back to live with her Muslim parents, Mohamed and Aysha Bary, who Rifqa says consider her an infidel because she’s been baptized as a Christian.
Would Evangelical Christians want a “biological parent wins” precedent in the Miller-Jenkins case to force that to happen?
Of course we also need to ask the question: at the age most courts would regard a child as old enough to be tried for a crime as an adult — and, yes, that’s already happened to children as young as seven, the current age of Lisa Miller’s biological daughter — shouldn’t the child at that age get to have major say in who she has to live with?