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Wednesday, October 19, 2005
The Failed Doctrine of States' Rights, I
A Historical Argument on the Necessity of Federal Enforcement of Rights

Custody After Civil Union Pits States and Judges

MONTPELIER, Vt., Sept. 7 - Judges in Vermont
and Virginia have different ideas about what is best for Isabella Miller-Jenkins, 3, born to a woman who had a civil union with another woman in Vermont. The relationship ended two years ago. Now each woman says Isabella is her daughter, with one asserting exclusive motherhood.

The judge in Vermont ruled that the women should "be treated no differently than a husband and wife." He established a visiting schedule and held the biological mother, Lisa Miller, in contempt of court when she failed to comply with it.

The judge in Virginia ruled that Ms. Miller had the sole right to decide who could see the child. He ruled that the former partner, Janet Miller-Jenkins, had no "parentage or visitation rights." Legal experts say the decisions, which reached State Supreme Court here on Wednesday, are the first to present a direct conflict between two state courts on a substantial legal question arising from a same-sex couple's union. The decisions offer a preview, the experts added, of what are quite likely to be many similar conflicts around the nation.

Ms. Miller moved back to Virginia, where Isabella was born, in September 2003. The couple had visited Vermont briefly for the civil union ceremony in 2000 and lived there for more than a year after Isabella was born in 2002.

"When I left Janet," Ms. Miller said in a telephone interview, "I left the homosexual lifestyle and drew closer to God."

Ms. Miller-Jenkins, who declined to be interviewed, has said the couple planned and cared for Isabella together. She read a statement outside the courthouse after arguments on Wednesday."I sincerely believe," she said, "that it is best for my daughter that both of her parents continue to be an active, loving, responsible part of her life."

The justices here were largely skeptical of the arguments offered by a lawyer for Ms. Miller, who, like her former partner, had been known as Ms. Miller-Jenkins. The justices also indicated that they were working in uncharted territory.

"The assisted reproductive technologies are galloping ahead of existing
law," Justice Marilyn S. Skoglund said.

A few minutes later, Justice Denise R. Johnson asked about the consequences of inconsistent rulings. A lawyer for Ms. Miller-Jenkins, Jennifer L. Levi, said the question was premature. A Virginia appeals court will hear arguments in that suit next Wednesday.

"I'm just trying to figure out what the effect of our decision is," Justice Johnson said, in a tone suggesting it might have no effect because Isabella and Ms. Miller live in Virginia.

The cases involve the interaction of two sets of laws. At the state level, Vermont and Virginia have laws that say the first court to take jurisdiction of a custody case should make the final determination. That would seem to help Ms. Miller-Jenkins here.

In November 2003, it was Ms. Miller, the Virginian, who filed papers in Vermont to dissolve the union. In them, Ms. Miller acknowledged that Isabella was a child of the union and asked the court to allow her former partner to have contact with the girl. Her lawyers have since taken varying positions. Ms. Miller now says she was confused and did not mean to acknowledge any parental relationship between her former partner and Isabella.

A 2004 Virginia law, the Marriage Affirmation Act, makes same-sex unions from other states "void in all respects in Virginia." Judge John R. Prosser, of Frederick County Circuit Court in Winchester, Va., relied on that law in October in granting sole custody of Isabella to Ms. Miller. Two potentially conflicting federal laws add to the confusion. The Parental Kidnapping Prevention Act largely tracks the state custody laws and requires other states to defer to the first courts to hear such cases. But the federal Defense of Marriage Act says states need not give effect to same-sex

Joan Hollinger, who teaches adoption law at the University of California, Berkeley, said the Vermont judge had the better legal arguments. But, Ms. Hollinger added, "Vermont courts are in practical terms powerless to enforce their valid orders in Virginia if Virginia courts simply say no."

If the states' highest courts issue conflicting decisions, the case could head for the United States Supreme Court, said Mathew D. Staver, a lawyer for Ms. Miller. Mr.
Staver added that similar conflicts could arise from decisions in California, where State Supreme Court ruled last month that both people in a lesbian couple should be considered a child's parents in many circumstances. The Legislature in Sacramento passed a same-sex marriage law on Tuesday. Ms. Levi disagreed, saying the case was an instance of the ordinary heartbreak after a family breaks up.

"It's an unfortunate reality that children get put in the middle," she said. "Ultimately, what this case is going to decide is whether children born to same-sex couples should be treated the same or differently as other children."

Andrew Koppelman, a law professor at Northwestern, addressed such case in a book on interstate recognition of gay marriages that Yale University Press will publish next year. "If the Virginia court is correct," Professor Koppelman wrote, "then no parental right arising out of a same-sex marriage is secure anywhere in the United States."

Ms. Miller said Isabella neither knew about the case nor cares about its consequences. "She doesn't even ask about Janet," Ms. Miller said. "I am the only mother."

In Vermont, Judge Cohen held Ms. Miller in contempt in September for
not allowing visits to Isabella. He has not imposed sanctions.

"The judicial system as a whole simply cannot allow parties to try to take advantage of legal and cultural differences," he wrote, "which may make one state favor the position of a particular party over another."

Ms. Miller said she found the idea that a court could force her to allow Isabella to visit Ms. Miller-Jenkins particularly hurtful. "It would be like somebody off the streets coming and taking my daughter," she said. "They have no ties to my daughter."

It is always popular-- and to that some would add other loaded terms like 'reasonable' or 'pragmatic'-- to argue that the most contentious issues of our day, or identity/rights claims not envisioned by our Founders, should be left to the states to work out. The equality of persons within the institution of marriage is one such issue today, just abortion was such an issue until Roe v. Wade and black status within America until the 13th-15th amendments.

History repeats itself in the most ironic ways. The argument over the political status of the emancipated classes during Reconstruction provide guidance, I believe, toward addressing the claims of those who would like to make the marriage issue a state-issue versus a federal issue. After detailing my reading of the Reconstruction period, I would like to use the New York Time's piece for some practical evidence for my theoretical claims.

Reconstruction Debates over Federal Power

(1) After Lincoln died and Andrew Johnson become President of the United States, Andrew Johnson largely wanted to accomplished two goals during Reconstruction. The first was to get create state governments of loyal Unionists in the south and to seat Senators from southern states seated as soon as possible. The second goal was to not seem too punitive on the South now the war was over. President Johnson largely supported the passage of the Thirteenth Amendment outlawing slavery in all of the United States. Other issues, like the political and social status of the freedmen Johnson wanted to leave to states. The Radical Republicans, led by Thaddeus Stevens and Charles Sumner, not only wanted to punish the Southern rebels, but wanted to both create large bodies of Republican voters and provide for the general welfare of the emancipated classes. The fight for black suffrage in the South had begun.

The southern states were furious that the Republicans were considering the enfranchisement of the Negro. Their main argument was that blacks being able to vote in the South was hypocritical given the treatment of blacks in the North. Northern blacks, suffering under fierce discrimination and segregation, were a testament to the Southern whites that the South was not peculiar in its dislike and distrust of the Negro. As far as the southerners were concerned, since they had already caved on the issue of emancipation, the issue of suffrage was another Republican plot to humiliate and destroy genteel Southern culture.

The national Democrats were similarly against black suffrage. States had traditional enjoyed the right to definite and delineate who the eligible voters were. The usurpation of that right by the federal government, which conveniently was under Republican control, empowered the Republicans too much, and created a rival body politic in the south to Democrat hegemony. (The recent appoint of Salmon Chase to the chief justiceship of the United States solidified Republican control over all three branches.) Many of the moderate and conservative constitutional scholars were in favor of leaving this issue of suffrage to the states.

Besides the obvious question of what black emancipation would entail if it didn't include land and didn't include suffrage, what Southern state would have protected black rights if left to its own devices? The historical record clearly demonstrates that the state governments, rather than legislating to enable and expand the freedom of blacks, took every legislative means to restrict that freedom. The southern states, in their infamous black codes, justified the restriction of blacks' freedom of movement--for the freedom of movement was their substantive civil right at the time--based on the laziness of black laborers.

The southern argument against the laziness of blacks, as well as the American conception of work in general, has always struck me as a bit odd. When the blacks were still enslaved, the plantation owners, with their leisurely life of indolence, often exclaimed that blacks were insufficiently motivated to work. This southern argument seemed to continue after the war into reconstruction because many of the black laborers became migrants, or, refused to work as wage-laborers on the cotton plantations. Northern elites intervened into the debate over black labor power to, somewhat condescendingly, maintain that the freedmen, like their Northern white counterparts, must labor, save, accumulate, and purchase their economic self-sufficiency rather than expect the federal government to provide it for them.

Many blacks did in fact work, just not in the traditional cotton occupations, save for the cases where the lands were freedmen-owned. The issue at heart for them at the time was economic self-sufficiency. "The sole ambition of the freedman at the present time appears to be to become the owner of a little piece of be able to do that free from any outside control." The former slaves wanted to participate in determining when and under what conditions they would sell their labor power. Eric Foner, in his book Reconstruction, records the desires of the freedman to control their own labor power made in the pages of the New York Tribune and the "convention of the colored people of Virgina": "We scorn and treat with contempt the allegation...that we understand Freedom to mean idleness and indolence. But we do understand Freedom to mean industry and the enjoyment of the legitimate fruits thereof." (103)

By contrast, most of the southern economic elite, and their northern financial backers, wanted an immobile, cheap labor force to jump start the agricultural, cotton, export economy. The states took many steps, from confiscating black land to collapsing black banks, to reduce the economic sufficiency of blacks.

(2) Grant and Federal Power

My argument, as it is unfolding, is this: state governments cannot be relied on to secure the rights of a persecuted minority absent specific instructions and interventions from a federal authority. We began to see such an intervention, and a corresponding improvement in the freedman's condition after federal intervention.

U.S. Grant was to become a very controversial president as he often intervened into traditionally dominated state-law areas to protect freedmen and poor whites from the mercy of the landed-gentry in the south. He recreated the military governments of the south, while expanding the war against the Indians in the West, and allowed the government to hear cases in military courts until forbidden to do so by the Supreme Court. Unlike under Johnson's Reconstruction, many of the black political leaders were able to participate fully in elections and sent representatives and senators to Washington.

Grant's constant interventions into southern political and cultural life produced and encouraged southern resistance to federal rule. This resistance took both legal and extralegal forms. The legal resistance to a strengthened federalism masqueraded under states' rights. Indeed, on constitutional grounds, the legal scholars possessed a not-insubstantial claim. Before the passage of the 14th and 15th amendments, the Congressional discussion of the civil and political rights of persons were generally questions exclusively of state concern. Alternatively, many congressmen knew that the Congress had to define exactly what emancipation meant for it to have any teeth. The extra-legal resistance came in the form of the Klu Klux Klan, and other groups designed to terrorize the black, and complicitous white, population into submission. Whenever any advocate of advanced civil rights and civil equality appeared in southern life, the resistance would ride forth and either vandalize and destroy property, or, kill, maim, and murder ambassadors of freedom.

As Grant's administration went on, and these acts of violence and resistance did not diminish, the Republican coalition grew wary of federal interventions into the states in the name of the 14th amendment. In fact as more and more of the old abolitionists died--Charles Sumner, Thaddeus Stevens, etc.--the liberal Republicans, centered on Charles Francis Adams, became more pro-business and less pro-civil rights. Grant's belief in needing to protect all people who lived under the Constitution was proving to be messy, and the Reconstruction issue was become quite unpopular in northern and southern sentiment.

In deed, the Radicals, after their passage of the 15th amendment, and their codification of the Civil Rights Act of 1866 into the 14th amendment (take that originalists!), had lost most of their political capital in the Republican party. Ted Stevens remarked to the 39th Congress during Johnson's administration, that Congress and the federal government were "making a nation" and that obsolete "technical scruples" should not be allowed to stand in the way. Most of the Radicals wanted to remake southern society from the ground-up, from the emancipation to the enfranchisement of the Negro. The point here is, absent federal intervention, and the forceful ratification of the 13th, 14th, and 15th amendment, blacks would have never had any legal protections at all.

(3) The states could not be counted upon to come up with a uniform defense or even positive declaration of the rights of black persons. The political actors in each state were much too busy trying to control labor conditions as they had in the days of slavery to award any substantive measure of freedom to the freedmen. As the free blacks of New Orleans quickly found out, after emancipation, the definition of equality and freedom in American society was quickly beginning to correlate along racial, as well as, class lines. Whereas the poorest white Americans had always been trapped and were virtual slaves to the system of their landless wage-labor and lack of political rights, the freedmen and free persons of color encountered new barriers to their social mobility: social exclusions and an unequal application and enforcement of the law. Extrajudicial terror aside, being black quickly became a second-level of oppression with the institutional violence inchoate with American politics trying to obliterate and erode the agency, independence, and will of the blacks under the system. (As the election of 1872 would demonstrate, white women were also quickly coming to understand this sense of group oppression.)

My next post will address the claims of gay activists. The argument here, evidenced from the history of Reconstruction, is that contested rights--when the very admissibility of the person as a rights-bearing individual is at stake--never are protected by state governments until the federal government compels them to do so. Absent federal intervention, at least in determining the capacity of the contested persons to bear rights at all, state governments will never secure either the rights in question or establish said person as having the capacity to bear those rights.