The Vice Of Bad Law Reporting

Never expect VICE to shy away from divisive, clickbait headlines, especially when it comes to calling people names. A post filed yesterday on the “underground news” site blasted the following headline:

Why Conservatives Are Picking Sides in a Lesbian Child Custody Battle

Divisive rhetoric aside, the article itself contains several outrageous statements at the heart of an issue litigated across the nation.  Now that same sex couples have the right to marry, and have previous marriages celebrated in all fifty states thanks to the Obergefell opinion, where do same sex couples with children stand with regards to child custody disputes?  Do same sex couples with children have the same custodial rights as heterosexual married couples?  Is this a subject left to the judiciary, argued case by case, or is this a domain of the legislature?  The judge at the heart of the case outlined in the VICE article, Gregory McMillan, seems to be pretty clear where his role lies.

[McMillan] said it was not up to the courts to enact “social policy” via legal rulings and a strict reading of the artificial insemination law tied his hands in this case.

“I believe as a trial court I am not to plow new ground, but to apply precedent and the law,” McMillan said.

This is a judge you want trying your case.  McMillan, ever the stickler for those concepts social justice activists hate called “rules” and “law,” expressed sincere sympathy for Erica Witt when staying her divorce proceedings to her wife, Sabrina, pending a possible ruling from the Tennessee Court of Appeals.  Yes, the laws on the books in Tennessee are gender specific when it comes to custodial rights via donor insemination.  That’s because Tennessee wrote and enacted the law back in the 1970s, not anticipating same sex marriage and custodial issues being decided with two women or two men as the individuals tasked with raising a child.  McMillan refused to break his sworn duties as a judge, as uncomfortable as it might have been for him, and applied the law as it was written.

Of course, this rigorous adherence to the law meant it was time for the outrage mobs to break out their pitchforks and torches.

“This judge is keeping a mother from her child,” Susan Sommer, director of constitutional litigation at Lambda Legal, told VICE. “It strikes at the very heart of what marriage carries with it, which is respect and recognition,” not only for the couple’s bond but “for parenting and family.”

A director of constitutional litigation for a national LGBTQIA+ group calling the heart of marriage “respect and recognition…for parenting and family” accomplishes two goals with one pithy press statement.  First, she misstates the concept of marriage.  It’s a contract between two people to join as a family.  Anyone who’s actually been married will tell you the heart of marriage doesn’t contain a shred of respect or recognition, especially when it comes time for a fight over who’s cleaning the toilets and taking out the trash.  Parenting is a goal set when the married couple decides to take the monumental step of bringing up a child.  It’s something accomplished outside of marriage.

Second, she misstates Judge McMillan’s actual position on the case.  His decision to stay Sabrina and Erica Witt’s divorce proceedings until the custody question could be resolved by a court of appeals isn’t keeping a mother from her child.  It’s a way lower courts get direction on issues not yet resolved by precedent or statute.  By essentially pressing “pause” on the divorce proceedings, Judge McMillan is making sure whatever outcome takes place at the appellate level, he’s actually doing his job the way it’s intended.

The Witt case wasn’t one necessarily about putting the name of a mother on a birth certificate, as the VICE article misstates.  When Sabrina and Erica Witt’s marriage finally became recognized in state, Erica Witt never asked to have her name placed on her child’s birth certificate.  Nor did Erica Witt attempt to go through the necessary steps to have that name placed on the birth certificate.  She simply assumed since her marriage was now celebrated in Tennessee, her status as a parent would be celebrated in Tennessee as well.  There was no need to take action on her behalf until Sabrina decided to seek sole custody of their minor child in their divorce proceeding.

Erica Witt’s attorney argued the statute on custody regarding donor insemination was outdated and the language required a change at the judicial level.  Sabrina’s attorney argued the position it was the legislature’s job to change the statute, not the judge’s.  While Judge McMillan might’ve wanted desperately to intervene and do what was “right” in the eyes of activists, he took the toughest action of all: he applied the law.

When Erica Witt’s attorney pulled the Obergefell card, asking the court to recognize the custodial relationship between herself and her child, McMillan shocked the conscience of the SJW crowd and the VICE readership by announcing Obergefell was a “limited decision.”  He’s correct, as the opinion holds the Fourteenth Amendment requires all states to recognize and celebrate a marriage between two people, whether heterosexual or homosexual.  Any sweeping language beyond that comes down to what is considered “dicta,” or extra stuff a judge thought pertinent to the case.  That includes Justice Kennedy’s allusions to deciding individual marital benefits on a case by case basis in the courts.  This is the way the law operates. Not with a sweeping loveliest for all, but with blow by blow being decided when people don’t get along.

Blaming those damned Republicans for everything and their religious friends won’t really help change bullshit quotes like “What’s crucial to recognize is that family law is designed to protect children, not to privilege some kinds of adults over others.”  Family law revolves around the creation and dissolution of families.  Not necessarily the protection of children or working with horse shit claims of “privileging adults.”  Facts and the law don’t matter in a world where you’re right because your party and priorities don’t match with someone else, so it’s easy to act a blithering idiot and say things like the following:

 Now that same-sex marriage is the law of the land, and the family-values crowd is on the wrong side of the law, their effort to oppose LGBTQ equality is no longer a matter of protecting an idealized family configuration, but about prying apart the relationship between actual parents and children.

Welcome to the world of divorce law.  It’s not about your perceived homophobia, intolerance of those who don’t share your views, or the people who you think feel the wrong way and spout wrongthink.  Divorce and family law is about prying relationships apart, and that involves putting kids in the mix.  At the heart of the divorce debacle is often a child who wants to know why mommy and daddy (or in this case mommy and mommy) don’t love each other anymore.  Both parents will often use the child as a playing card in a gambit for more money or more property.  That’s the reality of family law.  The fact VICE uses it, and a child, as leverage to push an anti-conservative narrative just makes them all the more disgusting.