Last year after the Virginia Supreme Court refused to decide whether the Virginia Marriage Amendment prohibits recognition of the custody order, a Vermont court ruled that its custody order be enforced in favor of Janet Jenkins, a practicing lesbian who is not Isabella's biological or adoptive mother. Janet's Virginia attorney then withdrew after he was indicted for obstructing justice and tampering with evidence regarding a murder that occurred in his home, where his college male friend was sodomized and killed. The ACLU then took the lead on the case and asked the Virginia courts to enforce the Vermont order.

Liberty Counsel opposed the enforcement and argued that the Virginia Constitution and state law prohibit both recognition and enforcement of same-sex civil unions. The issue of whether the Virginia Constitution prohibits enforcement of the custody order (as opposed to mere recognition) has never been previously litigated because (1) Jenkins only sought to have it recognized, not enforced, and (2) the Virginia Constitution was amended after the initial litigation began.

Yesterday Rena Lindevaldsen, Special Counsel to Liberty Counsel and Assistant Professor of Law at Liberty University School of Law, argued in Virginia Circuit Court before Judge Prosser for Lisa Miller. Although Prosser stated that he does not believe the Vermont order can be enforced in Virginia, he concluded that it is a question for the appellate courts.

The brief filed today by Liberty Counsel in the Virginia Court of Appeals is part of a new round of appeals that squarely raises the impact of the Virginia Constitution, which became effective on January 1, 2007. It asks the court to refuse to enforce the Vermont order, based on U.S. Supreme Court precedent making a legal distinction between recognition and enforcement. While the Full Faith and Credit Clause may require registration of the Vermont order, it cannot constitutionally require enforcement. Moreover, the federal Defense of Marriage Act exempts states from even recognizing out-of-state, same-sex unions.

Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, commented: "The road toward justice has taken a long and winding path, but we believe the courts are getting closer to addressing the core issues in this case. Virginia sovereignty, the definition of marriage and family, and the lives of Lisa and Isabella Miller are all at stake in this case. The people of Virginia have plainly spoken in favor of traditional marriage and have rejected same-sex unions. The Virginia courts must now uphold the Constitution."