By TODD RICHMOND
MADISON, Wis. (AP) — A judge properly dismissed a same-sex couple’s request for a declaration that one of them is the legal parent of the other’s child, a state appeals court ruled Wednesday.
The 2nd District Court of Appeals found the couple’s petition seeks a declaration that paternity statutes using gender-specific terms are unconstitutional after a federal judge legalized gay marriage in Wisconsin last year. Parties challenging statutes’ constitutionality are required by state law to serve the action on the state attorney general and the couple failed to notify that office, the court said.
Court filings identify the Winnebago County couple as Christie L. and Susan R. It says they’re both college professors and have been in a relationship for five years.
In September 2013, Susan R. was artificially inseminated using an anonymous donor. She gave birth in June 2014, the day after U.S. District Judge Barbara Crabb issued a ruling legalizing gay marriage in Wisconsin. Six days later, the couple got married.
They filed a petition with Winnebago County Circuit Judge Karen Seifert in November 2014 arguing that in the wake of Crabb’s ruling, references to men and women and husbands and wives in the state’s paternity and insemination statutes are unconstitutional and they should be read as gender neutral. Therefore, the couple argued, they deserve a declaration that Christie L. is Susan R.’s child’s second legal parent.
Seifert dismissed the petition. She said the couple wants a declaratory judgment but filed their petition as an adoption action in an effort to get around filing fees and the requirement to notify the attorney general’s office. The attorney general when the couple filed the petition, Republican J.B. Van Hollen, fiercely opposed gay marriage.
The appellate court agreed that even though the couple filed their petition as an adoption action they really wanted a declaratory judgment on the constitutionality of the paternity statutes, triggering the attorney general notification requirement. The court acknowledged state attorneys’ argument that failing to serve the attorney general permitted the couple to advance their claims without opposition.
Since the attorney general was never served, Seifert was within her authority to dismiss the petition, the court said.
The couple’s attorney, Emily Dudak Taylor, said in an emailed statement that her clients are “extremely disappointed” with the appellate decision. She accused the court of focusing on filing procedures rather than the merits of the couple’s arguments.
“A technicality won over the constitutional rights of a child and a family today,” she said.
Her clients haven’t decided what to do next, she said during a brief telephone interview.