One of the complicating factors in having law established on the bench rather than through the legislative process is that a judge's ruling is usually limited to just one legal element--while laws pertaining to the same topic are usually left as is--creating a mess of inconsistencies. Such is the case with the Federal ruling that struck down Wisconsin's constitutional ban on same-sex marriages.
While the ruling forced the state to recognize same-sex marriages, it did nothing to change the laws on adoption and child custody that are now affected by the change in the definition of marriage. And that has been borne out by a case involving a Winnebago County couple. The two women are legally married and one of them is the biological mother of a child they parent. But under current state law--only the biological mother--and not the non-biological partner has any parental rights.
The women went to court to try to have the non-biological partner become an adoptive parent of their child--but the state forms (and definitions) of adoptive parents require listing a "mother" and a "father". They asked Judge Karen Seifert to declare those references unconstitutional and allow the non-biological partner to be listed as just "parent". Judge Seifert--to her credit--recognized that this was technically not an adoption ruling, but rather a demand for a declaratory judgment--meaning that the state Attorney General should have been petitioned and allowed to argue the State's position on what legally constitutes "parents" in Wisconsin"--so she dismissed the request. The state Court of Appeals upheld that ruling this week.
While many of the lawmakers in Madison may not like the prospect of same-sex adoption and parenting, the legalization of same-sex marriage compels them to address the issue in our laws. As they currently stand, Only the partner that is the biological parent of a child--or the legally-recognized adoptive mother or father--has any rights. That means if the biological or adoptive parent was to be killed or incapacitated, the other partner would not be allowed to make legal or medical decisions on behalf of the child--even though she may have been co-parenting for years. The same is true in cases of same-sex divorce--without legal recognition of an adoption by the non-biological partner, the biological or adoptive parent could keep the child away from a former spouse with no legal recourse.
So our Legislators have a choice. They can start working to amend our adoption and child custody laws to recognize the legality of same-sex marriages--or they can go through plenty more lengthy and costly lawsuits only to have judges order them to do it.