Lambda Legal’s federal lawsuit seeking to compel Wisconsin officials to issue appropriate birth certificates for children of married same-sex couples hit a speed bump on December 16 when U.S. District Judge Barbara B. Crabb denied Lambda’s motion for class certification and summary judgment in Torres v. Rhoades, 2015 U.S. Dist. LEXIS 169965, 2015 WL 9304584 (W.D. Wis.). Lambda sued on behalf of plaintiffs Chelsea Torres and Jessamy Torres and their minor child, A.T. A.T. was born as a result of donor insemination performed in compliance with Wisconsin statutes, and the women were legally married before A.T. was born, but Wisconsin officials refused to issue a birth certificate listing both women as mothers of A.T., asserting that the non-birth mother would have to go through an adoption proceeding to get her name on an amended birth certificate.
Under Wisconsin statutes a birth certificate lists the woman who gave birth to the child and her legal husband. Furthermore, the statute governing birth certificates provides that if a child was conceived through donor insemination in compliance with a Wisconsin statute that requires that a licensed physician supervise the process and that the woman’s husband give written consent to the procedure, then the wife and husband are both listed on the birth certificate. If the husband does not give written consent, he is not listed on the birth certificate, even though he is married to the birth mother. Furthermore, if the donor insemination is not carried out in compliance with the statute, only the birth mother is listed on the birth certificate, even though she is married. Chelsea and Jessamy Torres complied with the statute, having a doctor supervise the insemination procedure and the non-birth mother giving written consent, with the sperm donor waiving all claim to parental rights.
The motion seeking class certification proposed a class consisting of “all same-sex couples who legally married in Wisconsin or in another jurisdiction, at least one member of whom gave birth to a child or children in Wisconsin on or after June 6, 2014, and who request birth certificates for such children listing both spouses as parents, regardless of whether they have already received birth certificates listing only one spouse as a parent; and all children born to such couples on or after June 6, 2014.” The date is significant because it is the date on which Judge Crabb declared Wisconsin’s ban on same-sex marriage unconstitutional in Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014). Wisconsin Department of Health Secretary Kitty Rhoades opposed the proposed class by arguing that the proposed class representatives, the Torres couple and their child, could not properly represent the interests of all proposed class members, since the class as described would take in people who conceived their children in different ways, and thus would present different issues regarding entitlement to placing a name on a birth certificate as a parent.
The proposed class would not, as a matter of fact, including same-sex male couples, just female couples, but Secretary Rhoades pointed out that women can become pregnant in at least three ways relevant to the issues presented to the court. A female couple could conceive through donor insemination carried out in compliance with the state’s assisted conception statute, involving supervision by a physician and written consent by the non-birth parent; or, they could conceive through donor insemination that does not comply with the statute; or, in presumably the rare case, they could conceive by the birth mother having sex with a man to whom she presumably was not married. (This is not so far-fetched; there is at least one case from another state in which a woman became pregnant through sex with a male friend while her relationship with her same-sex partner was “on hiatus” and the women resumed their partnership before the child was born. . .) Rhoades argued that because the proposed class representatives fit into only the first category, they could not represent the second and third categories, whose cases would present different legal issues when viewed from the perspective of equal protection of the laws and due process under the 14th Amendment, which were the constitutional grounds cited by Lambda for the lawsuit.
Judge Crabb agreed with Rhoades that “subclasses” would be needed and new plaintiffs would have to be joined as class representatives in order to give the court jurisdiction to deal with the birth certificate issues that would be raised by the other two classes. “The general rule in this circuit is that a plaintiff cannot be an adequate representative of the class if she is not subject to the same defenses as other members of the class, at least if the defense is central to the litigation,” wrote Judge Crabb. In this case, while the state is essentially conceding that after Obergefell v. Hodges it doesn’t have a good defense to the claims of married same-sex couples who complied with the donor insemination statute, it could oppose the claims of those who didn’t comply, or of those who conceived by a member of the couple having sexual intercourse with a man to whom she was not married. Judge Crabb found that the circuit’s rule applies to this case.
She agreed with Lambda that the claims regarding birth certificates would be appropriate for class treatment, but she could not certify Lambda’s plaintiff couple and their child as representatives for the broad class described in the motion. In light of her decision that the proposed class could not be certified, Judge Crabb held that it would be premature to grant Lambda’s motion for summary judgment. She pointed out that the state has actually conceded that the first subclass of same-sex couples who followed the requirements of the donor insemination statute should be entitled to get both names on the birth certificate without the non-birth mother going through an adoption, and had offered to amend the birth certificates of all couples who had complied with that statute, but plaintiffs had declined the offer in order to maintain this class action.
Judge Crabb also opined that Lambda’s request for a declaration that various Wisconsin statutes unconstitutionally discriminate against same-sex married couples seemed overbroad in light of the subject matter of the litigation. Lambda was attacking not only the birth certificate statute and the donor insemination statute to the extent that their application discriminates against same-sex couples, but also the paternal presumption statute, for failing to address the legal status of the non-birth parent in a same-sex married couple. That statute as worded provides that “a man is presumed to be the natural father of a child” who is born to his wife, but that the presumption could be rebutted by showing through genetic testing that another man is the actual natural father of the child. Crabb commented, “Plaintiffs do not explain how that presumption relates to birth certificates, which is the only issue plaintiffs raise in this case.” She pointed out that the paternal presumption statute “seems to involve issues that arise later,” such as obligations for child support or inheritance rights. “Plaintiffs do not include any allegations in their amended complaint showing how they are being injured by [the paternal presumption statute], which raises the question whether they have standing to challenge that statute. Standing is a jurisdictional issue, so I cannot ignore it even if defendant does not raise an objection. Thus, if plaintiffs plan to continue to seek a ruling regarding the constitutionality of [the paternal presumption statute], they will have to show that one or more plaintiffs meet all the requirements for standing.”
The judge specified that her ruling denying Lambda’s motions was “without prejudice,” and she gave Lambda until February 1, 2016, to file a new class certification motion. Either they will have to narrow their proposed class to same-sex married couples who complied with the donor insemination statute, or they will have to recruit additional plaintiffs and seek certification of several subclasses. In addition, if they want to attack the paternal presumption statute as part of this case, they will need to recruit plaintiffs who can show some sort of concrete harm due to the failure to that statute to take on a gender-neutral parental presumption approach that would apply to same-sex couples. In light of these rulings, Judge Crabb also struck the contemplated trial date of February 10, 2016, observing that after a new class certification is ruled upon, the court will set a new trial date, but that if the plaintiffs do not file a renewed class certification by February 1, the court would set a new trial date with the case proceeding on behalf of the named plaintiffs without class certification (in which case, by implication, the court’s ruling on the merits would only deal with the claims of married same-sex couples who complied with the donor insemination statute).
In an earlier ruling on December 16, 2015 U.S. Dist. LEXIS 167977, Judge Crabb pointed out that ordinarily a summary judgment motion would not be ruled upon in a class action case until after the class is certified and notice is sent to class members so they can opt out or opt in as the case may be. “Presumably the parties do not believe that the class is entitled to notice in this case because neither side mentions notice in their filings,” wrote Crabb, but she pointed out that the Federal Rules of Civil Procedure provide that notice should be given “to enable class members to challenge the class representatives or otherwise intervene in the suit, rather than to allow them to opt out.” Crabb asserted that it was difficult for her to decide whether notice should be required in this case without any input from the parties, so she gave the parties until December 30, 2015, “to show cause why the class should not receive notice in the event that the court grants the motion for class certification. In addition, the parties should address the question of how notice would be provided if that is what the court orders.” Judge Crabb’s December 21 ruling mentioned the December 16 order in passing, but did not indicate whether the time for response would be extended in light of the denial of class certification.
Counsel for plaintiffs include Camilla Taylor, Christopher Clark and Kyle Palazzolo from Lambda’s Chicago office, and local counsel Clearesia Lovell-Lepak and Tamara Beth Packard, both of Madison, Wisconsin.