A Supreme Moment

With a Pro-Fairness assembly now seated in the Wisconsin Legislature, Tamara Packard draws attention to a critical April election.

With a Pro-Fairness assembly now seated in the Wisconsin Legislature, Tamara Packard draws attention to a critical April election*.

On April 7, Wisconsin voters will choose whether Chief Justice Shirley Abrahamson will remain on the Supreme Court, or whether she will be replaced by Jefferson County trial court Judge Randy Koschnick. As gay, lesbian, bisexual and transgendered Wisconsin citizens, as well as friends, family and allies who support the rights of LGBT people, we have a clear choice. Your decision will have deep ramifications: Cases affecting our legal rights are sure to reach the Supreme Court in the next few years. Vote intelligently, with your values and LGBT families in mind.

Chief Justice Abrahamson has been on the Supreme Court for 32 years. During that time, a number of cases touching on LGBT rights have come before the Court, and Chief Justice Abrahamson has repeatedly demonstrated sensitivity to the issues facing our families.

For instance, Justice Abrahamson authored the 1995 majority opinion in In re the Custody of H.S.H.-K. That case addressed the visitation and custody rights of a non-biological mother of a child planned for and raised by a lesbian couple, after the couple broke up and the biological mother attempted to cut the child off from his other mother. The Wisconsin Supreme Court ruled that under Wisconsin law, when a person has a parental relationship with a child, a court may grant that person visitation rights if it is in the child’s best interest, and if there has been a significant event (such as a break-up) which justifies state intervention. Reflecting an understanding of the real people whose dispute was before her, Justice Abrahamson wrote: “When a non-traditional adult relationship is dissolving, the child is as likely to become a victim of turmoil and adult hostility as is a child subject to the dissolution of a marriage. Such a child needs and deserves the protection of the courts as much as a child of a dissolving traditional relationship.”

Consistent with this recognition that children in nontraditional families deserve the same protections as all other children, Chief Justice Abrahamson joined the dissenting opinion in In re the Interest of Angel Lace M. In that case, LGBT families lost when the Court ignored the legislature’s clear statement that the best interests of the child are “paramount” when applying the adoption statute. The Court ruled that only one parent in a same-sex couple could be the adoptive parent of a child. Everyone involved in the case agreed that the family of Angel, her two mothers, and their other children was loving, healthy and stable, and that it was in Angel’s best interests for her to obtain the additional legal stability that comes from two-parent adoption. The dissenting opinion argued that given this, and because the legislature intended for the “best interests of the child” to govern the adoption statute, both of Angel’s parents should be allowed to adopt her.

Much less is known about how Judge Koschnick perceives our community. He has been a trial judge for fewer than ten years. Trial court decisions are not readily available to the public, and few are appealed. Of those cases that started in Judge Koschnick’s court, then were appealed and decided by an appellate court, none have touched on LGBT rights.

We are therefore left to discern Judge Koschnick’s perspective on LGBT issues through other avenues: his campaign website, the company he keeps, and what is covered in the media. On his campaign website (viewed on 1/19/09), Judge Koschnick has chosen to post a letter from Attorney Michael D. Dean, general counsel for First Freedoms Foundation, Inc., validating Judge Koschnick as a “judicial conservative.” Judge Koschnick also calls himself a “judicial conservative,” though there is no consensus on what that is. Yet if a “judicial conservative” is one with whom Michael D. Dean agrees, the LGBT community would be ill-served by Judge Koschnick winning this election. Mr. Dean was a leading supporter of the anti-gay “marriage amendment” to the Wisconsin Constitution. First Freedom Foundation, Inc., is a right-wing organization that proclaims on its website such things as: “The father-mother-child relationship is grounded in nature and natural law. . . . FFF . . . protects family integrity against . . . judicial redefinition of family.” Media reports indicate that Judge Koschnick is doing his early campaigning at gun shows and hunting expos.

Since the crushing 2006 passage of the “marriage amendment,” Fair Wisconsin has been working to create conditions in the Wisconsin legislature which would favor pro-LGBT legislation. With the 2008 elections, Fair Wisconsin had succeeded in this effort: the legislative leadership is now pro-fairness. If we all work together, Wisconsin will soon become the first state in the Midwest to legally recognize our families by ensuring that responsible, committed same-sex couples can take care of each other through specific legal protections. The protections Fair Wisconsin advocates include the right for state employees to cover their life partners on their health insurance, the right for all employees to take leave from their job to care for a partner who is seriously ill, hospital visitation rights, the ability of one partner to pursue and receive damages if the other partner is killed through someone else’s negligence, and so forth.

Because of the “marriage amendment,” the package of rights Fair Wisconsin is advancing does not approach anything “substantially similar to marriage.” However, it is possible that this legislation, once it becomes law, will be challenged as contrary to the “marriage amendment,” and that fight could go all the way to the Wisconsin Supreme Court. Please go to the polls on April 7 and vote in the Supreme Court race. Decide in which of these candidates’ hands you will put the future of LGBT families.

*Editor’s Note: Abrahamson was re-elected to her fourth term on the Wisconsin Supreme Court on April 7, 2009. With that election’s victory, Abrahamson became the longest serving justice in the in the 162-year history of the Wisconsin Supreme Court. It also makes her only the second justice in Wisconsin history to ever win election to the court four times.