May 3, 2024 – The Wisconsin Supreme Court has unanimously turned down a challenge to the state adoption law filed by a man who argued that the law’s requirement that an adoptive parent be married to the child’s parent violates the state and federal constitutions.

Justice Rebecca Bradley wrote the opinion for the unanimous court in A.M.B. v. Circuit Court for Ashland County, 2024 WI 18 (April 30, 2024).

Justice R. Bradley also wrote a concurrence, which Chief Justice Annette Ziegler and Justice Brian Hagedorn joined.

Justice Rebecca Dallet wrote a concurrence, which Justice Ann Walsh Bradley and Justice Janet Protasiewicz joined. Justice Jill Karofsky also wrote a concurrence.

Father Figure

For more than ten years, A.M.B., the mother of M.M.C., has lived with T.G., her male partner.

In that time, M.M.C. has come to regard T.G. as a father figure, and T.G. has assumed a variety of parental duties. M.M.C. does not have a meaningful relationship with her biological father, and the man’s parental rights have been terminated.

A.M.B. and T.G. filed a joint petition to adopt M.M.C. in Ashland County Circuit Court.

The county’s department of human services recommended that the court grant the adoption.

Circuit Court Rules Against T.G.

The circuit court determined that granting the adoption would be in the best interests of the child. But the circuit court concluded that under Wis. Stat. section 48.82(1), T.G. was not eligible to adopt M.M.C. because he was not married to A.M.B.

A.M.B. and T.G. appealed. They argued that the statute discriminated against non-married partners who want to adopt, in violation of the Equal Protection Clause of the Fourteenth Amendment and Article I, Section 1 of the Wisconsin Constitution.

The state asked the Court of Appeals to affirm the circuit court under Georgina G., 182 Wis. 2d 492, 516 N.W.2d 678 (Wis. 1994). In Georgina G., the Supreme Court upheld an earlier version of section 48.81 and section 48.92 against an Equal Protection challenge.

Because the Court of Appeals lacks the authority to overturn a Supreme Court opinion, A.M.B. and T.G. petitioned the Supreme Court to bypass the Court of Appeals. The Supreme Court granted the petition.

No Fundamental Right

Justice R. Bradley began her opinion for the unanimous court by pointing out that in Georgina G., the Wisconsin Supreme Court held that sections 48.81 and 48.92 did not implicate a fundamental right and were not based on a suspect classification.

“The court’s reasoning in Georgina G. was sound, and we decline to overturn that precedent,” R. Bradley wrote.

A.M.B. and T.G. acknowledged that there was no fundamental right to adopt.

But they argued that the Supreme Court should subject sections 48.81 and 48.92 to strict scrutiny – the most exacting standard of Equal Protection analysis – because the statutes implicate marriage, which the U.S. Supreme Court has recognized as a fundamental right.

But that argument missed the marked, Justice R. Bradley concluded.

“The adoption statutes do not impose any impediment to marriage, unlike laws at issue in other cases in which the United States Supreme Court has declared statutory restrictions on marriage unconstitutional,” R. Bradley wrote.

Instead, Justice R. Bradley reasoned, by limiting adoption to the married partner of a child’s parent, the statutes privileged marriage.

“As the United States Supreme Court has explained, the right to marry is fundamental – at least in part – because the state has historically provided benefits to married couples,” R. Bradley wrote.

Not a Suspect Class

Justice R. Bradley pointed out that under section 48.81, the legislature conditioned eligibility for adoption on whether the child still had a legal relation with one of his or her parents, and that under section 48.82, the legislature conditioned eligibility on the would-be adoptive parent’s marital status.

“Neither of these are suspect under an equal protection analysis, and the state retains broad discretion to establish legislative classifications provided that they have a reasonable basis,” R. Bradley wrote.

Justice R. Bradley concluded that the legislature had a reasonable basis for limiting stepparent adoptions to married person because: 1) married couples are more likely to provide safe, stable families; and 2) families headed by married parents are more likely to be financial stable.

“While A.M.B. and T.G. may provide a safe, stable, healthy, and loving home for M.M.C., the judiciary is powerless to craft an exception to the adoption law on a case-by-case basis,” R. Bradley wrote.

Karofsky Concurrence

Justice Karofsky pointed out in her concurrence that the operation of the state’s adoption law prevented an adoption determined to be in the best interests of M.M.C.

“This incongruous outcome exemplifies the specious connection between the statutes and their stated goal of promoting a child’s best interest,” Karofsky wrote.

She urged the legislature to change the adoption law.

“Conditioning adoption on the marital status of the child’s parent and prospective adoptive parent reflects questionable assumptions about which types of households are stable, and which are unstable,” Justice Karofsky wrote.

Dallet Concurrence

Justice Dallet pointed out in her concurrence that the Supreme Court has often interpreted state constitutional provisions to provide broader protection for individual liberties than their federal constitutional analogues.

Dallet noted that the wording of Article I, Section 1 of the Wisconsin Constitution differed in several significant ways from the Equal Protection Clause of the Fourteenth Amendment.

“Whereas the Fourteenth Amendment’s protections extend only to those rights ‘so rooted in the traditions and conscience of our people as to be ranked fundamental,’ the inherent rights contemplated by Article I, Section 1 are not so limited,” Justice Dallet wrote.

“It is up to us – judges, lawyers, and citizens – to give effect to the fundamental guarantees of Article I, Section 1,” Dallet wrote.

R. Bradley Concurrence

Justice R. Bradley used her concurrence to criticize Justice Dallet’s concurrence.

R. Bradley pointed out that the Wisconsin Supreme Court has for decades interpreted Article I, Section 1 to provide protection that’s substantially analogous to the protection provided by the Equal Protection Clause.

Justice Dallet’s concurrence, Justice R. Bradley wrote, “invites litigants to ask this court to invent constitutional rights.”