The Government Says He’s a Good Dad. Why Won’t They Let Him Adopt?

In Wisconsin, it’s legal for single people to adopt children—and it’s legal for married couples to adopt children—but state law forbids a single person who has a stable, loving relationship with a child’s parent from adopting that child legally. This bizarre and self-contradictory law is the subject of a petition to the U.S. Supreme Court filed today by members of the Goldwater Institute’s American Freedom Network of pro bono attorneys and Latham & Watkins LLP. We ask the Supreme Court to take up the case and vindicate the rights of adoptive (or would-be adoptive) families—and to clarify the constitutional rule against arbitrary discrimination.

The case involves a couple, known as A.M.B. and T.G., who have been together for years but who have chosen for their own reasons not to marry. A.M.B. has a teenaged daughter (called M.M.C. in the case) and the pair have raised her together. M.M.C. thinks of T.G. as her dad—and the family would like to legally formalize that relationship. But Wisconsin law forbids that—not because T.G. is unfit; on the contrary, the state admits that he would make a good dad and that it would be in the “best interests of the child” for the adoption to go through. But Wisconsin law prohibits the unmarried partner of a parent from adopting that person’s child.

It’s not that unmarried people can’t adopt—on the contrary, Wisconsin law allows that. But if an unmarried person is in a relationship with the child’s parent, so that the child considers him her father…that’s not allowed.

Amazingly, the Wisconsin Supreme Court held that this discrimination passes constitutional muster. Using so-called “rational basis scrutiny”—a lenient form of judicial review that’s inherently biased in favor of the government—the state judges said the prohibition “serve[s] the legitimate state interest in promoting the adoption of children into stable, marital families.” But that’s senseless, because the law does not prohibit unmarried people from adopting—it expressly permits it. Yet if an unmarried person is in a stable long-term relationship with the parent, adoption is prohibited—even if, as in this case, the state admits that the adoption would be in the child’s best interests. In other words, the law is utterly self-contradictory. And self-contradictory laws are supposed to violate even the lenient “rational basis” test.

In a petition for certiorari filed today by Goldwater and Latham & Watkins, we have urged the justices to take up this case on behalf of A.M.B. and T.G. to vindicate the rights of children and of parents themselves, such as A.M.B., who should have the right to decide whether her partner adopts her child legally—and to explain how the “rational basis” rule is actually supposed to work. Remarkably, nearly a century after the court invented the “rational basis” test, it has never actually explained that—leading to contradictions and confusions that put our most basic constitutional rights at risk.

You can read our brief here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.