Petition for Writ of Certiorari — A. M. B., et al., Petitioners v. Kelly J. McKnight, Presiding Judge, Circuit Court of Wisconsin, Ashland County

Supreme Court briefSep 26, 2024

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Supreme Court of tfje ^ntteti States;

A.M.B. AND T.G.,

Petitioners,

Circuit Court for Ashland County,

the Honorable Kelly J. McKnight, Presiding,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Wisconsin

PETITION FOR A WRIT OF CERTIORARI

Timothy Sandefur

Scharf Norton Center

for Constitutional

Litigation

Goldwater Institute

500 East Coronado Road

Phoenix, AZ 85004

Gregory G. Garre

Counsel of Record

Blake E. Stafford

Uriel Hinberg

Latham & Watkins LLP

555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Petitioners

QUESTION PRESENTED

Petitioners A.M.B. and T.G. have been in a

committed relationship for over a decade. Together,

they have raised M.M.C, A.M.B.’s biological daughter,

as their child. M.M.C.’s biological father was never a

serious part of M.M.C.’s life, and his parental rights

have been terminated. Everyone—including the

State of Wisconsin—acknowledges that it would be in

the best interests of M.M.C. for T.G. to adopt her,

giving her the legal father she currently lacks. Yet,

the Wisconsin Supreme Court disapproved that

adoption on the basis of a Wisconsin law that

categorically disqualifies unmarried people from

adopting the children of their partners, even though

Wisconsin law allows such second-parent adoption by

married people, and even though Wisconsin law

normally equates married and unmarried people for

the purposes of adoption. The question presented is:

Whether a State’s categorical disqualification of

unmarried people from adopting the children of their

partners violates the Equal Protection Clause of the

Fourteenth Amendment to the U.S. Constitution.

PARTIES TO THE PROCEEDINGS BELOW

Petitioners A.M.B. and T.G. were petitionersappellants in the Supreme Court of Wisconsin.

Respondent Circuit Court for Ashland County, the

Honorable Kelly J. McKnight, presiding, was

respondent in the Supreme Court of Wisconsin.

RELATED PROCEEDINGS

In the Interest of M.M.C., No. 22AD02, Circuit

Court for Ashland County, Wisconsin, order on

petition for adoption entered on July 11, 2022.

In the Matter of the Adoption ofM.M.C.: A.M.B. &

T.G. v. Circuit Court for Ashland County, the

Kelly

McKnight,

presiding,

Honorable

No. 2022AP1334, State of Wisconsin Court of Appeals

District III, petition to bypass court of appeals

granted on February 21, 2023.

In the Matter of the Adoption ofM.M. C.: A.M.B. &

T.G. v. Circuit Court for Ashland County, the

Honorable

Kelly

McKnight,

presiding,

No. 2022AP1334, Supreme Court of Wisconsin,

judgment entered on April 30, 2024.

Ill

TABLE OF CONTENTS

Page

QUESTION PRESENTED.............................

PARTIES TO THE PROCEEDINGS BELOW

RELATED PROCEEDINGS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED...........................

INTRODUCTION

STATEMENT OF THE CASE

A. Legal Background ...

B. Factual Background

C. Proceedings Below...

REASONS FOR GRANTING THE WRIT

THE CONSTITUTIONALITY OF STATE

LAWS CATEGORICALLY BANNING

ADOPTION BY A CLASS OF OTHERWISE

FIT ADULTS IS VITALLY IMPORTANT..... 11

II.

THE WISCONSIN SUPREME COURT’S

DECISION UPHOLDING WISCONSIN’S

CATEGORICAL BAN ON ADOPTION BY

THE UNMARRIED PARTNERS OF

BIOLOGICAL

PARENTS

INDEFENSIBLE

TABLE OF CONTENTS—Continued

Page

III. THE COURT’S REVIEW IS WARRANTED

GIVEN THE PROFOUNDLY IMPORTANT

INTERESTS

STAKE

AND

CONFUSION OVER THE MINIMUM

REQUIREMENTS OF RATIONAL BASIS

REVIEW................................. .......................... 26

CONCLUSION

APPENDIX

Public Material

(Appended to Petition)

Opinion of the Supreme Court of Wisconsin,

A.M.B., T.G. v. Circuit Court for Ashland

County, 5 N.W.3d 238 (Wis. 2024)..............

U.S. Const, amend. XIV, § 1...............................

47a

Wis. Stat. § 48.81.................................................

48a

Wis. Stat. § 48.82.................................................

49a

Wis. Stat. § 48.88(2)(aj)........................................

50a

Wis. Stat. § 48.91(3).............................................

52a

Wis. Stat. § 48.92(1), (2).......................................

53a

Under Seal Material

(Supplemental Appendix Volume)

Transcript of Adoption Hearing held June 22,

2022, In re M.M.C., No. 22-AD-02 (Circuit

Ct. Wis.)...........................................................

54a

TABLE OF CONTENTS—Continued

Page

Order of Petition for Minor Child Adoption, In

No. 22-AD-02 (Circuit Ct. Wis.

July 11, 2022)..................................................

63a

Multipurpose Home Study Report - Couples /

Singles, In re M.M.C., No. 22-AD-02

(Circuit Ct. Wis. Filed June 13, 2022)

(excerpts).........................................................

66a

TABLE OF AUTHORITIES

Page(s)

CASES

In re Adoption of Child

ex rel. J.M.G., 632 A.2d 550 (N.J. Super.

Ct. Ch. Div. 1993)......................................

In re Adoption of K.R.S.,

109 So.3d 176 (Ala. Civ. App. 2012)........

Adoption of Tammy,

619 N.E.2d 315 (Mass. 1993)...................

In re Adoption of Zschach,

665 N.E.2d 1070 (Ohio), cert, denied,

519 U.S. 1028(1996).................................

In re Agnew,

144 F.3d 1013 (7th Cir. 1998)..................

Arceneaux v. Treen,

671 F.2d 128 (5th Cir. 1982).....................

B.P. v. State (In re Adoption of Luke),

640 N.W.2d 374 (Neb. 2002)....................

Berger u. City of Mayfield Heights,

154 F.3d 621 (6th Cir. 1998)....................

Borden’s Farm Products Co. v. Baldwin,

293 U.S. 194 (1934)...................................

City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985)

17, 19, 26, 28

Clark v. Jeter,

486 U.S. 456 (1988)

Vll

TABLE OF AUTHORITIES—Continued

Page(s)

Doe v. Pennsylvania Board of Probation &

Parole,

513 F.3d 95 (3d Cir. 2008).....................

F.S. Royster Guano Co. v. Virginia,

253 U.S. 412 (1920).................................

Georgina G. v. Terry M. (In re Angel Lace

M.),

516 N.W.2d 678 (Wis. 1994).................

Glona v. American Guarantee & Liability

Insurance Co.,

391 U.S. 73 (1968)..................................

23, 24

Gulf, Colorado & San Francisco Railway

Co. v. Ellis,

165 U.S. 150 (1897)................................

Hadix v. Johnson,

230 F.3d 840 (2000)...............................

Heffner v. Murphy,

745 F.3d 56 (3d Cir.), cert, denied,

574 U.S. 871 (2014)................................

Hettinga v. United States,

677 F.3d 471 (D.C. Cir. 2012),

cert, denied, 568 U.S. 1209 (2013).......

18, 30

Hooper v. Bernalillo County Assessor,

472 U.S. 612 (1985)................................

17, 28

Hughes v. Alexandria Scrap Corp.,

426 U.S. 794 (1976)................................

Vlll

TABLE OF AUTHORITIES—Continued

Page(s)

In re Jacob,

660 N.E.2d 397 (N.Y. 1995)...............

12, 13

Johnson v. California,

543 U.S. 499 (2005)..............................

King v. State,

818 N.W.2d 1 (Iowa 2012)..................

18, 29

Lawrence v. Texas,

539 U.S. 558 (2003).............................

Lindsley v. Natural Carbonic Gas Co.,

220 U.S. 61 (1911)...............................

Loving v. Virginia,

388 U.S. 1 (1967).................................

Matthews v. Lucas,

427 U.S. 495 (1976).............................

May v. Anderson,

345 U.S. 528 (1953).............................

Meadows v. Odom,

360 F. Supp. 2d 811 (M.D. La. 2005),

vacated as moot, 198 F. App’x 348

(5th Cir. 2006).....................................

Merrifield v. Lockyer,

547 F.3d 978 (9th Cir. 2008)..............

20, 21

Meyer v. Nebraska,

262 U.S. 390 (1923).............................

Moore v. City of East Cleveland,

431 U.S. 494(1977)........................

26, 27

TABLE OF AUTHORITIES—Continued

Page(s)

Mugler v. Kansas,

123 U.S. 623 (1887)...... ........................

17, 29

Nordlinger v. Hahn,

505 U.S. 1 (1992)...................................

15, 16

Patel v. Texas Department of Licensing

& Regulation,

469 S.W.3d 69 (Tex. 2015)...................

18, 30

Powers v. Harris,

379 F.3d 1208 (10th Cir. 2004),

cert, denied, 544 U.S. 920 (2005).........

Racing Association of Central Iowa u.

Fitzgerald,

675 N.W.2d 1 (Iowa), cert, denied,

541 U.S. 1086 (2004).............................

Romer v. Evans,

517 U.S. 620 (1996)................ ...............

18, 19

Ross v. State, Department of Revenue,

292 P.3d 906 (Alaska 2012).................

S.J.L.S. v. T.L.S.,

265 S.W.3d 804 (Ky. Ct. App. 2008)....

Smith v. Organization of Foster Families

for Equality & Reform,

431 U.S. 816 (1977)...............................

Stanley v. Illinois,

405 U.S. 645 (1972)...............................

15, 22, 27

Troxel v. Granville,

530 U.S. 57 (2000).................................

25, 27

TABLE OF AUTHORITIES—Continued

Page(s)

Trujillo v. City of Albuquerque,

965 P.2d 305 (N.M. 1998).....................

United States Department of Agriculture

v. Moreno,

413 U.S. 528 (1973)................................

24, 26, 28

United States Railroad Retirement Board

u. Fritz,

449 U.S. 166 (1980)................................

28, 29

United States v. Sahhar,

917 F.2d 1197 (9th Cir. 1990),

cert, denied, 499 U.S. 963 (1991)..........

Vacco v. Quill,

521 U.S. 793 (1997)................................

Weber v. Aetna Casualty & Surety Co.,

406 U.S. 164(1972)................................

23, 25

Zablocki v Redhail,

434 U.S. 374 (1978)................................

Zobel v. Williams,

457 U.S. 55 (1982)..................................

FEDERAL CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S. Const, amend. XIV, § 1...............................

28 U.S.C. § 1257(a)

42 U.S.C. § 402(d)

42 U.S.C. § 416(e)

TABLE OF AUTHORITIES—Continued

Page(s)

STATE STATUTORY PROVISIONS

Ala. Code § 26-10A-27 (2023) (repealed by

Act 2023-92, § 5 (effective Jan. 1, 2024).....

Alaska Stat. § 25.23.130(a)(1)

Ariz. Rev. Stat. Ann. § 8-117(B)

Ark. Code Ann. § 9-9-204

Ark. Code Ann. § 9-9-215

Cal. Fam. Code § 3900

Cal. Fam. Code § 8616

Cal. Prob. Code § 6450(b)

Del. Code Ann. tit. 13, § 919

Fla. Stat. § 63.042(2)

Fla. Stat. § 63.172(b)

Ga. Code Ann. § 19-8-5

Haw. Rev. Stat. § 578-1

Haw. Rev. Stat. § 578-16(d)

Haw. Rev. Stat. § 578-16(e)(1)

Iowa Code § 600.4

Iowa Code § 600.13(4)

Xll

TABLE OF AUTHORITIES—Continued

Page(s)

Ky. Rev. Stat. Ann. § 199.520(2)

Minn. Stat. § 259.59, subd. 1

Minn. Stat. § 259.59, subd. la

Mo. Rev. Stat. § 453.010(4)

Mo. Rev. Stat. § 453.090(1)

N.C. Gen. Stat. § 48-l-106(c)

N.C. Gen. Stat. § 48-l-106(d)

N.D. Cent. Code § 14-15-14(l)(a)

N.M. Stat. Ann. § 32A-5-32

Nev. Rev. Stat. § 127.160

11, 12

Ohio Rev. Code Ann. § 3107.15(A)(1)(a)

S.D. Codified Laws § 25-6-17

Tex. Est. Code Ann. § 201.054

Tex. Fam. Code Ann. § 162.001(b)(2)

Utah Code Ann. § 78B-6-117(2)

Utah Code Ann. § 78B-6-117(3)

W. Va. Code § 48-22-703(a)

Wis. Stat. § 48.01(1)

TABLE OF AUTHORITIES—Continued

Page(s)

Wis. Stat. § 48.81

6, 9, 16

Wis. Stat. § 48.82

6, 9, 16, 21

Wis. Stat. § 48.82(l)(b)

4, 6, 13, 16, 21, 23

Wis. Stat. § 48.88(2)(a)

5,7

Wis. Stat. § 48.88(2)(aj)(l)

Wis. Stat. § 48.88(2)(aj)(2)

7, 22

Wis. Stat. § 48.88(2)(aj)(3)

Wis. Stat. § 48.89

Wis. Stat.§ 48.91

8, 22

Wis. Stat. § 48.91(3)

Wis. Stat. § 48.92

11, 12

Wis. Stat. § 48:92(1)

5, 12

Wis. Stat.§ 48.92(2)

Wis. Stat. § 48.92(3)

Wis. Stat. § 767.511

Wis. Stat. § 852.01

Wis. Stat. § 854.20

XIV

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

Randy E. Barnett, Scrutiny Land, 106

Mich. L. Rev. 1479 (2008)..................

Virginia L. Colin, U.S. Dep’t of Health &

Human Servs., Infant Attachment:

What We Know Now (June 1991),

https://aspe.hhs.gov/sites/default/files/

private/pdf773816/inatrpt.pdf...............

Nicole Devi, National Council for Adoption,

Foster Care and Adoption Statistics AFCARS Annual Update (Mar. 20,

2024), https://adoptioncouncil.org/

article/foster-care-and-adoptionstatistics/....................................................

Vera I. Fahlberg, A Child’s Journey through

Placement (1991).........................................

Robert C. Farrell, Successful Rational Basis

Claims in the Supreme Court from the

1971 Term Through Romer v. Evans, 32

Ind. L. Rev. 357 (1999)..............................

2 Joan Haifetz Hollinger, Adoption Law &

Practice (2024 online).............................

11, 12

TABLE OF AUTHORITIES—Continued

Page(s)

Eun Koh et al., National Council for

Adoption, Adoption by the Numbers

(2022), https://adoptioncouncil.org/wpcontent/uploads/2022/12/Adoption-bythe-Numbers-National-Council-ForAdoption-Dec-2022.pdf...........................

Clark Neily, No Such Thing: Litigating

Under the Rational Basis Test, 1 NYU

J.L. & Liberty 898 (2005).....................

PETITION FOR A WRIT OF CERTIORARI

Petitioners A.M.B. and T.G. respectfully petition

this Court for a writ of certiorari to review the

judgment of the Supreme Court of Wisconsin in this

case.

OPINIONS BELOW

The opinion of the Wisconsin Supreme Court

(App. la-46a) is reported at 5 N.W.3d 238. The

district court’s oral ruling (App. 54a-62a) and order

denying the petition for adoption (App. 63a-65a) are

unreported.

JURISDICTION

The Wisconsin Supreme Court entered a final

judgment in this case on April 30, 2024 (App. la-46a).

On July 25, 2024, Justice Barrett extended the time

to file the petition for a writ of certiorari until

September 27, 2024. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional and statutory

provisions are set forth in the appendix to this

petition. App. 47a-53a.

INTRODUCTION

This case presents a fundamental question

concerning the Fourteenth Amendment’s guarantee

of equal protection when it comes to laws in nearly

half the States standing between the individual and

one of the most important aspects of life—family.

Petitioners A.M.B. and T.G. are a committed

couple who have lived together and raised A.M.B.’s

biological daughter,

for more than a decade.

M.M.C.’s biological father was never a serious part of

her life, and his parental rights have been

terminated. T.G. seeks to adopt M.M.C., giving her

the legal father she currently lacks and legally

cementing petitioners’ family with M.M.C. After

conducting a comprehensive home study, the State of

Wisconsin not surprisingly found that it was in the

best interests of M.M.C. to be adopted by T.G. Yet,

the Wisconsin courts denied T.G.’s adoption petition

because—and only because—A.M.B. and T.G. have

chosen not to marry for deeply personal reasons that

have nothing to do with their commitment to one

another. As the courts explained, Wisconsin law

classifies married and unmarried people differently

for the purposes of adoption, permitting married

people to adopt their partners’ children, while

categorically barring unmarried people from doing so.

Applying an exceedingly lax form of rational basis

review, the Wisconsin Supreme Court upheld the

State’s categorical ban against adoption by unmarried

people under the Equal Protection Clause of the

United States Constitution and so barred M.M.C.’s

adoption. App. la-2a. The court reasoned that it was

reasonable for the State to enact a categorical ban

against adoption by unmarried partners because “[a]

child joining a family with married parents enjoys a

greater likelihood of a financially stable upbringing

compared to a household with two unmarried

parents.” Id. at 19a. As one justice acknowledged,

however, “the logical threads” of the court’s reasoning

“begin to shred under the weight of any sincere

scrutiny.” Id. at 41a (Karofsky, J., concurring).

This case urgently warrants this Court’s review.

The decision below presents the extraordinarily

important constitutional question of whether, or

when, the Equal Protection Clause permits a State to

categorically disqualify a class of otherwise fit,

potential adoptive parents on the sole basis of their

choice not to get married. Approximately half the

States have laws similar to Wisconsin’s, categorically

disqualifying otherwise fit adults from adopting the

biological children of their partners and becoming

second legal parents to those children. No adult, or

child, should be denied the blessings and legal

benefits of a parent-child relationship based solely on

a decision not to marry. Yet, despite the crucial need

for fit individuals willing to adopt, States like

Wisconsin have enacted unconstitutional bans like

the one at issue here, irrationally blocking adoptions

even when they are in the best interests of the child.

Given the extraordinarily important interests at

stake, this Court’s intervention is warranted.

The Wisconsin Supreme Court’s decision is also

indefensible on the merits. Wisconsin’s categorical

ban bears at least two hallmarks of irrationality

recognized by this Court. First, instead of advancing

the asserted state interest of providing adopted

children with a more stable home, the ban actually

undermines that interest by preventing adoptions

that are concededly in the best interests of the child.

Second, Wisconsin’s statutory scheme is self

contradictory.

Wisconsin generally permits “an

unmarried adult” to adopt children, and does not even

give any automatic preference to a married adult over

an unmarried one. Wis. Stat. § 48.82(l)(b).

The exceedingly lax review applied by the

Wisconsin Supreme Court is particularly egregious

considering that the legislative classifications at issue

inhibit a host of personal relationships, discriminate

against non-traditional family structures, and

penalize children for choices made by adults, over

which the children have no control. Those are all

areas in which this Court has never hesitated to apply

more probing scrutiny. However lenient rational

basis review may be, it must still be meaningful.

Indeed, that review is a fail-safe against countless

classifications, including those—like the one at issue

here—that affect the most important and

fundamental relationships and personal interests.

The Court should grant review to decide the

exceptionally

important

question

presented.

Granting review would also provide this Court with a

clean, much-needed opportunity to clarify the

minimum requirements for rational basis review, an

issue that Justices of this Court have recognized

warrants further guidance and that has vexed lower

courts and confounded scholars. Guidance is needed

to ensure that rational basis review remains

meaningful, not a rubber-stamp of legislative

classifications no matter how unreasonable and

unsupported they are.

The petition should be granted.

STATEMENT OF THE CASE

A. Legal Background

In Wisconsin (as in other States), adoption is a

“creature of statute,” which “confers legal rights and

duties on adopted children and their adoptive

parents.” App. la. Most fundamentally, adoption

creates a legal parent-child relationship between the

adoptive parent and the adopted child. Thus, after an

“order of adoption is entered,” “the relation of parent

and child and all the rights, duties and other legal

consequences of the natural relation of child and

parent thereafter exists between the adopted person

and the adoptive parents.” Wis. Stat. § 48.92(1).

The “paramount consideration” of Wisconsin’s

adoption statute (and of all its laws pertaining to the

treatment of children more generally) is—and has

always been—the “best interests of the child.” Id.

§ 48.01(1). Accordingly, Wisconsin law directs courts

to grant a petition for adoption only after determining

that the adoption “is in the best interests of the child.”

Id. § 48.91(3). In making that determination, the

court is aided by “an investigation,” conducted by a

government agency, aimed at ascertaining “whether

the petitioner’s home is suitable for the child,”

including “whether the petitioner is fit and qualified

to care for the child” and “displays the capacity to

successfully nurture the child.” Id. § 48.88(2)(a),

(aj)(l).

Despite the singular focus of adoption law on the

best interests of the child, Wisconsin has enacted laws

categorically disqualifying one class of individuals

from adopting, based solely on their choice to exercise

their right not to marry. The result is a strange

discrepancy. In Wisconsin, an unmarried adult may

adopt a child. Id. § 48.82(l)(b). And if a child lives

with one of his or her biological parents and the other

parent is deceased (or the other parent’s parental

rights have been terminated), then “the spouse of the

child’s parent” may adopt the child and become a

second legal parent for the child (provided a court is

satisfied that this is in the child’s best interests). Id.

§§ 48.81, 48.82. But the unmarried partner of the

child’s parent is categorically disqualified from

adopting the child and becoming her second legal

parent—even when, as the lower courts found here,

such adoption would be in the best interests of the

See id. § 48.82; App. 5a, 20a; see

child.

Wis. Stat.§ 48.92(2) (adoption results in cessation of

legal relationship with birth parent “unless the birth

parent is the spouse of the adoptive parent”).

B. Factual Background

1. The relevant facts of this case are undisputed.

M.M.C., who is now fifteen years old, has always lived

She was

with her biological mother, A.M.B.

abandoned by her biological father and has long had

no “meaningful relationship” with him. App. 4a. His

parental rights have been terminated. Id.

A.M.B.’s male partner, T.G., has filled the void left

by M.M.C.’s absent biological father. For over a

decade, T.G. and A.M.B. have lived together in a

committed, non-marital relationship, raising M.M.C.

as their child and as part of a family. Id. They have

chosen not to formally marry for deeply held personal

reasons related in part to their own histories growing

up in families with broken marriages.

T.G. has “assumed a variety of parental duties” as

to M.M.C., id. at 4a, and has “demonstrated

dedication and commitment” to her, id. at 42a

(Karofsky, J., concurring). T.G. and M.M.C. have

strong emotional and psychological bonds. Because

T.G. has raised M.M.C. as his daughter with selfless

dedication, she “views T.G. as her father.” Id. at 4a5a; see id. at 73a.1

2. In January 2022, A.M.B. and T.G. sought legal

recognition of “T.G.’s fatherly bond and relationship

with M.M.C.” by filing a petition to adopt M.M.C. Id.

at 4a. In response, the Ashland County Department

of Human Services (DHS) conducted a Multipurpose

Home Study Report “to determine whether [M.M.C.]

[wa]s a proper subject for adoption and whether

[A.M.B. and T.G.’s] home [wa]s suitable for [M.M.C.].”

Wis. Stat. § 48.88(2)(a); App. 66a-94a. Such reports

are required under Wisconsin law and “provide” a

“comprehensive” “qualitative evaluation of a

petitioner’s personal characteristics, civil and

criminal history, age, health, financial stability, and

ability to responsibly meet all [additional]

requirements.” Wis. Stat. § 48.88(2)(aj)(2).

As part of its investigation, DHS conducted

lengthy interviews with A.M.B., T.G., and M.M.C.

During those interviews M.M.C. (who was then 13years old) reported that she regards T.G. as her only

father and wishes to be adopted by T.G. as his legal—

and permanent—daughter. App. 75a.

After completing its investigation, DHS

recommended that the adoption petition be approved.

App. 93a; see Wis. Stat. § 48.89; App. 87a, 89a, 91a,

1 Additional facts concerning T.G.’s close relationship with

M.M.C. and the loving and secure home that T.G. and A.M.B.

have created for M.M.C. are set forth in the Home Study Report

conducted by the State. See App. 66a-94a.

93a (discussing DHS’s findings as to the loving home

A.M.B. and T.G. have provided for M.M.C.).

C. Proceedings Below

1. On June 22, 2022, the Circuit Court of Ashland

County conducted a hearing on the petition to adopt

M.M.C. App. 54a-62a; see Wis. Stat. § 48.91. The

court noted that it had reviewed the home study and

concluded that adoption of M.M.C. by T.G. was

undoubtedly in M.M.C.’s best interests. App. 56a.

Yet, the court was compelled to reject the petition

because A.M.B. and T.G. have chosen not to marry.

The court explained that while Wisconsin law permits

second-parent adoption by the spouse of a child’s

parent, it categorically bans such adoption by the

unmarried partner of a child’s parent. Id. The court

also explained that any contrary reading

of Wisconsin’s adoption statute is foreclosed

by Wisconsin Supreme Court precedent,

Id.

(summarizing Georgina G. v. Terry M. (In re Angel

LaceM.), 516 N.W.2d 678, 682 (Wis. 1994)).

On July 11, 2022, the circuit court issued an order

denying the petition to adopt M.M.C. App. 63a-65a.

The order reiterated that T.G. is otherwise fit and

that the adoption would be in the best interests of

M.M.C. Id. at 64a. Yet, the court was compelled to

deny the petition under Wisconsin law because T.G.

is not married to A.M.B. Id. at 64a-65a.

2. T.G. and A.M.B. appealed to the Wisconsin

Court of Appeals. But because the court of appeals

was itself bound by Angel Lace (which also foreclosed

their constitutional arguments), T.G. and A.M.B.

then petitioned the Wisconsin Supreme Court for

bypass of the Court of Appeals, which the state

Supreme Court granted. Id. at 5a-6a.

As relevant here, petitioners argued that the

denial of the petition to adopt M.M.C. violated

T.G and M.M.C’s federal equal protection rights. Id.

More specifically, they argued that

at 5a.2

Wisconsin’s adoption statute violates the Equal

Protection Clause of the United States Constitution

by (1) excluding the child of a parent in an unmarried

relationship from the category of children “[w]ho may

be adopted” while including the child of a parent in a

married relationship in that category; and

(2) excluding the unmarried partner of a child’s

parent from the category of adults “[w]ho may adopt”

a child, while including the married partner of a

child’s parent in that category. Wis. Stat. §§ 48.81,

48.82.

3. On April 30, 2024, the Wisconsin Supreme

Court rejected petitioners’ equal protection challenge

to Wisconsin’s adoption statute and affirmed the

circuit court’s denial of the petition to adopt M.M.C.

App. la-22a. The court first explained that “the

legislative classifications restricting adoption” are

subject only to “rational basis” review because they

“do not infringe a fundamental right or affect a

protected class.” Id. at 22a. The court then held that

the classifications survive that test “[bjecause the

state has a legitimate interest in promoting stability

for adoptive children through marital families,” so a

“rational basis exists” for the classifications. Id.

2 Petitioners also argued that Wisconsin’s classifications

violate Article I, Section 1 of the Wisconsin Constitution, but the

Wisconsin Supreme Court rested its decision exclusively on its

interpretation of the federal Constitution, based on its “general

principle” to treat “the United States and Wisconsin

Constitutions as consistent with each other in their due process

and equal protection guarantees.” App. 7a n.6 (citation omitted).

Justice Karofsky filed a separate concurring

opinion. Id. at 40a-46a. She explained that, in her

view, the “connection between the statutes and their

stated goal of promoting a child’s best interest” is

“specious” and rests on “nothing more than a fraying

tangle of dubious assumptions Q [and] circular

reasoning,” and “the logical threads” of the

classifications at issue “begin to shred under the

weight of any sincere scrutiny” Id. at 41a. Yet,

Justice Karofsky concurred in the result reached by

the court, reasoning that rational basis review is an

exceedingly “low bar” that is satisfied even by

“threadbare” connections between a challenged

classification and the purported state interest. Id.

at 46a.

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari for at least

three reasons. First, the decision below implicates an

extraordinarily important constitutional question

that affects access to adoption by otherwise fit

adults—and access by children to fit adults who wish

to assume the obligations (and blessings) of

parenting—in approximately half the States. Second,

the decision below employs an indefensibly lax form

of rational basis review to uphold a state classification

riddled with self-contradictions and other problems.

And, third, this case presents this Court with an ideal

opportunity to provide needed guidance about the

minimum requirements for rational basis review of

legislative classifications, including those impinging

on crucially important interests like family.

I. THE CONSTITUTIONALITY OF STATE

CATEGORICALLY

BANNING

LAWS

ADOPTION BY A CLASS OF OTHERWISE

FIT ADULTS IS VITALLY IMPORTANT

The context in which this equal protection case

arises—adoption—is instrumental to understanding

this case’s importance and the urgent need for this

Court’s review. For both potential adoptive parents

and potential adopted children, the availability of

adoption is literally life-changing. Adoptive parents

assume the solemn legal and moral responsibility to

care for children as their own. And adopted children

benefit from being in the loving, stable, and

supportive environment that adoptive parents can

provide. Successful adoptions are thus virtually

always—indeed, as a matter of law must be—in the

best interests of the child. Supra at 5. Adoption is

also critical to family, enriching the lives of parents,

as well as children and other family members.

The importance of adoption extends beyond the

creation of stable families for adopted children.

Under the typical adoption statute, adoption “is

recognized as the legal equivalent of biological

parenthood,” Smith v. Organization of Foster Fams.

for Equality & Reform, 431 U.S. 816, 844 n.51 (1977);

2 Joan Haifetz Hollinger, Adoption Law & Practice

§ 12.01 (2024 online) (describing the “legal

relationship created by an adoption” as “a complete

substitution of adoptive parents for birth parents for

all purposes”).3 This means that adopted children

enjoy the same legal benefits and rights that

biological children enjoy. For example, an adopted

3 See, e.g., Wis. Stat. § 48.92; Del. Code Ann. tit. 13, § 919;

Nev. Rev. Stat. § 127.160.

child has the same priority as a natural child with

respect to intestate succession, and an adoptive

parent is required to pay for the support and health

care expenses of an adopted child just like a parent

must pay such expenses for a natural child. Adoption

Law & Practice, supra, §§ 12.02-12.07.4 Likewise,

under federal law, adopted children are entitled to the

same social security benefits as biological children.

42 U.S.C. §§ 402(d), 416(e).

Second-parent adoption is no different,

addition to “providing] additional economic security,”

In re Adoption of Child ex rel.

632 A.2d 550,

551 (N.J. Super. Ct. Ch. Div. 1993), a legal

relationship between the child and the second parent

not only cements the family relationship but

“enable [s] [the child] to preserve her unique filial ties”

with the second parent in the event that her biological

parent dies or her two parents separate—as happens

in the case of married as well as unmarried

relationships. Adoption of Tammy, 619 N.E.2d 315,

320 (Mass. 1993). This allows the child “to achieve a

measure of permanency with both parent figures,” In

re Jacob, 660 N.E.2d 397, 399-400 (N.Y. 1995), and

prevents the child from “remain [ing] in legal limbo”

should any “issues of custody and visitation” arise.

Adoption of Tammy, 619 N.E.2d at 320-21.

The value of the “emotional security” that

adoption provides in such situations cannot be

4 With respect to intestate succession, see, e.g.,

Wis. Stat. §§ 48.92(1), (3), 852.01, 854.20; Nev. Rev. Stat.

§ 127.160; Cal. Prob. Code § 6450(b); Tex. Est. Code Ann.

§ 201.054. With respect to the requirement of an adoptive

parent to pay support, see, e.g., Wis. Stat. §§ 48.92, 767.511; Cal.

Fam. Code §§ 3900, 8616.

overestimated. In re Jacob, 660 N.E.2d at 399.

Stability and permanence are likely the most

important factors in a child’s emotional and

psychological flourishing. Vera I. Fahlberg, A Child’s

Journey through Placement 23-24 (1991). This is

particularly true for the very young. See, e.g.,

Virginia L. Colin, U.S. Dep’t of Health & Human

Servs., Infant Attachment: What We Know Now at ii

(June 1991), https://aspe.hhs.gov/sites/default/files/

priv ate/p df/73816/inatrpt.pdf

(“[E]arly

infant

attachment ... is at the heart of healthy child

development....”).

The importance of adoption is not only qualitative.

Approximately 100,000 children are adopted each

year in the United States.5 Many others await

adoption in foster care or other alternative child-care

arrangements.6 Some find themselves in homes, but

without the security that comes with adoption.

Accordingly, the need for States to maintain steady

pools of willing and fit adoptive parents is acute.

As noted above, supra at 5-6, although Wisconsin

allows unmarried single people to adopt, Wis.

Stat. § 48.82(l)(b), it categorically bans unmarried

people from adopting the children of their partners.

Approximately half of the States have similar laws

categorically preventing second-parent adoptions by

unmarried partners, despite the fact that “the goal of

5 Eun Koh et al., National Council for Adoption, Adoption

by the Numbers 5 (2022), https://adoptioncouncil.org/wpcontent/uploads/2022/12/Adoption-by-the-Numbers-NationalCouncil-For-Adoption-Dec-2022.pdf.

6 Nicole Devi, National Council for Adoption, Foster

Care and Adoption Statistics - AFCARS Annual Update

(Mar. 20, 2024), https://adoptioncouncil.org/article/foster-careand-adoption-statistics/.

adoption statutes is to protect the best interests of

children.” In re Adoption of Zschach, 665 N.E.2d

1070, 1073 (Ohio), cert, denied, 519 U.S. 1028 (1996).

Those States permit a married person to adopt the

child of his or her spouse and become the second legal

parent of that child, but categorically disqualify an

unmarried person from doing the same with the child

of his or her partner, without regard for whether such

adoption is in the best interests of the child.7

Such categorical disqualifications shrink the pool

of otherwise fit and loving adults who can adopt in

large swaths of the country—penalizing not just

potential adoptive parents, but the children who could

be adopted too. What is more, as this case well

illustrates, such laws bar adoption even when it is

clearly in the child’s best interests—as the State itself

determined here.

App. 56a.

This causes

immeasurable hardship to otherwise fit adults who

wish to adopt and to the children themselves, who are

7 See, e.g., Ala. Code § 26-10A-27 (2023) (repealed by Act

2023-92, § 5 (effective Jan. 1, 2024); In re Adoption ofK.R.S., 109

So.3d 176 (Ala. Civ. App. 2012); Alaska Stat. § 25.23.130(a)(1);

Ariz. Rev. Stat. Ann. § 8-117(B); Ark. Code Ann. §§ 9-9-204,-215;

Fla. Stat. §§ 63.042(2), 63.172(b); Ga. Code Ann. § 19-8-5; Haw.

Rev. Stat. §§578-1, 578-16(d), (e)(1); Iowa Code §§600.4,

600.13(4); Ky. Rev. Stat. Ann. § 199.520(2) S.J.L.S. v. T.L.S., 265

S.W.3d 804, 811-12 (Ky. Ct. App. 2008); Minn. Stat. § 259.59,

subds. 1, la; Mo. Rev. Stat. §§ 453.010(4), 453.090(1); B.P. v.

State (In re Adoption of Luke), 640 N.W.2d 374, 382-83 (Neb.

2002); N.C. Gen. Stat. § 48-1-106(c), (d); N.D. Cent. Code § 1415-14(l)(a); N.M. Stat. Ann. § 32A-5-32; Ohio Rev. Code Ann.

§ 3107.15(A)(1)(a); S.D. Codified Laws § 25-6-17; Tex. Fam. Code

Ann. § 162.001(b)(2); Utah Code Ann. § 78B-6-117(2), (3); W.

Va. Code § 48-22-703(a).

arbitrarily denied the practical, legal, and emotional

advantages of adoption and a second legal parent.

II. THE WISCONSIN SUPREME COURT’S

DECISION

UPHOLDING WISCONSIN’S

CATEGORICAL BAN ON ADOPTION BY

THE

UNMARRIED

PARTNERS

BIOLOGICAL PARENTS IS INDEFENSIBLE

The decision below is indefensible for several

reasons, and it cries out for this Court’s review.

1. The Equal Protection Clause of the United

States Constitution forbids any State from “denying]

any person within its jurisdiction the equal protection

of the laws.” U.S. Const, amend. XIV, § 1. Broadly

speaking, this provision “limits the authority of a

State to draw such ‘legal’ lines as it chooses.” Stanley

v. Illinois, 405 U.S. 645, 652 (1972) (citation omitted).

To that end, the Equal Protection Clause “embodies a

general rule” of non-discrimination requiring that all

legislative classifications be sufficiently justified.

Vacco v. Quill, 521 U.S. 793, 799 (1997).

Not all legislative classifications demand the same

level of justification. If a legislative classification

“jeopardizes exercise of a fundamental right or

categorizes on the basis of an inherently suspect

characteristic” (e.g., race), it is analyzed under strict

scrutiny, Nordlinger v. Hahn, 505 U.S. 1, 10 (1992),

which means that the classification needs to be

“narrowly tailored”

‘“further compelling

governmental interests,”’ Johnson v. California, 543

U.S. 499, 505 (2005) (citation omitted). If, however, a

classification does not jeopardize a fundamental right

and does not involve a suspect class, then it is subject

only to rational basis review—so the classification

need only “rationally further a legitimate state

interest.” Nordlinger, 505 U.S. at 10.8

Even the rational basis standard, however, “is not

a toothless one,” and it cannot be satisfied by

implausible justifications. Matthews v. Lucas, 427

U.S. 495, 510 (1976). As this Court admonished more

than a century ago, only “differences” that “furnish a

reasonable basis for separate laws” can “support class

legislation.” Gulf, Colo. & S.F. Ry. Co. v. Ellis, 165

U.S. 150, 155-56 (1897) (emphasis added).

All agree that Wisconsin’s ban on adoption by

unmarried people in committed relationships

presents a classic legislative classification amenable

to federal equal protection analysis. Under Wisconsin

law, a married person may adopt the child of his or

her spouse, while an unmarried person in a

committed relationship is categorically disqualified

from doing so—even when, as here, the adoption

would be in the best interests of the child.

Meanwhile, an

Wis. Stat. § 48.81; App. 56a.9

unmarried person who is not in a committed

relationship with a child’s parent can adopt.

Wis. Stat. § 48.82(l)(b).

A small group of discriminatory classifications—those

‘based on sex or illegitimacy”—are subject to “intermediate

scrutiny,” requiring that a classification be “substantially

related to an important governmental objective.” Clark v. Jeter,

486 U.S. 456, 461 (1988).

9 Two legislative classifications, which are the flip sides of

the same coin, are at issue here: (1) the omission of an

unmarried partner of a child’s parent from the category of adults

who may adopt a child, Wis. Stat.§ 48.82; and (2) the omission of

the child of a parent who is in an unmarried relationship from

the category of children who may be adopted. Id. § 48.81.

2.a. The Wisconsin Supreme Court’s decision

upholding the State’s categorical bar on secondparent adoption by otherwise fit, unmarried adults in

committed relationships flouts the minimum

constitutional requirements of equal protection, in

conflict with decisions of this Court and other federal

and state courts. In upholding that categorical bar,

the court applied an overly lenient form of rational

basis review, devoid of “any sincere scrutiny,” as

Justice Karofsky correctly pointed out. App. 41a.

That was wrong. While rational basis review is

the least rigorous form of equal protection scrutiny, it

remains an important protection, especially when it

comes to state laws intruding on personal liberty and

other critical interests—including family—based on

“arbitrary or irrational” distinctions. City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).

Even under the most deferential standard a state

classification is unconstitutional unless it “rationally

furthers a legitimate state purpose.” Hooper v.

Bernalillo Cnty. Assessor, 472 U.S. 612, 618 (1985)

(emphasis added). Thus, a State “may not rely on a

classification whose relationship to an asserted goal

is so attenuated as to render the distinction arbitrary

or irrational.” City of Cleburne, 473 U.S. at 446. As

the first Justice Harlan observed long ago, courts are

“under a solemn duty” to “give effect to the

[Constitution” by striking down laws that “purport Q

to have been enacted to protect the public health, the

public morals, or the public safety,” but in fact have

“no real or substantial relation to those objects.”

Mugler v. Kansas, 123 U.S. 623, 661 (1887).

Otherwise, rational basis review becomes a “rule

of law which makes legislative action invulnerable to

constitutional assault,” Borden’s Farm Prods. Co. v.

Baldwin, 293 U.S. 194, 209 (1934)—which it was

never meant to be, and which would constitute

“virtual abdication” of the judicial role, rather than

“genuine judicial inquiry,” Ross v. State, Dep’t of

Revenue, 292 P.3d 906, 910 n.ll (Alaska 2012)

(citation omitted); see King v. State, 818 N.W.2d 1, 86

(Iowa 2012) (Appel, J., dissenting) (explaining that

overly deferential rational basis review “tends to be

no review at all”); Hettinga v. United States, 677 F.3d

471, 482 (D.C. Cir. 2012) (Brown, J., concurring)

(explaining that excessive deference under rational

basis review “allows the legislature free rein to

subjugate the common good”), cert, denied, 568 U.S.

1209 (2013). A test that calls on judges to “rationalize

a basis” instead of meaningfully probing for an actual

“rational basis” is less demanding than “the straightface test”—and is thus no test at all. Patel v. Texas

Dep’t of Licensing & Regul., 469 S.W.3d 69, 112 (Tex.

2015) (Willett, J., concurring); see generally Randy E.

Barnett, Scrutiny Land, 106 Mich. L. Rev. 1479, 1485

(2008) (decrying version of rational basis review that

creates a presumption of constitutionality that is, “for

all practical purposes, irrebuttable”).

Here, the Wisconsin Supreme Court flouted those

principles. It upheld the classifications at issue on the

ground that they “serve the legitimate state interest

in promoting the adoption of children into stable,

marital families.” App. 22a. That undoubtedly is a

legitimate state interest, but the court never engaged

in any serious attempt to discern a real “link between

classification and objective,” as required under the

Equal Protection Clause. Romer v. Evans, 517 U.S.

620, 632 (1996). Had it done so, it would have realized

that, in reality, Wisconsin’s legislative classifications

undermine the very interest they purport to serve.

That is because in cases like this one (where the

child’s parent is in a committed relationship and her

partner seeks to adopt the child), the choice is not

between the child being adopted by her parent’s

spouse or her parent’s unmarried partner. Rather,

the question is whether the child will be adopted at

all, and thus be granted a second legal parent, or

whether the child will remain unadopted with a single

legal parent,

Under those circumstances,

categorically disallowing adoption leads to less

stability for the child, not more. By rubber-stamping

the State’s rationale, without even minimally testing

it, the court below permitted the State to “rely on a

classification whose relationship to [its] asserted goal

is so attenuated as to render the distinction arbitrary

or irrational,” City of Cleburne, 473 U.S. at 446, and

thus failed to “give[] substance to the Equal

Protection Clause.” Romer, 517 U.S. at 632.

The facts of this case vividly illustrate that

marriage, without more, is an inapt proxy for the

asserted state interest in stability for adopted

children. The State itself found that adoption by T.G.

would provide financial, physical, and emotional

security and would clearly be in M.M.C.’s best

interests. App. 56a, 66a-94a; supra at 8. Yet, the

State’s categorical disqualification of unmarried

people from second-parent adoption prevented

M.M.C.’s adoption from being approved, depriving her

of a second legal parent and leaving her in a less

stable situation that is necessarily not in her best

interests.

The connection between Wisconsin’s

classifications and the reasons offered for it are so

“attenuated” that they cannot avoid being labeled

“arbitrary or irrational.” City of Cleburne, 473 U.S. at

446.

b. Wisconsin’s categorical disqualification of

unmarried people from adopting their partners’

children fails rational basis for another fundamental

reason: it is self-contradictory. To survive rational

basis review, a legislative classification must, of

course, be rational. As this Court has explained,

while a legislature need not defend its legislative

choices with “statistical evidence,” those choice still

need to be based on “logical assumptions.” Hughes v.

Alexandria Scrap Corp., 426 U.S. 794, 812 (1976)

(emphasis added). Or, as the Ninth Circuit has put

it, the government “cannot hope to survive rational

basis review by resorting to irrationality.” Merrifield

v. Lockyer, 547 F.3d 978, 991 (9th Cir. 2008) (second

emphasis added). Statutory schemes that are self

contradictory are by definition irrational. At a

minimum, rational basis review must be able to ferret

out self-contradictory schemes.

The Merrifield case is illustrative. There, the

Ninth Circuit addressed the constitutionality of

California’s licensing requirements for pest

The law exempted certain pest

controllers.

controllers who do not use harmful pesticides (e.g.,

those who “engaged in the live capture” of “bats,

raccoons, skunks, and squirrels”) from the

requirement to obtain a license, while not exempting

other pest controllers (those who capture “mice, rats,

or pigeons”). Merrifield, 547 F.3d at 981-82. In an

opinion by Judge O’Scannlain, the court concluded

that this regulatory distinction was unconstitutional.

It explained that whatever rationale existed for

exempting pest controllers who capture skunks and

squirrels would exist for those who capture mice, rats,

and pigeons as well, so by excluding those who

capture mice, rats, and pigeons from the exemption,

the State “undercut its own rational basis for the

licensing scheme.” Id. at 992. Accordingly, the State

flunked “the principle of non-contradiction,” and the

regulatory scheme was “not supported by a rational

basis.” Id. at 991-92.

Wisconsin’s adoption classification likewise

violates the “principle of non-contradiction.” Id. at

991. The State bans the adoption of a child by the

unmarried partner of the child’s parent on the ground

that a child needs the stability of being in a married

home. App. 3a, 19a-20a. But the State permits

“an

adult.”

unmarried

adoption

Wis. Stat. § 48.82(l)(b). In fact, as a general matter,

an unmarried adult is treated equally to a married

person for the purposes of adoption: both are eligible

to adopt, neither is categorically deemed unfit based

on marital status, and no automatic preference is

given to one over the other. See id. Wisconsin cannot

justify its wholesale ban on second-parent adoption by

unmarried partners based on a rationale that the

statutory scheme itself plainly contradicts. Like the

statue in Merrifield, Wisconsin’s statute “undercuts]

its own rational basis.” 547 F.3d at 992.

c. Wisconsin’s ban on adoption by unmarried

partners conflicts with other aspects of the State’s

adoption regime, compounding its irrationality and

self-contradictory nature. In other respects, the

State’s adoption statutes eschews categorical

determinations and rests instead on individualized

determinations about whether a particular adoption

is in the child’s best interests. Indeed, the statutory

scheme does not even categorically disqualify felons,

drug addicts, or adults with serious psychological

conditions from adopting. See Wis. Stat. § 48.82.

That is as it should be, for the best-interests

determination is inherently individualized, and as

this Court said in Stanley, legal presumptions should

not substitute for the case-by-case specificity that a

child’s best interests require; to do so “needlessly risks

running roughshod over the important interests of

both parent and child.” 405 U.S. at 657.

In most respects, Wisconsin law tasks government

agencies and courts with accounting for the many

relevant factors as part of their individualized

investigations and determinations as to the best

interests of potential adoptive children. See Wis. Stat.

(requiring

“qualitative

§ 48.88(2)(aj)(2)-(3)

evaluation” of various factors, including the “civil and

criminal history” and “health” of a potential adoptive

parent, and permitting “a clinical assessment of the

petitioner’s mental health); id. § 48.91 (reiterating

individualized, multi-factor assessment).

Wisconsin’s categorical ban on adoption by

unmarried partners irrationally departs from that

case-specific, child-focused, and nuanced approach.

As with the presumption against unmarried fathers

that this Court found invalid under the Equal

Protection Clause in Stanley, 405 U.S. at 657, the law

here simply bans unmarried people from secondparent adoptions, regardless of the circumstances.

Such a sharp deviation from the individualized

assessments that are otherwise the linchpin of the

adoption statute “forecloses the determinative issues

of competence and care” and further undermines the

ban’s rationality. Id. at 656-57.

d. The Wisconsin Supreme Court relied in part on

the State’s interest in promoting marriage. App. 21a.

Obviously, States may, and do, condition certain

benefits on marriage, in order to encourage marriage.

But the statute here is at best conflicted on marriage,

since it permits unmarried adults to adopt in many

circumstances. Wis. Stat. § 48.82(l)(b). And, in any

event, there is a difference between carrots and

sledge-hammers. States may not penalize adults,

much less innocent children, in the extreme—and

patently coercive—form of a ban on the ability to

adopt a child based solely on a decision not to marry.

Cf. Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175

(1972) (explaining that punishing child for parents’

decision is “illogical and unjust”).

Marriage is a deeply personal and often religious

decision. The freedom to marry not only is a

fundamental right but also includes the freedom not

to marry. See Loving v. Virginia, 388 U.S. 1, 13 (1967)

(observing that the Fourteenth Amendment includes

“the freedom to marry, or not marry, a person of

another race” (emphasis added)). States may not use

their adoption laws to penalize the decision not to

marry by categorically deeming unmarried

individuals unfit to adopt. Cf. Zablocki v Redhail, 434

U.S. 374, 387 (1978) (States may not “interfere

directly and substantially with the right to marry”).

Instead of taking these interests into account, the

Wisconsin Supreme Court summarily declared that

Wisconsin’s “adoption statutes do not restrict a

fundamental right,” and then proceeded to apply an

overly lax form of rational basis review. App. 2a.

Moreover, whatever interest a State has in

promoting marriage in the abstract, the means

chosen here fail any applicable tailoring analysis,

because the connection between adoption and any

pro-marriage policy pursued by Wisconsin’s adoption

law is so attenuated. In Glona v. American Guarantee

& Liability Insurance Co., this Court held that a

Texas law banning mothers of illegitimate children

from recovering in tort for the deaths of their children

was unconstitutional in part because it was so

unlikely to discourage illegitimacy—and so, the

“causal connection” between end and means was too

“farfetched” to survive constitutional scrutiny. 391

U.S. 73, 75 (1968). The causal connection between

end and means is even more farfetched for

Wisconsin’s statute, particularly given that

Wisconsin law allows unmarried adults to adopt—

just so long as they are not trying to create a legal

family with the child of a loving, permanent partner.

short,

Wisconsin’s

categorical

e. In

disqualification of unmarried people from adopting

their partners’ children bears multiple indicia of

irrationality: it undermines the State’s own asserted

interest of providing children with stable adoptive

homes; it evinces a distrust of unmarried people for

the purposes of second-parent adoptions that is at

odds with the adoption statute’s general acceptance of

unmarried people as adoptive parents; and it is out of

step with the holistic, case-by-case adjudication with

which virtually all other characteristics are dealt

with. In other words, the classifications at issue are

“not only ‘imprecise,’ [they are] wholly without any

rational basis,” and are therefore unconstitutional.

U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 538

(1973).

3. The Wisconsin Supreme Court’s exceedingly

lax version of rational basis review is particularly

problematic given the nature of the classifications

and interests at issue in this case.

For one thing, by categorically disqualifying an

unmarried person from adopting his partner’s child,

Wisconsin’s adoption statute effectively “penalizes]”

the innocent child for the decision of two adults not to

marry, a decision over which the child has no control

and for which she bears no “individual responsibility.”

Weber, 406 U.S. at 175. Punishing children for such

decisions is “illogical and unjust,” not rational. Id. at

175-76.

In this case, M.M.C.’s punishment is

particularly cruel, as the Wisconsin Supreme Court

has barred an adoption that the State itself found to

be in M.M.C.’s best interests. Supra at 7-8.

For another thing, this case involves an intrusion

into many different intimate personal relationships:

the relationship between A.M.B. and her partner,

T.G.; the parent-daughter relationship between

A.M.B. and her daughter, M.M.C.; the relationship

between T.G. and M.M.C., which is functionally a

father-daughter relationship; and the familial

relationship among A.M.B., T.G., and M.M.C.

This Court has consistently demanded a fulsome

application of the rational basis test where, as here,

“the challenged legislation inhibits personal

relationships.” Lawrence u. Texas, 539 U.S. 558, 580

(2003) (O’Connor, J., concurring in the judgment).

The personal relationships here implicate familial

bonds and “the oldest of the fundamental liberty

interests recognized by this Court”—i.e., “the interest

of parents in the care ... and control of their

children”—which only heightens the constitutional

significance of those relationships.

Troxel v.

Granville, 530 U.S. 57, 65 (2000). The Wisconsin

Supreme Court’s analysis utterly failed to account for

these crucially important interests and, instead,

engaged in the most superficial kind of review.

Finally, the classifications at issue discriminate

against people and children in a non-traditional

family structure, where two adults have made a

deeply personal choice not to get married yet remain

committed to each other and their relationship. When

such discrimination is implicated, this Court has

never hesitated to engage in probing rational basis

review and to strike down legislative classifications,

in sharp contrast to what the Wisconsin Supreme

Court did here. See, e.g., Moreno, 413 U.S. at 535-36

(striking down statute disqualifying “otherwise

eligible households” from receiving food stamps solely

because those households “contain[ed] unrelated

members”); City of Cleburne, 473 U.S. at 432, 447-50

(striking down zoning ordinance “treating a home for

the mentally [disabled] differently” from homes with

other types of residents); cf. Moore v. City of East

Cleveland, 431 U.S. 494, 499 (1977) (explaining that

government intrusion “on choices concerning family

living arrangements” requires a court to “examine

carefully the importance of the governmental

interests advanced and the extent to which they are

served by the challenged regulation”).

The Wisconsin’s Supreme Court’s departure from

well-settled principles governing review of statutes

under the Equal Protection Clause warrants this

Court’s intervention, especially given the important

interests affected by the classifications at issue.

III. THE COURT’S REVIEW IS WARRANTED

GIVEN THE PROFOUNDLY IMPORTANT

INTERESTS AT STAKE AND CONFUSION

OVER THE MINIMUM REQUIREMENTS

OF RATIONAL BASIS REVIEW

The decision below implicates fundamentally

important interests involving the family, children,

and parental rights. Moreover, this case provides an

opportunity to provide much-needed guidance about

the minimal requirements of rational basis review, so

that lower courts do not persist in confusing rational

basis review with abdication of their duty to engage

in judicial review. This case is a clean vehicle for

doing so because the record is simple and undisputed,

the case turns entirely on the validity of the

classifications at issue, and the question presented

was the only issue litigated below.

1. The Constitution “protects the sanctity of the

family” because “the institution of the family is deeply

rooted in this Nation’s history and tradition.” Moore,

431 U.S. at 503. Consistent with that history and

tradition, this Court “has frequently emphasized the

importance of the family.” Stanley, 405 U.S. at 651.

Indeed, few interests are as important and

fundamental as those concerning the family, children,

and parents. See, e.g., Meyer v. Nebraska, 262 U.S.

390, 399 (1923) (describing the right “to marry,

establish a home[,] and bring up children” as

“essential to the orderly pursuit of happiness”);

Troxel, 530 U.S. at 65 (describing “the interest of

parents in the care, custody, and control of their

children” as “perhaps the oldest of the fundamental

liberty interests recognized by this Court”); May v.

Anderson, 345 U.S. 528, 533 (1953) (describing the

“right to the care, custody, [and] management” of

one’s children as “far more precious ... than property

rights”). The statutes at issue here—which are

replicated in similar form in roughly half the States

across the country—undermine those interests at the

expense of children, robbing them of loving adoptive

homes that are in their best interests. Given the

unquestionably important interests at stake, this

Court should, at a bare minimum, review the

constitutionality of Wisconsin’s classifications.

2. This case also presents an opportunity to

provide lower courts with badly needed guidance on

the minimum requirements of rational basis review.

A “necessary corollary to and implication of

rationality as a test is that there will be situations

where proffered reasons are not rational.” Doe v.

Pennsylvania Bd. of Probation & Parole, 513 F.3d 95,

112 n.9 (3d Cir. 2008). But the Wisconsin Supreme

Court applied a particularly lax version of rational

basis review, essentially abdicating its responsibility

to enforce the Constitution’s equal protection

guarantee. App. 17a-22a. Indeed, Justice Karofsky

stressed in her concurrence that the rationale for

Wisconsin’s legislative classifications is “specious”

and rests on “dubious assumptions!]”—but she read

this Court’s precedents as blessing this type of

analysis under rational basis review. Id. at 40-41a.

The decision below is thus emblematic of an

attitude toward rational basis scrutiny that has been

aptly described as a “virtual rubber-stamp” of

legislative action. Trujillo v. City of Albuquerque, 965

P.2d 305, 314 (N.M. 1998) (citation omitted). In

reality, “[t]he rational basis inquiry does not have to

be largely toothless,” id., as many of this Court’s cases

show, City of Cleburne, 473 U.S. at 446-50; Moreno,

413 U.S. at 533-38; Hooper, 472 U.S. at 621-24; Zobel

v. Williams, 457 U.S. 55, 61-63 (1982).

The truth is that this Court’s pronouncements on

the proper standard for reviewing equal protection

challenges to state classifications—as well as its cases

applying rational basis review—“ha[ve] not been

altogether consistent,” as this Court itself has

acknowledged. U.S. R.R. Ret. Bd. v. Fritz, 449 U.S.

166, 174 (1980). According to one formulation—which

demands a more robust analysis and tracks Justice

Harlan’s articulation in Mugler, 123 U.S. at 661—“for

a classification to be valid under the Equal Protection

Clause of the Fourteenth Amendment it ‘must rest

upon some ground of difference having a fair and

substantial relation to the object of the legislation.’”

Fritz, 449 U.S. at 174 (quoting F.S. Royster Guano Co.

v. Virginia, 253 U.S. 412, 415 (1920) (emphasis

added)). But according to another, looser formulation,

a classification is valid under the Equal Protection

Clause “if any state of facts reasonably can be

conceived that would sustain it.” Id. (emphasis

added) (quoting Lindsley v. Natural Carbonic Gas

Co., 220 U.S. 61, 78-79 (1911)). As the Court candidly

acknowledged in Fritz, even “[t]he most arrogant

legal scholar would not claim” that the Court’s cases

have “applied a uniform or consistent test” for

rational basis. 449 U.S. at 176 n.10.

This Court has never fully “resolved the tensions”

in its rational basis cases and pronouncements. King,

818 N.W.2d at 85 (Appel, J., dissenting); see generally

Robert C. Farrell, Successful Rational Basis Claims

in the Supreme Court from the 1971 Term Through

Romer v. Evans, 32 Ind. L. Rev. 357 (1999) (struggling

to present coherent theory that explains this Court’s

rational basis jurisprudence). As a result, rational

basis review functions as little more than “a Magic

Eight Ball that randomly generates different

answers” based on “who happens to be shaking it and

with what level of vigor.” Clark Neily, No Such

Thing: Litigating Under the Rational Basis Test,

1 NYU J.L. & Liberty 898, 898 (2005).

Leaving these tensions unresolved has led to

confusion and frustration in the lower courts. Lower

court judges have complained about the confusing and

illogical nature of rational basis review as actually

practiced by many courts, referring to it as

“a misnomer, wrapped in an anomaly, inside

a contradiction,” Patel, 469 S.W.3d at 98 (Willett, J.,

concurring), and as a form of judicial “abdicat[ion],”

Hettinga, 677 F.3d at 481 (Brown, J., concurring),

that amounts to judges “cup [ping] [their] hands over

[their] eyes.” Arceneaux v. Treen, 671 F.2d 128, 136

n.3 (5th Cir. 1982) (Goldberg, J., concurring).

With respect to confusion, the Tenth Circuit, for

example, has expressed uncertainty as to whether

rational basis cases in which this Court has engaged

in a more searching review represent “traditional”

rational-basis review, “a new category” of rationalbasis review, or “exceptions to traditional rational

basis review.” Powers v. Harris, 379 F.3d 1208, 122324 (10th Cir. 2004), cert, denied, 544 U.S. 920 (2005).

Meanwhile, the Sixth Circuit assures that “rational

basis review is not a rubber stamp,” Hadix v. Johnson,

230 F.3d 840, 843 (2000), and that it is deferential but

“not ‘toothless’,” Berger v. City of Mayfield Heights,

154 F.3d 621, 625 (6th Cir. 1998) (citation omitted).

The Ninth Circuit concedes that its rational basis

review “more or less” is a “a judicial rubber stamp.”

United States v. Sahhar, 917 F.2d 1197, 1201 n.5 (9th

Cir. 1990), cert, denied, 499 U.S. 963 (1991). And the

Seventh Circuit describes rational basis as not only

“deferential,” but also “toothless.” In re Agnew, 144

F.3d 1013, 1014 (7th Cir. 1998) (per curiam). The

circuits, in short, are all over the map.

This Court’s silence has also led to some lower

courts sanctioning clearly irrational laws under a

remarkably weak form of rational basis review that

has been accurately described as the “anything goes”

test. Arceneaux, 671 F.3d at 136 (Goldberg, J.,

concurring). In just one case, the Third Circuit

upheld a Pennsylvania ban on funeral establishments

serving “food or intoxicating beverages” on the ground

that contamination from the embalming procedure

might be unhealthy, while ignoring that the statute’s

tolerance of serving any non-alcoholic beverage

completely undermined and contradicted the

purported rationale. Heffner v. Murphy, 745 F.3d 56,

85-86 (3d Cir.) (citation omitted), cert, denied, 574

U.S. 871 (2014); see, e.g., Meadows v. Odom, 360 F.

Supp. 2d 811, 824-25 (M.D. La. 2005) (upholding

safety-training requirement for professional florists),

vacated as moot, 198 F. App’x 348 (5th Cir. 2006).

Review that tolerates such irrationality is no review.

The Equal Protection Clause is one of the most

important protections standing between liberty and

tyranny. While forgiving, rational basis review

remains a frontline protection for citizens against

countless government classifications. In reviewing

the decision below, this Court should take the

opportunity to clarify the proper standard for rational

basis review, ensuring that it remains a meaningful

inquiry, not a mere formality or an abdication of the

“obligation to safeguard constitutional values by

ensuring all legislation complies with those values.”

Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d

1, 9 (Iowa), cert, denied, 541 U.S. 1086 (2004).

3. This case provides a clean vehicle for resolving

the question presented and providing broader

guidance to lower courts. The factual record is simple

and undisputed, and the question presented was the

sole issue litigated below. Additionally, all agree that

the adoption of M.M.C. is in her best interests, as the

State itself has found. App. 56a; supra at 8. Thus,

only Wisconsin’s categorical ban on adoption by

unmarried partners stands in the way of T.G. and

A.M.B.’s adoption petition being granted. This case

presents a perfect opportunity to review the

constitutionality of that ban and to clarify the

minimal requirements of rational basis review.

Wisconsin, like nearly half the States, has erected

an irrational impediment to adoption by otherwise fit

adults in the form of a categorical ban on secondparent adoptions by unmarried people. In this case,

the Wisconsin Supreme Court’s decision upholding

that ban deprived a young girl, abandoned by her

biological father, of a loving and legal father, even

though the State determined that the adoption was

clearly in her best interests. That decision was the

product of an overly lax version of rational basis

review that has become all too common. This Court

should grant certiorari, reverse the decision below,

and make clear that rational basis review remains a

real protection against arbitrary government action.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Timothy Sandefur

Scharf Norton Center

for Constitutional

Litigation

Goldwater Institute

500 East Coronado Road

Phoenix, AZ 85004

Respectfully submitted,

Gregory G. Garre

Counsel of Record

Blake E. Stafford

Uriel Hinberg

Latham & Watkins LLP

555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory. garre@lw .com

Counsel for Petitioners

September 26, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.