State’s highest court maintains law against unmarried adoptions

Unmarried people cannot adopt the children of their partners, regardless of how well established they are as parental figures, the Wisconsin Supreme Court ruled Tuesday.

State law clearly states that unmarried partners aren’t eligible to adopt their partners’ children, the justices agreed. But while the decision was unanimous, the Court’s liberal and conservative wings split in their concurrences. 

The four liberal justices called into question the grounds for the ruling despite having signed on to it. Meanwhile, the three conservative justices warned against a suggestion from three of the liberals that Wisconsin’s Constitution might be interpreted more broadly to open the door to questioning the current state law.

The court case from Ashland County involved a biological mother, her child, and her male unmarried partner of more than a decade. The man “has become a father figure” for the child “and has assumed a variety of parental duties for her,” the Court’s opinion states. After the man petitioned to adopt the child, a  county human services department report had recommended the court grant the adoption.

State law, however, limits adoption rights to “a husband and wife jointly,” the spouse of a parent, or “an unmarried adult.” A circuit court judge denied the adoption, and the couple then petitioned to bypass the state appeals court to take the issue straight to the Wisconsin Supreme Court.

“The statutes do not allow two unmarried adults to jointly adopt a minor,” states the Court’s unanimous opinion, written by Justice Rebecca Bradley. “Nor do the statutes permit a nonmarital partner to adopt his partner’s child.”

The Ashland County couple had argued that state law preventing a parent’s unmarried partner or an unmarried couple from adopting violated the U.S. Constitution’s equal protection clause. The Court rejected that argument, declaring in the unanimous portion of the opinion that Wisconsin’s adoption laws “do not restrict a fundamental right or regulate a protected class.”

The ruling also asserts that “promoting stability for adoptive children through marital families suffices for the statutes to survive this equal protection challenge.” It states, “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.”

State law doesn’t prevent the mother from continuing her relationship with her partner and doesn’t prevent the partner from continuing to serve as a father figure to the child, the opinion adds in a footnote.

In a concurrence joined by Justices Ann Walsh Bradley and Janet Protaseiwicz, Justice Rebecca Dallet wrote that while she agreed that state law was rational and didn’t violate the federal Constitution, an argument challenging the law under the Wisconsin Constitution deserved more detailed consideration. 

The state constitution’s Article 1, Section 1, states, “All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.”

The members of the Court “have a long history of interpreting our constitution to provide greater protections for the individual liberties of Wisconsinites than those mandated by the federal Constitution,” Dallet wrote. 

She suggested that the couple might have developed — and failed to do so — an argument that would apply the Wisconsin Constitution more directly to challenge the state law, but invited future lawyers to pursue such arguments more vigorously.

Joined by Justices Annette Ziegler and Brian Hagedorn, Rebecca Bradley responded with a concurrence of her own attacking Dallet’s argument and calling it “an anti-democratic power grab.”

“Justice Dallet ultimately advocates for the discredited ‘practice of constitutional revision’ by a committee of four lawyers who happen to form a majority on the court,” Rebecca Bradley wrote.

Justice Jill Karofsky declined to join the Dallet concurrence, but in her own concurrence called on state lawmakers to rewrite the state’s adoption law. 

Agreeing that the challenged state laws “have a rational basis under the law,” Karofsky called that “a low bar for the state to clear.”

“Children can and do thrive in families with single, unmarried, or married parents.  This case is an excellent example of the second category,” Karofsky wrote, adding that “children can and do struggle in households with married parents.”

The assumptions in the ruling that married parents’ households are more stable is in large part due to laws that privilege marriage over other relationships, Karofsky wrote, and “the connection between the adoption statutes and a child’s best interest appears increasingly threadbare,” bolstered by “outdated… questionable and … self-perpetuating” assumptions.

“I urge the legislature to reform the adoption restrictions so that they truly support the best interest of every child,” Karofsky wrote.