A. M. B. v. Circuit Court for Ashland CountyA. M. B. v. Circuit Court for Ashland County
ATTORNEYS: For the petitioner-appellant, there were briefs filed by John R. Carlson, Carla J. Smith, Linda I. Coleman, and Spears, Carlson & Coleman, S.C., Washburn. There was an oral argument by Carla Jean Smith and John R. Carlson.
An amicus curiae brief was filed by Daniel R. Suhr, and Hughes & Suhr LLC, Chicago, IL, on behalf of Wisconsin Family Council.
APPEAL from a judgment and an order of the Circuit Court for Ashland County, Kelly J. McKnight, Judge. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. A creature of statute, adoption confers legal rights and duties on adopted children and
I. BACKGROUND
A. The Adoption Statutes
¶2
¶3 The adoption statutes additionally identify three classifications of individuals who may adopt an eligible child: “A husband and wife jointly,” “either the husband or wife if the other spouse is a parent of the minor,” or “an unmarried adult.”
¶4 The adoption subchapter also describes the legal effect of adoption on the child, the child‘s birth parents, and the child‘s adoptive parents.
B. Facts and Procedural History
¶5 A.M.B. is the biological mother of M.M.C. and maintains a cohabitating, nonmarital relationship with her male partner, T.G. After more than a decade in a relationship with A.M.B., T.G. has become a father figure for M.M.C. and has assumed a variety of parental duties for her. The parental
¶6 Prior to the adoption hearing, the county department of human services generated a “Home Study Report,” which included a background check of T.G., a review of T.G.‘s relationship with M.M.C., and an interview with M.M.C. The interview with M.M.C. revealed she did not have a meaningful relationship with her biological father and views T.G. as her father. The report concluded with a recommendation to grant the adoption.
¶7 On June 20, 2022, the circuit court held a hearing on the adoption petition. At the outset, the court raised concerns over its authority to grant the petition given the criteria for adoption under
¶8 A.M.B. and T.G. appealed the circuit court‘s decision, arguing that
¶9 The adoption statutes do not implicate a fundamental right under the United States or Wisconsin Constitutions, nor do the statutes affect a protected class of individuals. Accordingly, the statutory classifications establishing eligibility to adopt or to be adopted must be rationally related to a legitimate state interest in order to withstand A.M.B.‘s challenge. Because a rational basis exists for the legislature‘s policy choice to preclude an adoption by the nonmarital partner of a birth parent, we hold the statutes do
II. STANDARD OF REVIEW
¶10 A.M.B. and T.G. bring a facial challenge to the constitutionality of the adoption statutes on equal protection grounds. The constitutionality of a statute is a question of law this court reviews de novo. Blake v. Jossart, 2016 WI 57, ¶26, 370 Wis. 2d 1, 884 N.W.2d 484 (citing Aicher ex rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99, 613 N.W.2d 849). A party bringing a facial challenge to the constitutionality of a statute must show that the “State cannot enforce the law under any circumstances.” Id. (citing State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63).
III. ANALYSIS
¶11 The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution states, “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
¶12 In reviewing the constitutionality of a statute under an equal protection analysis, the court first identifies the appropriate level of scrutiny. State v. Alger, 2015 WI 3, ¶39, 360 Wis. 2d 193, 858 N.W.2d 346. We consider whether the statute implicates a fundamental constitutional right8 or “whether a suspect class is disadvantaged by the challenged legislation.” State v. Smith, 2010 WI 16, ¶12, 323 Wis. 2d 377, 780 N.W.2d 90. If either is true, the court generally applies strict scrutiny. Id.
A. Strict Scrutiny Does Not Apply
¶14 The adoption “legislative scheme does not affect a fundamental right and is not based on a suspect classification.” Georgina G., 184 Wis. 2d at 518. In Georgina G., this court resolved a similar constitutional challenge to the adoption statutes, holding that
The adoption statutes do not violate Annette‘s right to equal protection. Annette is eligible to adopt a child “whose parental rights have been terminated.” That is not the case here. In addition, if Annette were married, she would be eligible to adopt the child(ren) of her spouse. Again, that is not the case here. The Wisconsin legislature has enacted a statutory scheme for adoption that balances society‘s interest in promoting stable, legally recognized families with its interest in promoting the best
interests of the children involved. The adoption proposed in this case does not fall within the confines of this constitutionally valid legislative scheme.
Id. at 518-19. T.G. is ineligible to adopt M.M.C. for the same reason Annette was ineligible to adopt her partner‘s child: T.G. is not married to M.M.C.‘s mother. The court‘s reasoning in Georgina G. was sound, and we decline to overturn that precedent.9
¶15 The statutes do not implicate a fundamental right of either T.G. or M.M.C. A fundamental right is “deeply rooted in this Nation‘s history and tradition.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (citations omitted). Petitioners
¶16 As a preliminary matter, petitioners concede there is no fundamental right to adopt. “Adoption proceedings, unknown at common law, are of statutory origin and the essential statutory requirements must be substantially met to validate the proceedings.” Tennessen v. Topel, 32 Wis. 2d 223, 229, 145 N.W.2d 162 (1966); Eugene M. Haertle, Wisconsin Adoption Law and Procedure, 33 Marq. L. Rev. 37, 37 (1949). This court previously recognized adoption as a “relatively recent statutory development,” and not a practice traditionally protected by our society. Georgina G., 184 Wis. 2d at 516. The federal circuit courts that have addressed this question have uniformly held adoption is not a fundamental right. E.g., Adar v. Smith, 639 F.3d 146, 162 (5th Cir. 2011) (en banc); Lofton v. Sec‘y of Dep‘t of Child. & Fam. Servs., 358 F.3d 804, 811-12 (11th Cir. 2004); Lindley v. Sullivan, 889 F.2d 124, 131 (7th Cir. 1989).
¶17 A.M.B. and T.G. argue the adoption statutes must withstand strict scrutiny because they implicate the fundamental right to marriage. While marriage is undoubtedly a fundamental right, Loving v. Virginia, 388 U.S. 1, 12 (1967), these statutes do not implicate that right. The statutes do not compel10 A.M.B. and T.G. to marry, nor do the statutes prohibit them from
¶18 Far from impeding marriage, the adoption statutes privilege the institution. Historically, states have provided benefits to married couples while denying them to unmarried individuals. “Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; . . . [and] adoption rights . . . .” Obergefell v. Hodges, 576 U.S. 644, 669-70 (2015); Glucksberg, 521 U.S. at 721 (internal citation omitted) (“Our Nation‘s history, legal traditions, and practices thus provide the
¶19 Because adoption is not a fundamental right under our nation‘s history and tradition, and
¶20
Who may be adopted. Any child who is present in this state at the time the petition for adoption is filed may be adopted if any of the following criteria are met:
(1) Both of the child‘s parents are deceased.
(2) The parental rights of both of the child‘s parents with respect tо the child have been terminated under subch. VIII or in another state or a foreign jurisdiction.
(3) The parental rights of one of the child‘s parents with respect to the child have been terminated under subch. VIII or in another state or a foreign jurisdiction and the child‘s other parent is deceased.
(4) The person filing the petition for adoption is the spouse of the child‘s parent with whom the child and the child‘s parent reside and either of the following applies:
(a) The child‘s other parent is deceased.
(b) The parental rights of the child‘s other parent with respect to the child have been terminated under subch. VIII or in another state or a foreign jurisdiction.
¶21 A child is not eligible for adoption if she has an existing legal relationship with one of her parents. The statute provides but one exception to this rule: a stepparent may adopt the child of his spouse if the child‘s other parent is either deceased or his parental rights have been legally terminated.
¶22
(1) The following persons are eligible to adopt a minor if they arе residents of this state:
(a) A husband and wife jointly, or either the husband or wife if the other spouse is a parent of the minor.
(b) An unmarried adult.
¶23 If T.G. adopted M.M.C.,
After the order of adoption is entered the relationship of parent and child between the adopted person and the adopted person‘s birth parents and the relationship between the adopted person and all persons whose relationship to the adopted person is derived through those birth parents shall be completely altered and all the rights, duties, and other legal consequences of those relationships shall cease to exist, unless the birth parent is the spouse of the adoptive parent, in which case those relationships shall be completely altered and those rights, duties, and other legal consequences shall cease to exist only with respect to the birth parent who is not the spouse of the adoptive parent and all persons whose relationship to the adopted person is derivеd through that birth parent.
(Emphasis added). Allowing the unmarried partner of a birth parent to adopt his partner‘s child with the parental rights of the birth parent intact would flout
¶24 The statutory criteria establishing eligibility to adopt or to be adopted do not involve any protected classes. Instead,
B. The Statutory Classifications Have a Rational Relationship to the State‘s Interest in Promoting Stability for Adoptive Children.
¶25 Under rational basis review, this court will uphold legislаtively chosen classifications provided the legislature has “reasonable and practical grounds for the classifications that it draws.” State v. Quintana, 2008 WI 33, ¶79, 308 Wis. 2d 615, 748 N.W.2d 447 (citing McManus, 152 Wis. 2d at 130). A classification “does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.‘” Dandridge v. Williams, 397 U.S. 471, 485 (1970) (quoting Lindsley v. Nat. Carbonic Gas Co., 220 U.S. 61, 78 (1911)). In ascertaining the existence of a rational basis, the court is not
¶26 The United States Supreme Court has long recognized the significant societal benefits marriage provides. Obergefell, 576 U.S. at 669. The Obergefell Court explicitly acknowledged the significance of marriage for children in declaring, “[m]arriage . . . affords the permanency and stability important to children‘s best interests.” Id. at 668. Because marriage supplies these advantages, the state has long conferred benefits on married couples in return: “[J]ust as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union.” Id. at 669. Individual states “have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities.” Id. at 670. The Obergefell Court specifically included adoption rights among those a state may regulate based on marital status. Id.
¶27 The adoption statutory scheme creates reasonable eligibility criteria to promote the government‘s interest in children being adopted into stable, permanent home environments.
permits adoption if the parental rights of both parents have been terminated. A child with one living parent may be adopted by the spouse of the child‘s parent.
¶28 The state has a legitimate interest in ensuring children are adopted into “safe and stable families.”
¶29 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. In the event of a divorce, Wisconsin statutes create a presumption guaranteeing both marital partners leave the relationship on financially equivalent footing.
¶30 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. “A legislative classification satisfies rational basis review if any conceivable state of facts could provide a rational basis for the classification.” Alger, 360 Wis. 2d 193, ¶50 (cleaned up). Petitioners cannot overcome the rational basis for the classifications established in the adoption statutes. Wisconsin has a legitimate interest in preferring the stability and security of a marital household for the upbringing of adopted children. See Lofton, 358 F.3d at 819. The statute‘s classifications for whom may adopt a child reflects the state‘s interest in preferring stable and financially secure households for adoptive children.
¶31 Petitioners argue the state draws an arbitrary and irrational distinction by permitting a single, unmarried adult to adopt a child but not a cohabitating, unmarried partner. Compare
¶32 By allowing married couples to adopt but not unmarried couples, the state provides a benefit to married couples not afforded to unmarried couples. States “have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities.” Obergefell, 576 U.S. at 670. Precluding an individual from adopting his nonmarital partner‘s child merely makes marriage a basis for the adoption right, a classification rooted in our nation‘s history. Limiting adoption to married couples and single adults is neither irrational nor arbitrary because the state has legitimate reasons for the legislative classifications established under
¶33 Under rational basis review, the court does not judge the wisdom of the legislative classifications. Tomczak v. Bailey, 218 Wis. 2d 245, 265, 578 N.W.2d 166 (1998). Instead, we must uphold the statute‘s classification if there exists sоme rationale to justify it. Id. In establishing eligibility to adopt or to be adopted, the legislature chose to prioritize the stability of marriage for adopted children with one parent,
IV. CONCLUSION
¶34 The Supreme Court has declared, “equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” F.C.C. v. Beach Commc‘ns, Inc., 508 U.S. 307, 313 (1993). Because the legislative classifications restricting adoption do not infringe a fundamental right or affect a protected class, we consider only whether any rational basis exists for the legislative limits on eligibility to adopt a child. Because the state has a legitimate interest in promoting stability for adoptive children through marital families, petitioners’ equal protection challenge to Wisconsin‘s adoption statutes fails.
By the Court.—The judgment and order of the circuit court are affirmed.
¶36 Invoking state constitutional rights, however, has been out of vogue for some time. Such claims have sometimes been relegated to “second-tier status,” id. at 9, and an afterthought in legal briefs. Many commentators have noted the decline in the centrality of state constitutional claims as the United States Supreme Court federalized constitutional rights during the Warren Court era. E.g., Clint Bolick, Principles of State Constitutional Interpretation, 53 Ariz. St. L.J. 771, 774-75 (2021); Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 174-75 (1984). Over the course of the twentieth century, and especially in the 1960s, the Court incorporated most federal constitutional rights
¶37 In recent years, a newfound interest in asserting state constitutional rights has emerged, which, in theory, should benefit individual liberty. State constitutional rights are just as important and worthy of protection as federal constitutional rights. And this court has a duty to enforce the rights protected under the Wisconsin Constitution. State v. Halverson, 2021 WI 7, ¶23, 395 Wis. 2d 385, 953 N.W.2d 847
¶38 Not all arguments for enforcing state constitutional rights are rooted in text, history, and tradition; some stem from disappointment with the outcomes in certain United States Supreme Court decisions. Negative reaction to the Burger, Rehnquist, and Roberts Courts’ reluctance to “innovate” new federal constitutional rights, Sutton, supra, at 15, triggered a resurgence of interest by litigants and legal commentators in asking state courts to fill the gap. For example, in two famous law review articles, Justice William Brennan urged state courts to “step into the breach” created by the Court, William J. Brennan Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 503 (1977), and argued that “activist intervention[s]” into democratic governance are less problematic when done by state courts. Brennan, The Bill of Rights and the States, supra, at 551. The pressure on state courts to intrude on the democratic process has intensified with the Court‘s landmark decisions in Rucho v. Common Cause, 588 U.S. 684 (2019) (political gerrymandering), and Dobbs v. Jackson Women‘s Health Organization, 597 U.S. 215 (2022) (abortion).
¶40 It is not for judges to superimpose their values on the constitution. The Wisconsin Constitution‘s text “is the very product of an interest balancing by the people,” which
¶41 Justice Dallet attempts to conceal her call for an antidemocratic power grab with the illusion of inclusive language. She intimates that future generations must each decide for themselves what the constitution means in their time: “It is up to us—judges, lawyers, and citizens—to give effect to” the constitution‘s words today. Justice Dallet‘s concurrence, ¶59 (emphasis added). When the president of Wisconsin‘s 1848 convention said “the pages of our constitution . . . abound[] in the declaration of those great principles which characterize the age in which we live,” The Attainment of Statehood 883 (Milo M. Quaife ed., 1928), he did not mean to characterize the constitution as an empty vessel
“[The Wisconsin Constitution] abounds in the declaration of those great principles which characterize the age in which we live, and which, under the protection of Heaven, will—nay, must—guard the honor, promote the prosperity, and secure the permanent welfare of our beloved country.” Id.
¶42 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. Obergefell v. Hodges, 576 U.S. 644, 714 (2015) (Scalia, J., dissenting). Should a majority of this court—four lawyers—decide to imbue the constitution with modern meanings divorced from the constitutional text and the history and traditions of this state, they will rob the people of Wisconsin of their most important liberty: “the freedom to govern themselves.” Id. Although living constitutionalism is often couched in the rhetoric of flexibility and a purported need to adjust for a changing society, in practice it presents a grave threat to democracy by thwarting the people from passing legislation to accommodate changing views. Living constitutionalism invites lawyers donning robes to decide all the important issues of the day, removing their resolution from the political process altogether and depriving the people of any say in such matters. “In practice, the Living Constitution would better be called the
¶43 Justice Dallet‘s invitation to reimagine the constitution‘s text with a so-called “pluralistic approach”2 flies in the face of this court‘s established method of constitutional interpretation and should be rejected.3 As with statutory interpretation, the goal of constitutional interpretation is to ascertain the meaning of the constitutional text as it would have been understood by those who adopted it. Wis. Just. Initiative, 407 Wis. 2d 87, ¶21; State ex rel. Weiss v. Dist. Bd., 76 Wis. 177, 195-96, 44 N.W. 967 (1890); State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 184, 204 N.W. 803 (1925); B.F. Sturtevant Co. v. O‘Brien, 186 Wis. 10, 19, 202 N.W. 324 (1925); State ex rel. Bond v. French, 2 Pin. 181, 184 (Wis. 1849); State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Judges lack any
It is no part of the duty of this court to make or unmake, but simply to construe this provision of the constitution. All questions of political and governmental ethics, all questions of policy, must be regarded as having been fully considered by the convention which framed, and conclusively determined by the people who adopted, the constitution, more than 40 years ago. The oath of every official in the state is to support that constitution as it is, and not as it might have been.
Weiss, 76 Wis. at 208 (Cassoday, J., concurring).
¶44 Constitutional interpretation focuses on the text of the constitution: “The authoritative, and usually final, indicator of the meaning of a provision is the text—the actual words used.” Coulee Cath. Schs. v. LIRC, 2009 WI 88, ¶57, 320 Wis. 2d 275, 768 N.W.2d 868. Accordingly, “we look first to the plain meaning of the word[s] [of the constitution] in the context in which [they are] used.” Bd. of Ed. v. Sinclair, 65 Wis. 2d 179, 182, 222 N.W.2d 143 (1974). This court has often consulted dictionaries contemporaneous with the text‘s adoption to help ascertain its meaning. E.g., id.; Weiss, 76 Wis. at 212 (Cassoday, J., concurring). As in statutory interpretation,
¶45 The debates over a constitutional provision and the practices at the time of the provision‘s adoption also serve as guides in ascertaining the text‘s original public meaning. Wis. Just. Initiative, 407 Wis. 2d 87, ¶21; Sinclair, 65 Wis. 2d at 182-83. As explained in State ex rel. Owen v. Donald, 160 Wis. 21, 81, 151 N.W. 331 (1915), “we must strive by all means within our jurisdiction to put ourselves in the place the constitution makers occupied,—look at the situation they had in view through the same vista they observed it, and then read out of the term the meaning they sought to embody in it.”
¶46 Post-enactment construction of a constitutional provision by the other branches of government may also shed light on a provision‘s original public meaning. Sinclair, 65 Wis. 2d at 184; Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996); State ex rel. Kaul v. Prehn, 2022 WI 50, ¶49, 402 Wis. 2d 539, 976 N.W.2d 821 (statutes enacted “immediately after the 1848 constitution was ratified[] reveal[ed] a circumscribed understanding of the Governor‘s appointment power“). Legislative or executive action is given more weight if the action occurred shortly after the adoption of the
¶47 Any argument construing Article I, Section 1 of the Wisconsin Constitution to protect an asserted right must be grounded in the constitution‘s actual text and history. “Certainly, states have the power to afford greater protection to citizens under their constitutions than the federal constitution does.” State v. Roberson, 2019 WI 102, ¶56, 389 Wis. 2d 190, 935 N.W.2d 813 (citing Herb v. Pitcairn, 324 U.S. 117, 125 (1945)). But it cannot simply be assumed that the Wisconsin Constitution provides more protection for an asserted right than the Federal Constitution: “[T]he question for a
¶48 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER and Justice BRIAN HAGEDORN join this concurrence.
¶50 I write separately to address petitioners’ alternative equal protection challenge under Article I, Section 1 of the Wisconsin Constitution. Our constitution was written independently of the United States Constitution and we must interpret it as such, based on its own language and our state‘s unique identity. When we do so, there are several compelling reasons why we should read Article I, Section 1 as providing broader protections for individual liberties than the
I
¶51 Since the earliest days of our state‘s history, we have embraced our role as the principal interpreters of our state constitution. In Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567, 785 (1855), Justice Abram Smith said “The people then made this constitution, and adopted it as their primary law. The people of other states made for themselves constitutions which are construed by their own appropriate functionaries. Let them construe theirs—let us construe, and stand by ours.” And we have repeatedly declared
¶52 In fact, we 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. For example, we concluded that the Wisconsin Constitution guarantees the right to counsel at the state‘s expense in criminal cases more than 100 years before the United States Supreme Court recognized the same right in Gideon v. Wainwright, 372 U.S. 335 (1963). See Carpenter v. Dane County, 9 Wis. 274, 278 (1859). More than 40 years before Mapp v. Ohio, 367 U.S. 643 (1961), we held that suppression was the appropriate remedy for unlawful searches and seizures under our constitution. See Hoyer v. State, 180 Wis. 407, 415, 193 N.W. 89 (1923). And we have also said that when police deliberately violate a criminal defendant‘s Miranda1 rights, our constitution requires that the evidence be suppressed, even if the
¶53 As these examples illustrate, we have recognized greater protections for individual liberties in our constitution because it is meaningfully different than the federal Constitution. “All of the differences in our state constitutions are not accidents of draftsmanship. Some of these differences reflect differences in our tradition.” Shirley S. Abrahamson, Reincarnation of State Courts, 36 Sw. L.J. 951, 966 (1982). The Wisconsin Constitution reflects the unique features of our state and its laws, our history, and the “distinctive attitudes of [our] state‘s citizenry.” See Developments in the Law—The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1359-61 (1982). We must consider these differences—both textual and contextual—as part of the pluralistic approаch to state constitutional interpretation we have applied previously. See Wis. Justice Initiative, Inc. v. Wis. Elections Comm‘n, 2023 WI 38, ¶117, 407 Wis. 2d 87, 990 N.W.2d 122 (Dallet, J., concurring) (“We should analyze the . . . Wisconsin constitution[‘s] text and history carefully, but we should also be guided by precedent, context, historical practice and tradition, and the need to balance ‘the majority‘s values against the values that should be protected from society‘s majorities‘” (quoting another source)).
¶54 Even a cursory review of
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.
¶55 Aside from two shared words—“life” and “liberty“—
¶56 These textual differences are unsurprising when we consider the divergent historical contexts in which the clauses were developed and adopted. The language of
That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Virginia Declaration of Rights, § 1 (1776).
¶57 That language, and the language it also inspired in the overwhelming majority of other states’ constitutions,2 was “a statement of revolutionary, republican, egalitarian ideology . . . [b]ut it did not concern itself with the
III
¶58 Notwithstanding the many reasons to interpret our state constitution differently than the federal Constitution, litigants often overlook state constitutional claims, or fail to develop them fully. This case is a perfect example. Although petitioners argued that the adoption statutes at issue violate
¶59 That omission is somewhat understandable. Lawyers are surely more familiar with the extensive case law interpreting the
¶60 For the foregoing reasons, I respectfully concur.
¶61 I am authorized to state that Justices ANN WALSH BRADLEY and PROTASIEWICZ join this concurrence.
¶63 But in this case, the logical threads begin to shred under the weight of any sincere scrutiny. Here, we are left with the inescapable fact that the legally rational statutes prevented an adoption that all agree would have been in A.M.B.‘s best interest. This incongruent outcome exemplifies the specious connection between the statutes and their stated goal of promoting a child‘s best interest. At first glance the connection may seem neatly knitted together; however, closer inspection reveals nothing more than a fraying tangle of dubious assumptions, circular reasoning, and outdated values that fail to reflect the practical realities of modern family life. I write separately to call out these three fraying threads that
¶64 The first fraying thread connecting the adoption statutes to the best interest of a child is a set of dubiоus assumptions regarding the stability of marital families compared to non-marital families. To be clear, the state has a legitimate interest in making sure that legal decisions involving a child are made based on the best interest of that child. And there is no doubt that it is in a child‘s best interest to grow up in a safe and stable household. However, 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. There are many different family structures that create stability for children, and the statute‘s one-size-fits-all approach can actively work against the benefit of a child, as it did in this case.
¶65 Children can and do thrive in families with single, unmarried, or married parents.2 This case is an excellent example of the second category. T.G. has, by all accounts, demonstrated dedication and commitment to A.M.B. over the past
¶66 Moreover, children can and do struggle in households with married parents. Married couples may, on average, stay together in the same household longer than unmarried pаrents, and that may look like stability from a thousand-foot-view. But inside the home, the legal pressure for a married couple to stay together, the very thing that makes the household appear stable in a superficial sense, may sometimes lead to worse outcomes for children. More than 20% of children have witnessed domestic violence within their lifetime, often resulting in long term harm to their development. David Finkelhor et al., Violence, Abuse and Crime Exposure in a National Sample of Children and Youth, 124 Pediatrics 1, 5 (2009). Even short of domestic violence, legally “stable” marriages may be rife with stressors for the children in those homes. Bali Ram & Feng Hou, Changes in Family Structure and Child Outcomes: Roles of Economic and Familial Resources, 31 Pol‘y Stud. J. 309, 312 (“[A] large body of research now exists that finds that children are not necessarily better off living with two biological parents who are in constant marital conflict.“). Even ignoring the challenges that may arise when a married couple remains together, marriage is hardly a guarantee of relationship stability given that divorce rates have continued to rise in the United States since the Civil War. Lisa D. Pearce et al., The
¶67 In short, using marriage as a litmus test for household stability reflects suspect assumptions аbout which family structures create stability, and what it means for a household to be stable in the first place. Marriage is treated as binary, where married parents check the stability box, unmarried parents do not, and all nuance is disregarded as insignificant. In cases such as this where unmarried parents provide stability, there is no tolerance for any exception. And, as a result, children suffer.
¶68 The second frayed thread linking the adoption statutes to the best interest of the child goal is little more than tail-wagging-the-dog circular reasoning. It goes like this: The state grants a “constellation of benefits” to married couples related to “taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority,” and more. See Obergefell v. Hodges, 576 U.S. 644, 669-70 (2015). The state then uses those benefits as justification to grant yet another benefit to married couples—here, adoption rights—reasoning that because married couples are already well-supported by the state, they are in a better position to receive the new benefit. The connection between the granting of the benefit and the state‘s goals is thus substantially manufactured by the state, resulting in a spiral of ever-expanding benefits to married couples, leaving alternative family structures
¶69 The third unraveling thread is an outdated set of values positioning marriage as the moral center of family and society. These values sometimes lurk beneath other seemingly neutral rationales for marital benefits (such as ensuring household stability), only surfacing occasionally as a reminder to us that they are still there. Sometimes these values are front and center, serving as the main justification for a marriage-based distinction under the law.
¶70 To explain what is fundamentally wrong with using this set of values to justify marriage-based laws, I turn to an 1888 U.S. Supreme Court case, cited by the Court in Obergefell, that expounded on marriage as “the foundation of the family and of society, without which there would be neither civilization or progress.” Maynard v. Hill, 125 U.S. 190, 211 (1888). At the time those words were written, the following was true about the institution of marriage. Coverture laws subordinated married women to their husbands’ legal control, eliminating their legal and economic identities. Christopher R. Leslie, Dissenting from History: The False Narratives of the Obergefell Dissents, 92 Ind. L.J. 1007, 1014 (2017). As a result, a married woman‘s
¶71 Times have changed, of course, but the justification that marriage is the moral core of society and the family is as weak as it ever was. With only about half of U.S. adults in a marriage, first marriages beginning later in life, and increasing divorce rates over time, Americans are spending more and more of their adult lives unmarried.4 Unsurprisingly then,
¶72 In sum, I agree that the adoption statutes have a rational basis given the low bar that the legal analysis requires. But upon closer inspection, the connection between the adoption statutes and a child‘s best interest appears increasingly threadbare. Remove the outdated, the questionable, and the merely self-perpetuating, and soon you are left with very little connection at all.