The family appealed that decision to the Wisconsin Supreme Court, arguing that the state’s arbitrary distinction between married and non-married domestic partners violates equal protection. Applying rational basis review, the court upheld the law on the grounds that it bears a conceivable relationship to the legitimate state interest of promoting familial stability for adopted children. AMB and TG then filed a cert petition with the U.S. Supreme Court, which Cato supported with an amicus brief.
Cato’s brief explains that there are multiple versions of the so-called rational basis test spanning the spectrum from utterly insubstantial to truly meaningful. At the insubstantial end of the spectrum, also referred to as the “Lee Optical” rational basis test after the eponymous Supreme Court case, there need only be a “conceivable” justification for the challenged law—it’s entirely irrelevant whether the law itself plausibly does anything good. Riffing on the challenged Wisconsin policy, Cato’s brief hypothesized several “conceivable-but-not-plausible” adoption laws, including allowing only convicted felons who have served time in prison to adopt children (because they might conceivably be more persuasive in explaining how unpleasant that experience was and how important it is to avoid it) or forbidding left-handed people from adopting children on the premise that left-handed people are more accident-prone than right-handed people, which might put adopted children at marginally greater risk of injury or death. Cato’s brief argues that instead of applying the utterly insubstantial, “any conceivable justification” (aka Lee Optical) version of the rational basis test, the Wisconsin Supreme Court should have applied a version that asked instead whether the challenged policy plausibly advances a legitimate government interest. This “plausible justifications only” version of rationale basis review has been applied by the Supreme Court in a number of rational basis cases, including City of Cleburne v. Cleburne Living Center, which involved the City’s refusal to grant a permit for the construction of a group home for mentally disabled adults. Rejecting the City’s conceivable but implausible justifications (which included the possibility of students from a nearby middle school harassing residents of the proposed group home and the fact that it would be located on a 500-year flood plain and might be harder to evacuate in case of a flood), the Supreme Court reasoned that the denial of the permit appeared to be driven by animus and violated equal protection.
Cato argued that Wisconsin’s law should be subjected to something closer to the City of Cleburne “plausible justification” version of rational basis review than the Lee Optical “conceivable justification” version for two specific reasons: first, adoption-seeking children have no ability to challenge deleterious policies in the political process because they are too young to vote; and second, courts should be especially vigilant when decisions that are typically made on an individualized basis—such as what would in the best interests of a particular adoption-seeking child under the particular circumstances of their life—are instead made on a categorical basis, the way Wisconsin does by forbidding unmarried domestic partners from adopting children they have lived with and helped raise for years. Simply put, it is irrational for the government to deny children access to a family arrangement that the government itself acknowledges would be best simply to promote some essentially abstract goal of familial “stability.”
