from THE BASIC BASTARDConstitutional Issues and Open Records for Adult Adopteesby Shea Grimm, sheag@lava.net (This article appeared in the Fall 1999 issue of the Bastard Quarterly.) Constitutionality is a complicated issue in the sealed/open records debate, with both sides claiming constitutional arguments. Many times over the years adoptees have questioned the nature of sealed records with regard to their civil rights. Two class action suits were brought during the very active reform period of the late 1970's. Yesterday's Children, an IL adoptee activist group, filed a class action suit in 1975, claiming that sealed records violated their constitutionally protected rights as articulated in the First, Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States. They lost on jurisdictional grounds, with the court appearing to hold that the issue of sealed records was not one of constitutionality, and belonged to the states. Yesterday's Children appealed all the way to the United States Supreme Court, which declined to hear the case in 1978. (Yesterdayıs Children v. Kennedy, 569 F.2d 431 (7th Cir. 1977), cert.denied, 437 U.S. 904, 98 S.Ct. 3090 [1978]). ALMA filed a class action in New York in 1977. ALMA argued that sealed records violate the First, Fourth, Ninth, Thirteenth and Fourteenth Amendments. The court summarized their arguments as that sealed records: 1) discriminate against adoptees, who are a suspect classification under the Fourteenth amendment 2) "infringes the right to privacy in matters of family life" 3) "denies adoptees their right to acquire useful information" which is a "corollary of the right of free speech" 4) are a "badge of slavery" and thus "forbidden by the Fourteenth Amendment." ALMA also lost. (ALMA Society Inc. v. Mellon, 459 F.Supp 912 (S.D.N.Y.1978), affıd, 601 F. 2d 1225 [1979], cert. den. 444 U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426.) In addition to overcoming these hurdles of past bad precedent, in order to successfully claim a constitutional violation, adoptees would have to be recognized as a suspect class (entitling them to a higher level of judicial scrutiny), something the courts have thus far refused to do. Adoptees are far more likely to achieve open records on the statutory rather than the judicial front. In 1996, Tennessee became the first state in the U.S. to pass a substantive semi-open records law since records were first sealed several decades ago. The legislation opened original birth certificates to most adult adoptees; however, it contains provisions for contact vetoes as well as disclosure vetoes for those adoptees who were conceived from rape or incest. The law was challenged at both the federal and state levels in a lawsuit brought by two birthmothers, an adoptive couple, and Small World Ministries, the only adoption agency in Tennessee affiliated with the National Council for Adoption. Attorneys for the plaintiffs were affiliated with the American Center for Law and Justice, or ACLJ, a Pat Robertson project that serves as the rightwing equivalent of the ACLU. The plaintiffs in the case asserted that opening records to adult adoptees violated their right to privacy, their parental rights, and their right to equal protection as guaranteed by the Fourteenth Amendment to the U.S. Constitution. The "right to privacy" is a slippery legal concept that is not found anywhere explicitly in our Constitution. In the TN case, the plaintiffs relied on the fact that the Supreme Court has recognized that the familial rights to marry, establish a home, and raise children are fundamental privacy interests entitled to constitutional protection. (Prince v. Massachusetts, 321 U.S. 158 [1944], reh'g denied, 321 U.S. 804 [1944].) Additionally, the Court has held that a woman's decision whether or not to carry a pregnancy to term is a protected, fundamental privacy right. (Roe v. Wade, 410 U.S. at 152.). They also argued that the "zone of privacy" established in Griswold v.Connecticut, 381 U.S. 479 (1965), encompasses familial privacy, reproductive privacy, and privacy against disclosure of confidential information. In handing down his decision in August, 1996, Judge Nixon of the U.S District Court sided with the defendants, who argued that the right to privacy did not extend to the nondisclosure of personal information. In his opinion, Nixon stated ..." the Court finds that the Plaintiffs' claims are more accurately analyzed in terms of the release of confidential information, rather than in terms of familial privacy. The Act does not directly impinge upon birth parents' rights to subsequently marry, have, and raise children as they see fit, or upon adoptive parents' right to raise their adoptive children as they see fit. Thus, the Act does not fall within the scope of a Constitutional right to familial privacy and autonomy as deemed by case law." The opinion by Nixon goes to the very heart of the right to privacy argument, dismissing it at its most fundamental level. The plaintiffs appealed the decision to the Sixth Circuit Court of Appeals, which leveled an even more devastating blow to opponents of open records in their February 11th, 1997 opinion. Judges Martin, Engle and Cole upheld Nixon's ruling with prejudice, writing "A birth is simultaneously an intimate occasion and a public event - the government has long kept records of when, where, and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth. The Tennessee legislature has resolved a conflict between that interest and the competing interest of some parents in concealing the circumstances of a birth. We are powerless to disturb this resolution unless the Constitution elevates the right to avoid disclosure of adoption records above the right to know the identity of one's parents." They cited an earlier opinion in which they stated that "the Constitution does not encompass a general right to nondisclosure of private information." (Doe v. Sundquist, 943 F. Supp. 886 [M.D.Tenn. 1996], aff'd, 106 F.3d 703 [6th Cir. 1997]) The plaintiffs appealed to the U.S. Supreme Court, which denied certiorari (declined to hear the case) in October of 1997, upholding the Sixth Circuit decision, and ending the federal case. On the state level, the case has been remanded back for trial; the TN Supreme Court will hear an appeal of that decision in 1999, and is expected to rule before the year is out. When Measure 58 passed in Oregon in 1998, unconditionally opening original birth certificates to adult adoptees upon request, sealed records proponents again launched a legal challenge, although on a much smaller scale. Six anonymous birthmothers, represented by an adoption attorney affiliated with the NCFA, filed suit in state court, claiming that open records violated contracts of anonymity made at the time of their relinquishments, as well as their right to privacy, and other more esoteric and creative claims, such as their freedom of religion. The suit was brought solely in state court, and was dismissed in short order in mid-1999. In his opinion Judge Lipscomb stated, "...this court may not set aside Measure 58 unless it runs afoul of the Oregon or United States Constitutions. It is my conclusion that it does not. ... Even assuming birth records to be an intimate personal matter, the effect of Ballot Measure 58 is only to give access to the person born, not to the general public. And significantly, there was no privacy or confidentiality at all which was attached to adoption records at the time of the enactment of either Constitutions." An appeal is pending and the law is still under a temporary restraining order as of Sept. 1999. It is richly ironic that the decisions in these cases, instigated by anti-adoptee sealed-records zealots such as the NCFA, will probably be remembered as the most significant and positive events in the history of open records reform. Glossary:
A Publication of BASTARD NATION Copyright 1999 Bastard Nation (This article appeared in the Fall 1999 issue of the Bastard Quarterly.) Copyright 1999 Bastard Nation Back to The Basic Bastard |