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CONSTITUTIONAL ISSUES AND OPEN RECORDS FOR ADULT ADOPTEES

Court challenges by adoptees questioning the effect of sealed records law on civil rights and the CONSTITUTION OF THE UNITED STATES:

Yesterday’s Children, an Illinois adoptee activist group, filed a class action suit in federal court in 1975. Their contention was that sealed records violated their constitutionally protected rights as articulated in the First, Fifth, Ninth, and Fourteenth Amendments to the Constitution of the United States. The court declined to exercise jurisdiction over the claims on the grounds that the issues presented were ones of social policy best left to the state and that Illinois law on the issues was not developed enough to warrant federal review. In other words, the proper venue for challenging sealed records was state court, not federal court. Yesterday’s Children appealed all the way to the U.S. Supreme Court, which declined to hear the case in 1978. Yesterday’s 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 federal court in New York in 1977. ALMA argued that sealed records violate the First, Fourth, Ninth, Thirteenth and Fourteenth Amendments. Their arguments were: 1) the interest of an adoptee in learning the identity of his or her origins is a fundamental right protected by the Due Process clause of the Fourteenth Amendment; 2) adult adoptees are a suspect or “quasi-supsect” class protected by the Equal Protection clause from discrimination; 3) sealed records violate the Thirteenth Amendment’s prohibition against slavery because, in abolishing parental relations, they impose on adult adoptees a “badge of slavery”; (4) sealed records deny adoptees the right to privacy accorded certain aspects of family life and procreation; and (5) sealed records deny adoptees the right to acquire useful information, which is a corollary to the right of free speech protected under the First Amendment. ALMA also lost at all judicial levels. ALMA Society Inc. v Mellon, 459 F.Supp 912 (S.D.N.Y.1978), aff’d, 601 F.2nd 1225 (1979), cert. den. 444 U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426.

It appears from these cases that federal courts will not be easily amenable to constitutional challenges against state adoption laws. In general, courts defer to the legislative process. That is why, as the cases described below demonstrate, it is usually easier to defend a law once the law is passed than to have an existing law declared unconstitutional.

Court challenges to STATE LAWS opening adoption records:

Tennessee passed a substantive semi-open records law in 1996. This law was challenged in both the federal and state courts. At the federal level, the plaintiffs, two birth mothers, an adoptive couple, and Small World Ministries, 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.

Judge Nixon of the U.S. District Court sided with the defendants, who argued that the new law opening records did not violate constitutional rights to familial and reproductive privacy, and privacy against disclosure of confidential information. With regard to familial privacy, Judge Nixon explained that “…[p]laintiffs’ 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.” Doe v Sundquist, 943 F. Supp. 886, 893-94 (M.D. Tenn. 1996). Judge Nixon also rejected plaintiffs’ argument that the right to relinquish a child for adoption was analogous to the right to an abortion, and thus was a “reproductive choice” subject to constitutional protection. “[The open records law does] not interfere with a ‘reproductive right of privacy,’ since [it] fail[s] to impinge upon a woman’s right . . . to carry a pregnancy to term . . . Since the [open records law] does not prohibit adoption, it cannot be deemed analogous to direct government restraints on private, fundamental decision making [such as laws that criminalize abortion].” Id. at 894-895. Finally, Judge Nixon explained that, although the Constitution affords protection against certain government intrusions into private matters, “the protection of a person’s general right to privacy . . . is . . . left largely to the law of the individual states.” Id. at 895

The plaintiffs appealed to the Sixth Circuit Court of Appeals, which affirmed Judge Nixon’s decision and his reasoning. Notably, the Court explained that “[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. . . . .[in passing its open records law], [t]he Tennessee legislature has resolved a conflict between the interest [of adoptees in knowing the circumstances of their birth] and the competing interest of some parents in concealing the circumstances of a birth.” 106 F.3d 703, 705 (6th Cir. 1997)

The plaintiffs appealed to the U.S. Supreme Court, which denied certiorari (declined to hear the case) in 1997, upholding the Sixth Circuit Court decision, and ending the federal case. The Supreme Court of Tennessee also rejected challenges to the law under its state constitution. See Doe v. Sundquist, 2 S.W. 3d 919 (1999).

Measure 58, a ballot initiative passed in Oregon in 1998, approved the unconditional opening of original birth certificates to adult adoptees upon request. Immediately after the election, Measure 58 was challenged in court. Six anonymous birth mothers, represented by an attorney with support from the National Council For Adoption, an anti-open records lobbying organization, filed suit in state court, claiming that open records violated contracts of anonymity made at the time of relinquishments, as well as their right to privacy. This suit was dismissed in mid-1999. 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. See Does v Oregon, Summary Judgement.

The Oregon Court of Appeals affirmed the lower court’s decision, holding that birth mothers have no constitutional guarantee of privacy regarding the fact that they relinquished a child, despite promises they may have received that their identities would be protected. Does v. State of Oregon, 164 Or.App. 543, 993 P.2d 833, 834 (1999). The Court refused to extend an earlier stay blocking the law from taking effect, leaving the U.S. Supreme Court as the only option for the opponents. In May, 2000, the Supreme Court rejected the six anonymous birth mothers’ request to stay the law. After nearly two years of court battles, Measure 58 went into effect.

GLOSSARY

Right to Privacy:
Sealed records proponents claim that birth parents have a right to remain anonymous from their offspring and often articulate this claim as stemming from a constitutional “right to privacy.” However, the courts have generally determined that the federal constitutional right to privacy means protection of individuals from government intrusion. A number of states have explicit right to privacy provisions in their constitutions which may provide greater protections than those provided under the federal constitution.
Due Process:
No state may deprive a person of life, liberty or property without due process of law—that is, people must be given adequate notice and a fair opportunity to be heard—and no state may deny to any person in its jurisdiction equal protection under the laws. The principle of due process is found in the Fifth and Fourteenth Amendments.
Equal Protection:
The Fourteenth Amendment of the United States Constitution provides that no state shall deny to any person within its jurisdiction the equal protection of the law. This does not necessarily mean that all people must be treated the same, however. State legislation can draw distinctions between persons so long as those distinctions are rationally-related to the purpose of the legislation. For example, a state legislature can decide to make certain kinds of aid available only to those persons whose income does not exceed a particular amount.
Generally, the question of whether the equal protection clause has been violated only arises when a state discriminates against a person or persons either in their exercise of a “fundamental right” (that is, a right explicitly or implicitly granted under the Constitution, such as the right to free speech or the right to practice one’s religion) or by denying rights based on a “suspect” or “quasi-suspect” classification as those classifications have been defined by the courts (for example, race or ethnic origin).
©2012. Bastard Nation: The Adoptee Rights Organization
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SAMPLE STATE ORGANIZATION RESOLUTION AGAINST VETOES AND OTHER RESTRICTIONS

SAMPLE STATE ORGANIZATION RESOLUTION AGAINST VETOES AND OTHER RESTRICTIONS

Any political organization seeking to enact true open records legislation should be very clear with both their constituents and the legislators they work with about what the essential provisions of the proposed bill are. Any modification or deletion of the essential provisions of a bill should be immediate cause to have the bill killed.

Any political organization seeking the assistance of Bastard Nation to pass open records legislation must hold unconditional access by adult adoptees to the original record of their birth as an essential provision that cannot be modified or deleted. Read our Mission Statement.

Bastard Nation will not assist any political organization to pass open records legislation unless their governing board or other leadership

passes a written resolution such as the following that commits the board to a strategy of no compromise on key provisions
informs its constituents of this commitment and this strategy
informs the sponsoring legislators of this commitment and this strategy.

WHEREAS we recognize that disclosure and contact vetoes, redactions, mandatory intermediaries and registry provisions are an affront to the dignity of adopted persons everywhere and a violation of their right to due process and equal treatment under the law,

WHEREAS there has been a demonstrable negative effect on the ability to pass unconditional open records in states that have passed veto legislation and/or any provisions that are less than unconditional access on demand by the adult adoptee,

WHEREAS our primary goal is to restore the right of adult adoptees everywhere to be treated as full citizens under the law,

WE HEREBY DECLARE that under no circumstances will we accept the addition of veto, redaction, intermediary, or registry provisions, or any conditional provisions to our legislation that would be less than unconditional access for adult adoptees to the original record of their birth. All legislative sponsors and members of this organization will be informed of our policy on this matter to ensure that the bill is pulled promptly in the event of such revisions.