UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION
PROMISE DOE, KIMBERLY C. and RUSS C., and
SMALL WORLD MINISTRIES, INC., Plaintiffs, V. DONALD SUNDQUIST, Governor of
the State of Tennessee, in his official capacity, CHARLES W, BURSON,
Attorney General of the State of Tennessee, in his official capacity and
LINDA RUDOLPH, in her official capacity as the Commissioner of the Department of
Human Services for the State of Tennessee.Defendants.
Case No. #3-96-0599
BRIEF AMICUS CURIAE
Jim Holcomb Senator, General
Assembly, State of Tennessee
Joe Fowlkes Representative, General
Assembly, State of TennesseeCaprice East Former Commissioner, Adoption Study
Commission, State of Tennessee
Robert D. Tuke Former Commissioner,
Adoption Study Commission, State of Tennessee
TABLE OF
CONTENTS
Amicus Brief,
Part One
TABLE OF AUTHORITY
LEGISLATIVE HISTORY
A. Activities of the Adoption
Study Commission B. Actions of the General Assembly ARGUMENT
I. TENNESSEE'S ADOPTION ACT
ACCOMPLISHES A COMPELLING GOVERNMENTAL INTEREST THROUGH THE LEAST RESTRICTIVE
MEANS
A. The Government Has a
Compelling Interest in Allowing Adult Adopted Persons Access to Their Adoption
Records
B. The Act Accomplishes Its
Compelling Interest Through the Least Restrictive Means
Amicus Brief, Part Two
II. THE ACT DOES NOT BREACH THE STATE'S
ALLEGED CONTRACTUAL OBLIGATION TO KEEP ADOPTION RECORDS SEALED EXCEPT BY ORDER
OF THE COURT
III. THE ACT DOES NOT INTERFERE WITH A
FUNDAMENTAL CONSTITUTIONAL RIGHT
A. The Act Does Not Unconstitutionally
Interfere With the Freedom to Make Familial and Reproductive Choices
B . There Is No Constitutional Guaranty of
the Nondisclosure of Personal Information
IV. THE ACT DOES NOT VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
A. Pregnant Women Who Chose to Place Their
Children For Adoption Are Not a Suspect Class for Equal Protection Purposes
B . There Is No Government Selected
Classification Which Burdens Plaintiffs' Fundamental Constitutional
Rights
V. CONCLUSION
TABLE OF
AUTHORITIES
CASES
ALMA Society
v. Mellon, 601 F.2d 1225 (2d Cir. 1979) Bradley v. Children's Bureau of South
Carolina, 274 S.E.2d 418 (S.C. 1981) City of Richmond v. J.A. Croson, 488
U.S. 469 (1989) Craig v. Boren, 429 U.S. 190 (1976) Davis v. Davis, 842
S.W.2d 588 (Tenn. 1992) Doe v. Wigginton, 21 F.3d 733 (Gth Cir.
1994) Griffin v. Illinois, 351 U.S. 12 (1956) Griswald v. Ccnnecticut, 381
U.S. 479 Harper v. Virginia Board of Election, 383 U.S. 663 (1963) In re
Assalone, 512 A.2d 1383 (R.I. 1986) In re Maples, 563 S.W.2d 760 (Mo.
1978) J.P. v. Desanti, 653 F.2d 1080 (6th Cir. 1981) Katz v. United
States, 389 U.S. 347 (1967) Loving v. Virginia, 388 U.S. 1 Mills v.
Atlantic City Department of Vital Statistics, 372 A.2d 646 (1977) Morford v.
Yong Kyum Cho, 732 S.W.2d 617 (Tenn. App. 1987) Morris v. Gross, 572 S.W.2d
902 (Tenn. 1978) New State Ice Co. v. Leibmann, 285 U.S. 262 (dissenting
opinion) Pierce v. Society of Sisters, 268 U.S. 510 Roe v. Wade, 410 U.S. 113
(1973) Romer v. Evans, ____ U.S.____ 1996 LEXIS 3245 (1996) Shapiro v.
Thompson, 394 U.S. 618 (1969) Whalen v. Roe, 429 U.S. 589
(1977)
CONSTITUTIONAL PROVISIONS
Tenn. Const. art. I. § 20
STATUTES
Former T.C.A.
§ 36-1-101(c) . T.C.A.§ 36-1-101 T.C.A.§ 36-1-102(7)(c) T.C.A. §
3G-1-131 T.C.A.§ 36-1-131(a) T.C.A. § 36-1-132
OTHER
AUTHORITY
Jason Kuhns,
The Sealed Adoption Records Controversy: Breaking Down the Walls of
Secrecy, 24 Golden Gate U. L. Rev. 259, 274 (1994) (citing Margaret Lawrence
who has interviewed over two hundred adult adoptees)
Bill Betzen,
0pen Adoption Saves Lives, 1993 Living World 6
(1993)
Identity
Development In Adopted Children, 47 Pediatrics 948
(1971)
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION
DOE V. SUNDQUIST, Case No. #3-96-0599
BRIEF AMICUS CURIAE
This brief amicus curiae ("Amicus Brief") is filed on
behalf of Jim Holcomb, Senator of the State of Tennessee, who was the Senate
sponsor of the bill which became the Tennessee Adoption Code, codified at
Chapter 1, Title 36, Tennessee Code Annotated (referred to in this Amicus Brief
as the "the Act" or "Adoption Act"), Joe Fowlkes, Representative of the State of
Tennessee, who was the sponsor of the legislation in the House, Caprice East,
who was a member of the commission to study the adoption laws of the State of
Tennessee (the "Adoption Commission"), created by Senate Joint Resolution No. 17
by the Tennessee General Assembly and approved by the Governor on May 31, 1993,
and continued by Senate Joint Resolution No. 256, adopted and approved in
January, 1994, and Robert D. Tuke, also a member of the Adoption Commission. It
is the purpose of this Amicus Brief to acquaint the court with the legislative
process undertaken by the Adoption Commission and the General Assembly in
studying and enacting the Adoption Act. It is also the purpose of this Amicus
Brief to make legal arguments in support of the validity and constitutionality
of the Adoption Act and to urge this court to deny Plaintiffs' Motion for a
Preliminary Injunction and to dismiss this case.
LEGISLATIVE
HISTORY
A. Activities of the Adoption
Study Commission
Senate Joint Resolution Number 17, a copy of
which is attached to this Amicus Brief as Exhibit A, recited, in part, as
follows:
\"WHEREAS, the various philosophies
surrounding all aspects of the adoptive process have been vigorously debated by
concerned persons interested in the protection of the children, their birth
families, their adoptive families, and by those interested in later
reunification of adoptive children by their birth families, all as evidenced by
numerous bills introduced each year in the General Assembly in these areas;"
which indicated the need for careful study
of Tennessee's adoption laws. Accordingly, the Adoption Commission was appointed
to:
"1. study all aspects of the adoption law in
Tennessee with a view towards revising, updating, and clarifying the law so that
it may give clear and consistent guidance to those using it in agency or
independent adoptions, and those affected by the laws in order to ensure, to the
extent possible, the well-being of adopted children, and to further insure the
protection of those children, their birth and their adoptive families from any
legal uncertainties related to this important process, and to review procedures
for later reunification of adoptive children with their birth families; and
2. recommend legislation to effect the above
goals."
The Adoption Commission was appointed
according to the Senate Joint Resolution to include two members of the Senate
(including Senator Holcomb, in 1994), two members of the House of
Representatives (including Representative Fowlkes), one member of the bench who
regularly presides over adoption matters, one member of the bar who practices
regularly in the adoption field (the undersigned) , one person who is a
representative of a licensed, child-placing agency, one person who is a
representative of an adoption advocacy group, one adopted person (Ms. East), one
person who placed a child for adoption, and the Commissioner of the Department
of Human Services or the Commissioner's designee.
The Adoption Commission began its work with
a preliminary meeting on August 20, 1993, in Nashville. Thereafter, meetings
occurred on October 4-5, 1993 in Nashville; October 27-28, 1993 in Jackson;
November 9-10, 1993 in Knoxville; and November 30-December 1, 1993 in Columbia.
In addition, the Commission met December 2021, 1993 in Johnson City, at the
request of residents of Upper East Tennessee to have access to the Adoption
Commission to testify.
At the meetings in Jackson, Knoxville,
Columbia and Johnson City, the Adoption Commission heard from hundreds of
persons wishing to present testimony regarding Tennessee's adoption laws. In
addition, the Adoption Commission received dozens of letters and other
correspondence from citizens of Tennessee and elsewhere regarding their personal
experiences and views. The vast majority of the testimony and correspondence
received by the Adoption Commission focused on the issue of access to adoption
records. The tapes of these meetings have been submitted to the court as
Collective Exhibit A to the affidavit of Caprice East, and documentary material
received has been submitted as Collective Exhibit B to the Affidavit of Caprice
East.
Scores of the persons testifying and of
persons presenting documentary evidence expressed their frustration in being
denied access to their adoption records. The evidence overwhelmingly indicated
that the current law had served to deny access to often critical information to
those persons most in need of having it. The evidence also reflected a pattern
of inconsistent response, uncertainty, and contradiction in policy and procedure
by the Department of Human Services and in many cases the courts.
During 1994, the Adoption Commission met on
several additional occasions. At its meeting on January 10, 1994, the Adoption
Commission heard from Mrs.Vallie Miller, who had been the State Supervisor of
Adoptions during the investigation of the Tennessee Children's Home Society, the
enacting of legislation which sealed adoption records as a result thereof, and
for approximately 30 years thereafter. In her testimony, Mrs. Miller testified
that she authorized and was aware of no promise of confidentiality to biological
parents following the 1951 legislation. (See testimony of Mrs. Vallie Miller
recorded as part of Collective Exhibit A to Affidavit of Caprice East filed with
this court.)
At its meetings in 1994 and 1995, the
Adoption Commission discussed and debated at length the manner in which
Tennessee's adoption laws should be amended. Much of its attention was devoted
to the issue of access to records. The Commission determined to attempt a
balance between the interests of biological parents in their privacy with the
interest of adoptive persons to have access to their own records.The Commission
divided those persons affected into three groups: pre-March 1951; post-March
1951 through the present; and persons affected in the future. The Adoption
Commission carefully discussed the interests of biological parents, adoptees and
adopted parents in each of the three groups. Following these considerations, the
Adoption Commission determined to recommend to the General Assembly legislation
which would include a concept based upon the Contact Veto Registry legislation
of New South Wales, Australia. The Adoption Commission also determined to
recommend to the General Assembly a completely redrafted Adoption Code
incorporating a Contact Veto Concept. The Chairman of the Adoption Commission
appointed a drafting committee consisting of William G. Russell, General Counsel
for the Department of Human Services, and Robert D. Tuke, one of your amicus
curiae. The drafting committee made its first report to the doption Commission
on August 2, 1994 and continued to report thereafter until its final draft
legislation was submitted.
The Adoption Commission met on January 25,
1995 to consider the recommended legislation prepared by the drafting committee,
and following several hours of discussion, the Adoption Commission voted to
recommend to the General Assembly by a vote of 11 affirmative votes and one pass
(by Senator Henry, who opposed access to records by those persons adopted after
March 1951 to the present). The report to the General Assembly is attached to
this Amicus Brief as Exhibit D, and is a part of the record of the Adoption
Commission and the General Assembly. |
B. Actions of the General
Assembly
The proposed legislation from the Adoption
Commission was introduced in the Senate by Senator Holcomb and in the House by
Representative Fowlkes, both amicus curiae in this case. The legislation was
introduced as Senate Bill Number 653 and House Bill Number 406. Both Bills had
multiple co-sponsors, with Senator Holcomb and Representative Fowlkes being the
principal sponsors. The Bills were debated in the Senate before the Judiciary
Committee, and the Finance, Ways and Means Committee. In the House, it was
debated before the Judiciary Committee and the Finance, Ways and Means
Committee. It also was debated in various sub-committees of both Houses. The
Bill was subject to fiscal review and ultimately sent to the floor of each
chamber for a vote. House Bill Number 406 was passed by the House of
Representatives by a vote of 99 to 0, and Senate Bill Number 653 was passed by
the Senate by a vote of 30 to 2. Both Bills were debated on the floors of their
respective Houses and amended before passage.
Following an error in the engrossing
process, a Joint Ad-Hoc Committee was appointed by the House and Senate to
further study the law as passed and to resolve the problems arising from the
engrossing error. The Joint Ad-Hoc Committee met on August 23 and August 24,
1995. During those meetings, the issues of privacy rights and access to records
were again debated, with testimony being offered by a representative of the
National Council for Adoption, of which Plaintiff Small World Ministries, is a
member. Members of the Adoption Commission also testified before the Joint
Ad-Hoc committee, including your amici curiae, Robert D. Tuke and Caprice East.
The effective dates of the legislation with
respect to persons adopted after March, 1951 had been postponed until July 1,
1996, to provide time for the Department of Human Services to develop rules and
regulations and to publicize the existence of the Contact Veto Registry. The
postponement also was intended to afford the General Assembly the opportunity to
receive additional information and commentary on the new law as it affected
access to adoption records. Such commentary was received and referred to the
Joint Ad-Hoc Committee. In addition, the Adoption Commission met again on
November 8, 1995 to receive and consider input from Crisis Pregnancy Centers and
others regarding potential access to information intended to be kept
confidential.
Following these meetings and based upon
information received, amendments to the newly enacted adoption law were proposed
to the General Assembly in 1996 in order to clarify access to records, to make
it clear that home studies were not intended to be included in the sealed
adoption records available for release, except on court order, and to make
certain that confidential records maintained by Crisis Pregnancy Centers,
psychologists and other professionals would not be subject to release, except by
court order. The amendments were offered as Senate Bill Number 2737 by Senator
Holcomb and House Bill Number 2054 by Representative Kim McMillan. Additional
amendments were offered by other Senators and Representatives, including House
Bill Number 2927 introduced by Representative Carol Chumney and Senate Bill
Number 3099 by Senator David Fowler, which would effectively have prohibited
release of the sealed adoption records without the consent of the affected
biological parent. Again, these Bills were fully debated in the appropriate
Committees of both the House and the Senate, and ultimately Senate Bill 2737
sponsored by Senator Holcomb and Representative McMillan was passed
overwhelmingly by both Houses and became law when signed by the Governor on May
15, 1995, as Public Chapter No. 1054. Representative Chumney's and Senator
Fowler's Bill was amended to restrict the consent requirement to victims of rape
or incest, and became law when signed by the Governor on May 15, 1995, as Public
Chapter No. 1068. Copies of that legislation are attached to this Amicus Brief
as Exhibits C and D respectively. These statutes are the subject matter of this
case, not the statutes cited by Plaintiffs in their original Complaint, Motion,
Memorandum and Affidavits.
ARGUMENT
Plaintiffs contest the constitutionality of
the 1996 amended Tennessee Adoption Code ("the Act") . Specifically, Plaintiffs
argue that the Act is unconstitutional because it allegedly: (1) retroactively
breaches a perceived State contractual obligation to keep adoption records
sealed absent a court order, (2) interferes with birth parents' autonomy in
reproductive decision-making, (3) violates the birth parents, alleged right to
nondisclosure of personal information, (4) violates the Equal Protection Clause
of the Fourteenth Amendment of the United States Constitution and of the
Tennessee Constitution, and (5) interferes with parental rights. The Plaintiffs,
allegations fail because the State may pass retroactive, remedial legislation in
areas reserved for state governance. Ultimately, adoption is a state statutory
creation, and the Tennessee legislature acted completely within its powers when
it amended its former adoption procedures. In addition, Plaintiffs fail to
demonstrate that the Act interferes with a fundamental right protected by the
United States Constitution, or that the Act intentionally burdens a class of
people which is considered suspect for equal protection purposes.
I. TENNESSEE'S ADOPTION ACT
ACCOMPLISHES A COMPELLING GOVERNMENTAL INTEREST THROUGH THE LEAST RESTRICTIVE
MEANS.
Plaintiffs, contentions are addressed later
in this Amicus Brief, and their contractual and constitutional arguments must
fail. As an initial matter, however, we would point out that even if Plaintiffs
were able to convince the court that the Act interfered with a fundamental,
constitutional right for either due process or equal protection purposes,
Tennessee's Adoption Act would survive even strict scrutiny because it serves a
compelling government interest through the least restrictive means. |
A. The Government Has a
Compelling Interest in Allowing Adult Adopted Persons Access to Their Adoption
Records
The medical and psychological communities
have long recognized the importance of access to adoption records. Adopted
children often experience a large measure of emotional stress and difficulty in
establishing a sense of identity, much of which stems directly from the adopted
person' s unrequited need for adoption information. Identity Development In
Adopted Children, 47 Pediatrics 948 (1971) . Experts specifically recommend
providing adopted persons with origin information when they reach adulthood. J.
Davis, Report to the National Committee on Adoption and Dependent Care, American
Academy of Pediatrics, Henry Siedel, M.D. Chairman. Presented Oct. 23, 1974.
The adult adopted person, s compelling need
for his or her true identity is an undeniable basic human need to know one's
true place in history. Jason Kuhns, The Sealed Adoption Records Controversy:
Breaking Down the Walls of Secrecy, 24 Golden Gate U. L. Rev. 259, 274 (1994)
(citing Margaret Lawrence who has interviewed over two hundred adult adoptees).
As one court wrote, "All of us need to know our past, not only for a sense of
lineage and heritage, but for a fundamental and crucial sense of our very
selves: our identity is incomplete and our sense of self retarded without a real
personal historical connection." In re Maples, 563 S.W.2d 760, 767 (Mo. 1978).
Since the 1970's, adopted persons, driven by a need to know their histories,
have been forming political organizations such as the Adoptee's Liberty Movement
Organization (ALMA) to agitate for access to their adoption records. Kuhns,
supra, at 262.
Tennessee's new adoption Act is the product
of this grassroots activism. Under the former law, the legislature specifically
recognized that where the child's interests were in conflict with those of an
adult, the conflict should be resolved in favor of the child, and to that end
the statutes should be liberally construed. Former T.C.A. § 36-1-101(c). But in
practice, adopted people's rights were largely ignored. In the balancing test
applied by the courts, adopted persons were often denied access to their
records, at times even during medical emergencies, supposedly in favor of birth
parent privacy. See Record of Adoption Commission, Exhibits A and B to Affidavit
of Caprice East. The birth parents wishes, be they for or against contact, were
never part of the decision.
Because of the arbitrary application of the
former adoption law, the Tennessee legislature undertook to clarify the adoption
laws by articulating a standard procedure to access adoption records. The
Tennessee legislature spent three years redrafting and debating the State's
adoption laws, "to provide means and procedures for the adoption of children and
adults that recognize and effectuate to the greatest extent possible the rights
and interests of persons affected by adoption, especially those of the
adoptees.11 T.C.A. § 36-1-101(a). While motivated by a compelling interest, the
State tried to draft a law which was sensitive to the needs of all the
interested parties. The stated purpose of the Act is to "Permit [adopted
persons] to obtain information about themselves from the adoption records . . .
to which they are entitled, but also to recognize the rights of parents and
adopted persons not to be contacted by the persons who obtain such information,
except in compliance with this part." T.C.A§ 36-1101(c) (Public Chapter No.
1054, § 2).
B. The Act Accomplishes Its
Compelling Interest Through the Least Restrictive Means
The drafters of the Act not only took great
pains to balance the birth parent's privacy interests with the adopted person's
interest in accessing his or her records, but they also afforded birth parents
greater protection than they enjoyed under the former law. Under the old law, an
adopted person went to court and either was or was not granted access to his or
her records. At no time in this process was the birth parent notified or
represented in the proceedings. Nor was any interest of the birth parent to be
considered by the court; the sole criteria for the court were the "best
interests of the child or of the public." Former T.C.A. § 36-1-131. The only
legal recourse birth parents had to protect themselves from unwanted contact
with their adult children was through stalking laws and restraining
orders.
Under the new law, birth parents are
notified when their adult children request access to their adoption records and
are given the opportunity to sign a contact veto. T.C.A.§ 36-1-132 (Public
Chapter No. 1054 § 119). The contact veto affords birth parents the strongest
legal protection available, criminal sanction. Should an adult child (or a
person acting on his or her behalf) not honor his or her birth parent's contact
veto, he or she will be criminally liable. In addition, the statute provides for
a civil cause of action for damages including punitive damages, and injunctive
relief.Id.
Plaintiffs also worry that the identity and
history of biological parents may be disclosed to the public at large, thus
exposing birth parents who wish to remain anonymous to blackmail and public
embarrassment. Nothing in the former law protected birth parents whose children
either received information through the courts or through private detectives
from this kind of threat. Birth parents, only recourse was a civil suit for
defamation. The new law, however, makes the disclosure of any information gained
under the Act a criminal offense, in addition to providing civil liability for
defamation. T.C.A.§ 36-1-132 (Public Chapter No. 1068, § 1).
The new law also excludes from the disclosed
adoption records any information relating to "crisis pregnancy counseling" and
other protected professional information. T.C.A. § 36-1-102 (7) (C) I (Public
Chapter 1054, § 7). Plaintiff Doe's information about the circumstances leading
to her pregnancy and her letter explaining her decision (Doe Affidavit 6-7)
would not, therefore, be released under the new law.
The Act addresses Plaintiffs other concerns.
Plaintiffs contend that birth parents who have not had a chance to sign the
contact veto will not be protected under the Act. However, the Act sets forth a
detailed procedure by which birth parents will be contacted by the State and
given a chance to file a contact veto if the registry does not indicate that a
veto has been filed. T.C.A. 36-1-131 (Public Chapter No. 1054 § 88).
Plaintiffs are also concerned that the Act
will discourage adoptions because potential adoptive parents will fear the
possible future disclosure of the highly personal material contained in their
home studies. This fear has been addressed. Under the Act, home study
information is not contained in the information with would be made available to
adult adopted persons. T.C.A. § 36-1102 (7) (C) (Public Chapter 1054,§ 7) Not
only does the Act operate by the least restrictive means, it actually affords
birth parents greater protection. Thus the Act would withstand even the court's
strict scrutiny because it furthers a compelling government interest through the
least restrictive means.
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