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


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


Amicus Brief, Part One





A. Activities of the Adoption Study Commission
B. Actions of the General Assembly


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



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


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




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)


Tenn. Const. art. I. 20


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


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)


DOE V. SUNDQUIST, Case No. #3-96-0599


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.


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.  


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.


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.

| See Brief Amicus Curiae, Part Two |