Petition — Alma Society, Inc. v. Mellon
Supreme Court brief1979
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FILED
£9-478 SEP 20 1979
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pa” 2 » » OCTOBER TERM,1979
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THE A A SOCIETY, ie Er AL., Peritionins
AF, wr }
_
IRVING MELLON ET AL., RESPONDENTS
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
(PROFESSOR) CyRIL C. MEANS, JR.
New York Law School
57 Worth Street
New York, N.Y. 10013
(212) 966-3500
BERTRAM E. HIRSCH
76-17 Two Hundred Fitieth Street
Bellerose, N.Y. 11426
(212) 347-3022
Attorneys for Petitioners
ER NTA RTI WA OT ATTY + ES” ANNIE
twas
INDEX
'
ts
; Opinions below 3
Jurisdiction 3
f Questions Presented 3
Statutory Provisions Involved 4
| Statement of the Case 4
| Psychological Trauma,
| Pain and Suffering 7
Effect of Lack of
Family Medical History 8
Consciousness of Danger )
of Unwitting Incest 10
| Crisis of Religious Identity ll
Reasons for Granting the writ 12
Petitioners' Thirteenth
Amendment Claim Was Erroneously
Rejected by the Court Below 16
Conclusion 34
Appendix A (Opinion of the
Court of Appeals) la
Appendix B (Judgment of the
Court of Appeals) 29a
Appendix C (Opinion of the
District Court) 32a
i
}
Appendix D (Statutory Provision) 44a
(i)
CITATIONS
CASES
Bailey v. Alabama,
Da win ee SROOLS debe edcacsvesnsece 24
Chapman v. Houston Welfare Rights Org.,
99 BeGe. 1905 eeeeeen7#esee#e3e«s*e#eee#er#e#e eeee 22
Jones v. Alfred H. Mayer Co.,
392 U.S. 409 (1968) ............ 24, 32
Plessy v. Ferguson,
163 U.S. 537 (1896)
(Harlan, J., dissenting) .........+-2. 25
Robertson v. Baldwin,
165 U.S. 275 (1897) eeeeveeeeee eee eee 30
STATUTES AND LEGISLATIVE DOCUMENTS
Federal
Civil Rights Act, April 9, 1866, c. 31,
14 Stat. 27 e*eeee7neree38eeeeeneesenee7eeeeeee 30
i EBOR ONY rb bk ski Se cavecce 3
Oe ee Oe PR ce weccccsccee 3
Re ce hen ciceccceces 3
H.R. Ex. Doc. No. 42,
38th Cong., Ist Sess. (1864)
(Emancipation in the District of
SURED Diba Seceticiecehbeccceccces 23
STATUTES, etc. (Continued)
State
New York Domestic Relations Law
Ran ete ieee chueab el see aeees
New York Public Health Law
gilt! eer eee ere, | oS eee
New York Social Services Law
eeee?e#
ae RES 18 GE: «ae
(The foregoing statutes are
printed in Appendix A, footnote l,
at 4a-7a.)
City
New York City Administrative Code
$ 567-2.0 eeeeeeeneeeee20e2802028028028080870 8
(The foregoing statute is
printed in Appendix D, at 46a.)
(iii)
5
CONGRESSIONAL DEBATES, 1864-66
(References are to the Congressional
Globe, by Congress, Session, and page.
E.g., 38-2: 138 = 38th Cong., 2d Sess. 138.)
Representative John M. Ashley (Ohio)
38-2: 138 ceoerereree ee eee eee eee eens AV 18
Senator Daniel Clark (New Hampshire)
38-1: 1369 eoeeeeeeeneeneeeeeee eeeeee#ee#ee#es 17
Representative James A. Cravens (Indiana)
38-2: 221 eeeeeeeeneeeeeeneeeeeeee + 18
Representaive John F. Farnsworth (Illinois)
38-1: 2979 ceereeev eee eeeeeeeeeeeee 26-27
Senator James Harlan (Iowa)
38-1: 1437-39 eereeeeee 16 ’ 17-18, 20-21
Representative E. C. Ingersoll (illinois)
38-1: 2990 eoeenereeeeeeeeeenevrweeeeneeeeeee 17
Representative John A. Kasson (Iowa)
38-2: 193 eeeenereneeeeeeneeeeeeeeeeeeeee 17
Representative Orlando Kellogg (New York)
38-1: 2955 eeeeeeenreeeeeeeeneeneenenpeeee 17
Representative William D. Kelly (Pennsylvania)
38-1: 2984 eoeoereeeer eee eee eee eee eeeees 17
Representative Thomas B. Shannon (California)
38-1: 2948 eeeeeeeeneeeeeneveenveeeee ive 19
Senator Charles Sumner (Massachusetts)
SOPEV BOTOG SOO Chic vasciSutecceces 17
a (iv)
CONGRESSIONAL DEBATES, 1864-66 (Continued)
Representative M. Russell Thayer (Pennsylvania)
ES?) PIB oS ts wid deen Seka heiecwes 34
Senator Henry Wilson (Massachusetts)
38-1: 1324 ......- eth ceebhcneeeee Be
BOOKS AND OTHER PUBLICATIONS
Andrew J. Cohen, M.D., et al.,
Hereditary Renal-Cell Carcinoma
Associated with a Chromosomal
Translocation,
301 New Eng. J. of Med. 592
(Sept. 13, 1979) w.cceeeeeeeees 14
Herbert G. Gutman,
The Black Family in Slavery and
Freedom, 1750-1925 (1976) ......-- » ae
Hon. Marshall A. Levin,
The Adoption Trilemma: The Adult
Adoptee's Emerging Search for His
Ancestral Identity,
8 Baltimore L. Rev. 496 (1979) 14
Aubrey Milunsky, M.D.,
Know Your Genes (1977) .....e-eee0- 15
The San Diego Tribune, Sept. 2, 1971,
Pp- BO, cols. 1-2 eeceeeveveeweeeve#eeneeeee @ 14
The San Diego Union, Sept. 3, 197:,
p. Bl, cols. 6-7; p. B4, col. 1... 14
BOOKS AND OTHER PUBLICATIONS (Continued)
Calvin Dill Wilson,
IN THE SUPREME COURT OF THE UNITED STATES
Black Masters: a Side-Light on Slavery,
North American Review, No. 588
685 (1905)
October Term, 1979
SP SCHAHESCWV Oe eH SO 6 ee 23
No.
THE ALMA SOCIETY, INC., ET AL.,
Petitioners,
Ve
IRVING MELLON ET AL.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
The petitioners, The Alma Society
Incorporated, Joyce Aaron, Eleanor B.
Barron, Marilyn Louise Beck, Susan Ro-
berta Brody, John Franklin Filippone,
Anne Fosby, Ronnye Jacovitz Futrell, Ro-
lande Synge Hampden, Michael Jay Hatten,
Vicent Konola, Katrina Maxtone-Graham,
Anita McCarthy, Raymond Rand, Rosemarie
Smith, Joan Sommers, Clothilde Louise
(vi)
Starke, Robert Van Laven, Hope Herman
Wurmfeld, and Karl M. Zimmer, respect-
-fully pray that a writ of certiorari is-
sue to review the judgment and opinion
of the United States Court of Appeals
for the Second Circuit entered in this
proceeding on June 22, 1979,
Respondents are: ‘Irving Mellon,
Director of Vital Records, City of New
York, Richard J. Garofano, Village Clerk,
Mount Kisco, New York, Beverly La Tona,
City Clerk, City of Dunkirk, New York,
the Honorable Millard L. Midonick, Sur-
rogate, New York County, the Honorable
Bertram L. Gelfand, Surrogate, Bronx
County, the Honorable Bernard M. Bloom,
Surrogate, Kings County, the Honorable
Louis D, Laurino, Surrogate, Queens County,
the Honorable John D, Bennett, Surrogate,
Nassau County, the Honorable Ernest L.
Signorelli, Surrogate, Suffolk County,
the Honorable Louis B. Scheiman, Surro-
gate, Sullivan County, Louise Wise Ser-
vices, Spence-Chapin Services to Fami-
lies and Children, Children's Aid Society
(Child Adoption Service), Jewish Child
Care Association of New York, and New York
Foundling Hospital.
ESSN a
OPINIONS BELOW
The opinion of the Court of Appeals,
not yet reported (but which soon will be
reported at 601 F. 2d 1225) appears in
Appendix A hereto (at la-28a). The opinion
of the District Court is reported at 495
F. Supp. 912, and appears in Appendix C
hereto (at 32a-43a).
JURISDICTION
The judgment of the Court of Appeals
was entered on June 22, 1979 and appears
in Appendix B hereto (at 29a-31a).
The jurisdiction of District Court
was invoked under 42 U.S.C. 8 1983 and
28 U.S.C. § 1343 (3).
This Court's jurisdiction is invoked
under 28 U.S.C. § 1254 (1).
QUESTIONS PRESENTED
1. Whether Thirteenth Amendment
rights (unlike Fourteenth Amendment rights)
are absolute, and not subject to balancing
as against the interests of others.
2. Whether the Framers intended the
Thirteenth Amendment itself, unaided by
ongressional legislation, to prohibit the
second incident of slavery.
3. Whether New York adoption laws
are, because of their sealed record fea-
tures, violative of the Thirteenth Amend-
ment in regard to adult adoptees by reason
of imposing upon them the second incident
of slavery.
While additional questions were ar-
gued and decided in the courts below under
the Fourteenth Amendment's Due Process
and Equal Protection Clauses, petitioners
consider them as subsidiary to their cen-
tral claim, which rests on the bedrock of
the Thirteenth Amendment. Accordingly,
only the foregoing questions will be argued
in this petition for certiorari.
STATUTORY PROVISIONS INVOLVED
The relevant statutory provisions
are set forth in Appendix A, footnote l,
at 4a-7a, and in Appendix D, at 44a-46a.
STATEMENT OF THE CASE
The 19 ihdividual petitioners are
adults who were adopted as children and
now seek access to (1) their original birth
certificates, (2) the court records in
their adoption proceedings, and (3) the
records of any private agencies involved
in their adoptions.
Various New York statutes require that
these records be sealed and that access to
them be granted only by court oruer. Public
Health Law § 4138; New York City Adminis-
trative Code § 567-2.0 (original birth
certificates); Domestic Relations Law
§ 114 (court records); Social Services
Law 8 372 (agency records).
The respondents are (1) municipal
officials who have custody of the original
birth certificates of the petitioners;
(2) surrogates of the counties in which
twelve of the petitioners were adopted
and in which the court records in their
adoption proceedings are now kept under
seal; and (3) five private agencies that
handled the adoptions of fourteen of the
petitioners and that now keep their re-
cords of these adoptions under seal.
Petitioners claim that adult adoptees
should be given access to the records of
their adoptions with no showing of cause
6
whatsoever. The present system of re-
quiring a showing of cause and a court
order to gain access, petitioners say,
leads to psychological trauma, risk to
health due to ignorance of the medical
history of the adoptee and his natural
ancestors, danger of incest, and a bur-
den on the adoptee in regard to the free
exercise of religion.
Respondents moved to dismiss the
amended complaint. The District Court
granted the motions to dismiss. The
Court of Appeals affirmed.
Each of the 19 individual petitioners
executed an affidavit, which he annexed
to the complaint, detailing such infor-
mation as he has concerning his pre-
adoptive background, stating when and how
he first learned that he was adopted, and
the effect that this knowledge, coupled
with the sealing of his pre-adoption re-
cords, has had on him over the years.
The facts alleged in the 19 indivi-
dual affidavits must be taken as true for
the purpose of judgment appealed from,
since the District Court granted motions
to dismiss.
7
What follows is a sampling of the
facts to be found in the 19 affidavits,
arranged under the foregoing captions.
Psychological Trauma,
Pain and Suffering
Every individual affidavit details
psychological pain and suffering, ranging
from "rage and frustration" to a "pin-
nochio syndrome". One "felt there was no
'r' or 'me' that counted". Another, a
clinical social worker, put it thus:
"not having all the pieces' has been like
living with a benign tumor: It doesn't
grow and it causes pain only occasionally,
but it always exerts pressure which is
uncomfortable, distracting, and irrita-
ting. It never goes away".
Another's "primary feeling was lone-
liness, unconnectness . .. I felt as if
I were on an island. I could tell my
children where they came from, even though
I barely felt related to them because I
was so depressed; but I couldn't tell
myself where I came from".
Twelve relate resorting to psycho-
therapy: one for 18 years, one for l5,
one for 10, one for 7, two for 6, another
for 3. One began treatment at ace 11;
another at age 14.
Effect of Lack of Family Medical Historv
The affidavits of five petitioners
who have found their natural families, and
through them their family medical histories,
illustrate various types of medical infor-
mation which the sealed records laws deny
to non-finder adovtees. One of these was
told by respondent Spence-Chapin that one
of his natural grandparents had died of
cancer; after finding his natural family
he learned that three of his natural grand-
parents had died of cancer. Another, be-
fore finding her natural family, regularly
used birth control pills. She developed
a lump in her breast which, upon removal, .
proved benign. Later on, after finding |
her natural family, she discovered that it
had a history of cystitis. Had she known
this, she would never have used birth con-
trol pills; her gynaecologist would have
advised her to use a different contracep-
tive technique. A third boré two daughters
with shallow hip sockets, an inherited cha-
racteristic, but, in the case of the second
daughter, this condition was not obvious.
After finding her natural family, she
learned that her niece had been born with
the same condition; upon reporting this
fact to her children's pediatrician, he
investigated her second daughter's hip
socket more carefully and discovered the
condition which otherwise would have gone
undetected. A fourth, upon finding his
natural mother, discovered that she had
long suffered from diabetes, and that
many of her male relatives had cied before
50. A fifth, after finding her natural
mother, was greatly relieved to learn of
the absence of the diseases she had long
feared might be hereditary in her natural
family.
Non-finders must continue to suffer
anxiety concerning themselves and also
their own natural children. The gynae-
cologists of two petitioners have presented
their patients with a dilemma: Either
earlier (at age 40 rather than the custo-
mary 45) mammography, because of lack of
family medical history, with the accompa-
nying increase in lifetime radiation dosage,
or mammography at 45, with risk of breast
cancer in the 40-50 age interval, if the
absent family medical history would have
indicated earlier mammography.
10
Another, who has had problems with her
ovaries, is bothered by not knowing whether
her mother took DES while carrying her.
One had to undergo ankle surgery; the anes-
thesiologist, without access to family his-
tory, was unable to advise which type of
anesthesia would be most safe. Seven years
ago, another began to suffer a strange com-
bination of metabolic ana systolic symtoms;
her doctors would be enormously aided if
they had her complete and up-to-date family
medical history.
The foregoing merely scratches the
surface of the bewildering variety of
medical conditions, psychiatric as well
as physical, for the correct treatment of
which modern physicians need to know the
patient's complete, up-to-date medical
history.
Consciousness of Danger
of Unwitting Incest-
One petitioner, adopted at the age of
nine, who remembered that she had an older
brother, stated: "I went through life with
a lurking fear that I might become involved,
without either of us knowing it, in an in-
4
cestuous relationship. That anxiety colored
my relationships over the years." This
did not end until she found her natural
mother and relatives. Another stated:
"Throughout my life, I have had an aver-
sion to blondes, but only if the woman's
natural hair color was blonde: If I dis-
covered that she had dyed her hair and that
it was naturally brunette, the aversion
disappeared. I could not explain this
aversion until after I met my natural sis-
ter, who is naturally blonde. It then
dawned on me, that, since I am myself blond,
I had always, through this aversion, been
manifesting an anxiety about possible in-
cest."
Crisis of Religious Identity
Three petitioners were reared in
Jewish homes, but later learned that their
natural mothers were not Jewish, and that,
under Jewish religious law, this prevented
them from being Jewish, and would also
mean that any children born of them were
likewise not Jewish. For all three -- one
an unmarried woman, the other two married
and the mothers of children -- the sealed
records laws create a crisis of religious
identity.
12
REASONS FOR GRANTING THE WRIT
In the past few years, adult adoptees
have begun to insist on their right to
know the truth of their origins. The con-
troversy over this demand has become acute.
After Alex Haley's Roots was televised to
one of the largest viewing audiences in
history, the nation became aware of the im-
portance of natural heritage to a group --
black Americans -- who historically had
often been deprived of knowledge of its
familial past. The varallel between the
American black experience in this regard,
and that of adoptees whose records have
been sealed, was suddenly cast into bold
relief.
Research now reveals that this paral-
lel is not a merely superficial one. In
the section which follows, on petitioners’
Thirteenth Amendment claim, the speeches
of the Framers of the Thirteenth Amend-
ment, time and again, strike chords haunt-
ingly similar to the experiences of adult
adoptees of today. Even when subjected to
the most rigorous legal analysis, flaws
do not appear. Where A sells B to C, in
furtherance of the interests of A and C,
SO nd te a ee
Ce ee ee ee
13
but without B's consent, it does not mat-
ter whether B is an adult slave in Charle-
ston in 1860 or a 'free' infant in New
York in 1960. In either case, B had nothing
to do with the transaction except to be
the object of it.
Furthermore, where the ante bellum
transaction sold a slave child to a new
owner different and distant from the
owner of the child's parents, the modern
adoption transaction was foreshadowed
with fearful symmetry. Not all the ills
to which the modern adoptee is heir were
the lot of the sold-off slave. In the
much less advanced state of medical know-
ledge, family medical history did not
figure then so prominently as now. But
the psychological trauma, and the danger
of unwitting incest, are common to both
periods. In his historical treatise,
The Black. Family in Slavery and Freedom,
1750-1925 at 89 (1976), Herbert G. Gutman
mentions a man who married a woman after
freedom and found out she was his mother:
he had been sold from her as an infant.
Such a marriage occurred in California in
1969, between an adoptee and his natural
mother, who had surrendered him for adop-
14
tion as an infant. The San Diego Tribune,
Sept. 2, 1971, p. B9, cols. 1-2; The San
Diego Union, Sept. 3, 197%, p. Bl, cols.
6-73; p. B4, col. l.
In regard to family medical history,
Baltimore Judge Marshall A. Levin, in The
Adoption Trilemma: The Adult Adoptee's
Emerging Search for His Ancestral Identity,
8 Baltimore L. Rev. 496, 501 n. 38 (1979),
writes: "In the absence of knowledge of
pathology among an adoptee's ancestors,
severe medical disorders can develop or go
unnoticed for years. Of 1545 genetic di-
seases 692 have been shown to be hereditary."
A recent article, Hereditary Renal-Cell
Carcinoma Associated with a Chromosomal
Translocation, 301 New Eng. J. of Medi-
cine 592 (Sept. 13, 1979), shows how the
discovery of this genetic defect and its
association with this form of cancer in
ten members distributed over three gene=
rations of an Italian-American family
took place. Three female family members
in the third generation were diagnosed
only through screening. Had they been
surrendered for adoption, their sus-
ceptibility would not have been disco-
vered in time. Had they been adopted,
z Sn ater a Rh a i ee I RI Nae NS enn net BAe LGC ACI Nh ee
15
and had they approached a New York court,
asking that their records be opened so
that they could discover their family
medical history, they would have been
told that mere curiosity did not amount
to good cause. Adult adoptees, like
everyone else, can obtain family medical
history from only one source, their
families -- natural, not adoptive.
To an adult adoptee, the title of
Dr. Aubrey Milunsky's recent book,
Know Your Genes (1977), comes as a
chilling reminder that, unlike all non-
adopted people, knowledge of his genes
is fruit on a forbidden tree.
16
Petitioners' Thirteenth Amendment
Claim Was Erroneously
Rejected by the
Court Below
The court below devoted six pages of
its opinion (at 23a-28a) to an analysis
and critiques of petitioners' Thirteenth
Amendment claim.
The first critique is that the argu-
ment is "novel" and "concedely not based
on the decided cases". That is true, but
such is always the case where a question
arises for the first time. If there are
no decided cases upon which to base the
argument, there is a wealth of legisla-
tive history showing the Framers' intent.
The court below quoted the descrip-
tion of the second incident of slavery in
the speech of Senator James Harlan of
Iowa of April 6, 1864, (Cong. Globe, 38th
Cong., lst Sess. 1439), a passage which
focuses upon the severance of the parent-
child relationship from the child's point
of view ("robbing the offspring of the
care and attention of his parents") (24a).
a Ei ata in Mo I seo en
ee ee ee ee ee Pee eee ra) eee
17
Senator Harlan's reference to this
incident of slavery was by no means an
isolated one. Ten of the other Framers
of the Thirteenth Amendment--Senators
Henry Wilson of Massachusetts, Daniel
Clark of New Hampshire, Charles Sumner of
Massachusetts, and Representatives Thomas
B. Shannon of California, Orlando Kellogg
of New York, William D. Kelly of Pennsyl-
vania, E. C. Ingersoll of Illinois, James
M. Ashley of Ohio, John A. Kasson of Iowa,
and James A. Cravens of Indiana--also re-
ferred to it in their speeches. Three of
them--Sumner (id. at 1479 and 1481), Inger-
soll (id. at 2990) and Kasson (Cong. Globe,
38th Cong., 2nd Sess. 193)--focused upon
the slave parent as the victim of the in-
voluntary separation from the child. Five
of them--Wilson (Cong. Globe, 38th Cong.,
lst Sess. 1324), Clark (id. at 1369), Shan-
non (id. at 2948), Kellogg (id. at 2955),
and Kelly (id. at 2984)--focus on the en-
forced separation itself, identifying the
parent and child as equal victims. Two of
them--Ashley (Cong. Globe 38th Cong., 2nd
Sess. 138), and Cravens. (id. at 221) focus
upon the child as the victim of the sepa~
ration. Only Harlan, in separate sentences,
18
focuses on both the parent and the child
as distinct victims of the separation.
These variations in focus and empha-
sis among the eleven Framers who denounced
this incident of slavery do not indicate
any disagreement among them, but merely
reflect the particular interests of indi-
vidual debaters. All would have agreed
that the slave-child, no less than his pa-
rent, was victimized by enforced separa-
tion.
The speeches of Representatives Ash-
ley and Cravens are of especial interest,
because additionally they identify the
special case where the slave children sold
were the offspring of the owner. Ashley
mentioned the sale of "even the children
of the slave-master" (Cong. Globe, 38th
Cong., 2nd Sess. 138). Cravens refers to
the still more specialized case in which
"the very children of the deceased slave-
holder himself [were] sold to satisfy his
merciless creditors" (id. at 221). In
the more general case mentioned by Repre-
sentative Ashley, where a living master
‘sold his own children, the second incident
of slavery took on contours indistingui-
’ ghable from the modern adoption transac-
Satna aa al RY a ne =
Pe Se ee te
19
tion. Pre-Thirteenth Amendment State law
permitted the master-parent to sell his
slave-child, not as an incident of the pa-
rent-child relation, for no parent of a
free child was permitted to do this, but
rather as an incident of the master-slave
relation, for every master was permitted
to do this in regard to his slave, whether
the slave was his child or not. When Twen-
tieth Century adoption laws permit a pa-
rent to do this, imposing not merely a
minority-duration, but a lifelong separa-
tion upon his child, it has reinstituted
the second incident of slavery.
That the often lifelong aspect of
enforced separation was a concern of the
Framers is evident from Representative
Shannon's denunciation of the "tearing
from the mother's arms the sucking child,
and selling them to different and distant
owners" (Cong. Globe, 38th Cong., lst Sess.
2948).
Of all the Framers, Senator Harlan
made the most elaborate analysis of the
institution of slavery, and the most tell-
ing critique of the reasons advanced by
its defenders. Referring to the maxim,
partus sequitur ventrem, Harlan accepted
20
(though only for the purpose of his argu-
ment) the validity of a master's claim to
the lifelong services of his female slave.
Having done that, Harlan then asked: "Wh-
ence, then, the origin of the slaveholder's
title to the services of his slave's child-
ren@® (Cong. Globe, 38th Cong., lst Sess.
1438). Harlan then suggests the following:
But-it may be said that the
slave mother, owing all the ser-
vice which she can reasonably
perform to her master, can have
no time or means to apply in the
support of her own offspring,
and therefore whatever of labor
or means may be applied by her
in providing for her children be-
longs to the owner of the mother,
so that the offspring in that
case would not owe service in
return to the mother, but to the
mother's owner. Admit this to
be true, and it will follow that
the owner of the slave mother
will acquire as good a title to
the services of the children as
the mother herself otherwise .-
would have held had she not been
a slave, and no better title.
But we have seen a moment since
that her title cannot reach be-
yond the period of the child's
minority. Just so soon as the
child shall have returned to the
mother an equivalent for the
care and labor applied by her in
the support of the child during
the years of its helplessness,
21
her title ceases. Then if the
owner of a slave mother takes
the same title and no more, the
slavery of the children of a
slave mother cannot justly ex-
tend beyond the period of the
child's minority. Then I in-
quire whence the claim of title
to the services of the child of
a slave mother after the period
of its minority; after it shall
have paid the cost of its keep-
ing during the years of its help-
less infancy?
Already, in an earlier passage, Harlan
had dealt with the right of a free parent
to the child's services during minority,
and had pointed out that in this country
the child's minority ends at either eight-
een or twenty-one years from the date of
birth, adding that he thought that "in no
civilized country is the period of minor-
ity extended beyong the age of twenty-five"
(id. at 1437).
Harlan's argument that, even granting
that the status of slavery descended
through the female, it could not justifi-
ably last longer than the slave-child's
minority, clarifies the jurisprudential
premises upon which the Thirteenth Amend-
ment rests. These pay high regard to the
passage from minority to adulthood as ter-
22
minating any obligation imposed by a pa-
rent upon a child during the latter's mino-
rity.
The court below did not include in the
portion of its opinion rejecting petition-
ers' Thirteenth Amendment claim an argu-
ment made by some of the respondents, name-
ly, that the Thirteenth Amendment is addre-
ssed only to racial discrimination. Peti-
tioners mention this argument here only
because it appears as a dictum in a foot-
note in the Opinion of this Court in Chap-
man v. Houston Welfare Rights Organization,
99 S. Ct. 1905, 1918 n.41 (1979) (“the
Fourteenth Amendment which, unlike the
Thirteenth Amendment, is not limited to
racially based claims of inequality"). It
is quite possible, however, that three of
the five signatories of this Opinion of the
Court did not agree with this particular
observation, as may be gathered from two
footnotes in the separate Opinion authored
by Mr. Justice Powell, 99 S. Ct. at 1919
n.l, 1923 n.13 (para. 3).
In any case, the notion that the Thir-
teenth Amendment is addressed only to rac-
ial discrimination is an historical error,
because some slaves were owned not by white,
23
but by free Negro masters, and they were
emancipated by the Thirteenth Amendment as
well. The report of the Commissioners who,
pursuant to Act of Congress, adjudicated
the claims for compensation of nearly
1,000 slaveowners in the District of Colunm-
bia, shows that almost one per cent of the
slaveowners were "colored" and this group
owned just under one per cent of all the
Slaves in the District. H.R. Ex. Doc. No.
42, 38th Cong., lst Sess. (1864) (Emanci-
pation in the District of Columbia).
In an article based on much research,
"Black Masters; a Side-Light on Slavery",
North American Review, No. 588 (1905),
685, at 695, Calvin Dill Wilson recounted
two cases, one of a free Negro in Trimble
County, Kentucky, who "sold his own son
and daughter South, one for $1,000, the
other for $1,200", and another in Harford
County, Maryland, "who sold his children
in order to purchase his wife." The Fram-
ers of the Thirteenth Amendment would have
regarded such voluntary sales of slave ch-
ildren by free black parents with as much
revulsion as they did voluntary sales of
slave children by white parents.
The second critique by the court be-
24
low of petitioners' Thirteenth Amendment
claim is that this Court "has never held
that the Amendment itself, unaided by leg-
islation as it is here, reaches the 'badges
and incidents' of slavery as well as the
actual conditions of slavery and involun-
tary servitude" (at 25a). Warming to this
theme, the court below felt that "all in-
dications are to the contrary. Abolition
of the badges and incidents the Court has
left to Congress."
This conclusion is very hard to rec-
oncile with the following language of Chief
Justice Hughes, speaking for a unanimous
Court in Bailey v. Alabama, 219 U.S. 219,
241 (1911), referring to the Thirteenth
Amendment: "The plain intention was to
abolish slavery of whatever name and form
and all its badges and incidents . . .
In Jones. v. Alfred H. Mayer Co., 392 U.S.
409, 439 (1971), this Court expressly ch-
aracterized the question "Whether or not
the Amendment itself did any more than"
abolish slavery as one not involved in that
case. It is, of course, the question in
the present case, and is one of great im-
portance.
The third critique of the court below
eR 7
25
is based on its resolution of a seeming con-
flict between two statements in the dis-
senting opinion of Mr. Justice Harlan in
Plessy v. Ferguson, 163 U.S. 537, at 555
(1896). On the one hand the court below
acknowledges that Justice Harlan wrote that
the Thirteenth Amendment itself "prevents
the imposition of any burdens or disabili-
ties that constitute badges of slavery or
servitude," while on the other the court
below points out that Justice Harlan also
stated that the Thirteenth Amendment had been
found "inadequate to the protection of
the rights of those who had been in sla-
very", and so it was followed by the
Fourteenth Amendment. The court below dis-
cerned a contradiction between the two
statements and reconciled it as follows:
"If the Thirteenth Amendment had by its
own force and effect abolished all badges
and incidents, all vestiges, of slavery,
it would not have been inadequate” (26a).
What the court below has done here is to
suggest a solution to a problem that does
not exist. There is no contradiction be-
tween the two statements in Justice Harlan's
Opinion. In the first, he is referring
to incidents of slavery as they had existed
in the pre-1865 history of that institu-
tion. In the second, he is referring to
26
new disabilities, imposed by State statutes
passed after the Thirteenth Amendment --
the new Black Codes -- on the freedmen.
The fourth criticism levelled by the
court below at petitioners' Thirteenth Am-
endment argument "is that it proves too
much" (26a). The Court below then added,
"Abolition under the Amendment itself of
all of the ‘incidents' to which Senator
Harlan referred would incorporate into the
Thirteenth Amendment the privacy interests
in the conjugal and parental relation, the
right to hold property, the right to bring
suit in court, the right to testify, free-
dom of speech and of the press, and the
right to an equal education" (26a).
Petitioners agree with this sentence
up to but not including the words: "free-
dom of speech and of the press, and the
right. to an equal education.”
The Framers did refer to the fact that
slavery had denied freedom of speech and
of the press to abolitionists in the South-
ern States, and one of them--John F. Farns-
worth of Illinois--complained of "the in-
dictment in southern States of men in the
North for anti-slavery publications in the
City of New York. Then came requisitions
upon the Governors of the North to surren-
27
der the bodies of these men to be taken
South to be tried" (Cong. Globe, 38th
Cong., lst Sess. 2979). The impact of
Slavery upon freedom of speech and of the
press was, in the minds of the Framers,
primarily upon the free men of the North.
Since they had never been slaves, this
kind of impact was not what the Framers
meant by badges and incidents of slavery:
that rubric was reserved for the impact of
slavery upon slaves. It is undeniable, of
course, that Southern law would have jus-
tified a master in punishing his slave for
expressing anti-slavery sentiments, but
that was a very minor aspect of the over-
whelming deprivation of personal liberty
imposed upon the slave by his chattel
status.
So far as "the right to an equal ed-
ucation"" is concerned the court below
makes clear that what it is thinking of is
"equal funding of public school systems."
In 1864-65, when the Thirty-eighth Congress
was debating the Thirteenth Amendment,
there were no public school systems any-
where in the South, and not all the States
in the North had them. The speeches of
Framers did refer to State laws forbidding
28
the education of slaves, but the type of
education which those laws forbade was
private, since there was no other in the
South at that time. This aspect of the
"proves too much" criticism turns out to
be an anachronism.
If a State legislature were to add
sections to its adoption law allowing an
adoptive parent to punish an adoptee for
expressing anti-adoption sentiments, or
forbidding anyone to give private educa-
tion to an adoptee, petitioners would con-
tend that such laws would violate the Thir-
teenth Amendment. They would probably be
struck down under the Fourteenth, because
counsel and the courts are not accustomed
to thinking in terms of the Thirteenth,
but this would prove nothing more than
that the two Amendments partially overlap
each other. But if a State legislature
were to punish nonadoptees for criticizing
adoption, or forbidding the private educa-
tion of nonadoptees, these laws would be
unconstitutional only under the Fourteenth
Amendment.
The fifth and last criticism in the
opinion of the court below is that "It is
the New York adoption laws themselves and
610 bo he PGRN WE IR ADOT I OV. OL ALS A LE
hea SAN Da Soe
29
not the sealed records laws" which "create
a new parent-child relationship between
[petitioners] and their adoptive parents.
[Petitioners] do not challenge the consti-
tutionality of the adoption laws; thus
their challenge to the sealed records laws
even if cognizable under the Thirteenth
Amendment, in the absence’ of congressional
legislation, is misdirected" (28-a).
This analysis suggests a dichotomy
between adoption laws on the one hand and
sealed records laws on the other. No such
dichotomy exists. There may be an adop-
tion law without sealed records as well
as one with sealed records. In the latter
case, the sealed records vrovision is mere-
ly a feature or aspect of the adoption law
itself, added, we are told, for the very
purpose of encouraging adoption. Petition-
ers do challenge the constitutionality of
adoption laws containing a sealed records
provision, leaving it to the court to say
whether such feature invalidates the en-
tire statute or is severable. Even if
severable (as petitioners believe it is),
however, the sealed records provision is
not somehting other than an adoption law.
Buz for the tacit exception of "the right
30
of parents and guardians to the custody
of their minor children or wards" from the
proscription of the Thirteenth Amendment,
Robertson v. Baldwin, 165 U.S. 275, 282
(1897), placing even minor children under
an adoption law with a sealed records pro-
vision would violate that Amendment. The
exception prevents this, but only during
the adoptee's minority. Once he attains
adulthood, the Thirteenth Amendment applies
to him. At that point, because he is now
an adult, no parent, natural or adoptive,
any longer has custody of him, but both,
the court below tells us, may, in their
own interests and without the adcptee's
consent, keep him in ignorance of his
orisin, and the State may aid them ir.
effectuatirg this deprivaticn.
The question may legitimately be
asked why the Thirty-ninth Congress, in
enacting the Civil Rights Act of April 9,
1866, 14 Stat. 27, left unmentioned the
first and second incidents of slavery (de-
struction of the conjugal and parent-
child relations) whilst paying close atten-
tion to the third, fourth, and fifth
incidents in Senator Harlan's list (i.e.,
31
contract, property, and judicial depriva-
tions). The answer is simple. The new
Black Codes, enacted in the wake of the
proclamation of the adoption of the Thir-
teenth Amendment, had uniformly recognized
the validity of freedmen's marriages, and
some of them even validated the preemancipa-
tion unions of ex-slaves, and the new Codes
generally recognized the legitimacy of the
offspring of freedmen, thus affirming the
parent-child relationship.
The Southern legislatures had done
this because the first and second incidents
of slavery had always been the hardest
for slavery's apologists to defend, and now
that slavery was gone, there was nothing
to be gained by insisting on their continu-
ance. On the other hand, though slavery
was gone, the ex-slaves were still there.
A sincere belief in their inferiority in-
spired the provisions in the new Black
Codes designed to reinstitute the third,
fourth, and fifth incidents of slavery.
It was, therefore, at these three incidents,
and at these alone, that Congress took aim
in enacting the Civil Rights Act of 1866.
There was no need to command the Southern
States to recognize the conjugal and parent-
child relations of the freedmen, because
32
they had already complied with Section 1
of the Thirteenth Amendment in this regard.
In Jones v. Alfred H. Mayer Co., 392
U.S. 409, 433-34 (1968), this Court provided
the means of elucidating this question, by
quoting the following passage from the speech
of Representative M. Russell Thayer of Penn-
sylvania, who had been a Framer both of the
Thirteenth Amendment and of the Civil Rights
Act of 1866, during the 1866 debate on the
latter measure:
"(w]hen I voted for the amendment
to abolish slavery . . . I did not
suppose that I was offering . . .-
a mere paper guarantee. And when I
voted for the second section of the
amendment, I felt . . . certain
that I had . . . given to Congress
ability to protect . - - the
rights which the first section gave
"
(Cong. Globe, 39th Cong., lst Sess. 1151.)
This is a far cry from saying that only
Congress can abolish an incident of slavery.
Congress, acting in its ordinary legislative
capacity under Section 2, can enforce the
abolition of an incident, but that abolition
itself was accomplished, for all time, in
1865, when Section 1 cf the Thirteenth Amend-
ment entered inte force.
33
In addition, the Civil Rights Act of
1866 contained various enforcement provi-
sions, such as criminal penalties and Federal
court jurisdictional clauses, some exclusive
others concurrent with State courts, which
the Amendment itself would not generate.
These considerations, together with massive
resistance by Southern legislatures to the
Amendment's prohibition of the third, fourth,
and fifth incidents of slavery, were reason
enough for enacting it in just the form in
which it was passed.
Anyone who thinks that the radical
Republicans of 1864-65 intended to leave it
to any future Congress, possibly dominated,
after readmission of Senators and Representa-
tives from the ex-Confederate States, by
those who had always defended slavery, to
decide whether to abolish or to permit an
incident of slavery, seriously mistakes the
mettle and the mind of those hardy spirits
of yesteryear.
34
CONCLUSION
For these reasons, a writ of certior-
ari should issue to review the judgment and
opinion of the Second Circuit.
Respectfully submitted,
(Profeggpor) Cyril C. ans, os
New Yo Law School,
57 Worth Street,
New York, N.Y. 10013.
(212) 966-3500.
Bertram E. Hirsch,
76-17 Two Hundred Fiftieth Street,
Bellerose, N.Y. 11426.
(212) 347-3022.
Attorneys for Petitioners.
September 20, 1979.
ARE aE ni ARCS MAR
la
APPENDIX A
UNITED STATES COURT OF APPEALS
For THE SECOND CIRCUIT
oe
No. 666—August Term, 1978.
(Argued March 19, 1979 Decided June 22, 1979.)
Docket No. 78-7593
>
THE AuMA Society INCORPORATED, JOYCE AARON, ELEANOR
B. Barron, Marityn Louise Beck, Susan RoBeERTA
Bropy, JOHN FRANKLIN FILIPPONE, ANNE FosBy, RONNYE
JACOVITZ FUTRELL, ROLANDE SYNGE HAMPDEN, MICHAEL
JAY HATTEN, VINCENT KoNOLA, KATRINA MAXTONE-
GRAHAM, ANITA McCartHy, RAYMOND’ RAND,
ROSEMARIE SMITH, JOAN SOMMERS, CLOTHILDE LOUISE
STARKE, Ropert VAN Laven, Hope HERMAN WurRMFELD,
and Kart M. Zimmer,
Appellants,
_—V—
Irvinc MELLON, Director of Vital Records, City of New
York, RicHarp J. Garorano, Village Clerk, Mount
Kisco, New York, Beverty La Tona, City Clerk, City
of Dunkirk, New York, the HonoraBLe Mimarp L.
Miponick, Surrogate, New York County, the
HonoRABLE BertraAM L. GELFAND, Surrogate, Bronx
County, the HonoraBLeE BERNARD M. BLoom, Surrogate,
Kings County, the HonoraBLe Louis D. Laurino, Sur-
rogate, Queens County, the HonoraBLe JOHN D. Ben-
NETT, Surrogate, Nassau County, the HONORABLE
Ernest L. SIGNORELLI, Surrogate, Suffolk County, the
3101
2a
HonorRABLE Louis B. ScuHEIMAN, Surrogate, Sullivan
County, Louise Wise Services, SPENCE-CHAPIN SERVICES
TO FAMILIES AND CHILDREN, CHILDRENS Am SOCIETY
(CuHiLp ApopTION SERVICE), JEWISH CHILD CARE ASSOCIA-
TION OF New York, and New York FOovuNDLING
HOospPItTAL,
Appellees.
Before:
LumBarD and Oakes, Circuit Judges,
and BrigANT, District Judge.*
>
Appeal from a judgment of the United States District
Court for the Southern District of New York, Milton
Pollack, Judge, dismissing the complaint challenging on
grounds of Fourteenth Amendment Due Process and
Equal Protection and the Thirteenth Amendment New
York laws which require the sealing of adoption records.
Held, judgment affirmed. The New York laws do not
violate substantive due process because of the State’s ap-
propriate recognition of the privacy interests of the
natural and adoptive parents, equal protection because the
classification is not entitled to intermediate or strict
scrutiny and because it substantially furthers important
state interests, thereby satisfying even the intermediate
test; or the Thirteenth Amendment because of the
absence of congressional characterization of the state law
as imposing a “badge or incident” of slavery.
>
* ——_ Of the Southern District of New York, sitting by designation.
3102
3a
Cyrit C. Means, Jr., Professor of Law, New York
Law School, New York, N.Y. (Bertram E.
Hirsch, New York, N.Y., of counsel), for Ap
pellants.
CHARLES Bropy, Assistant Attorney General (Robert
Abrams, Attorney General of the State of New
York), for Appellees Surrogates Midonick, Gel-
fand, Bloom, Laurino, Bennett, Signorelli, and
Scheiman.
GERALD E. Bope.tL, BopeLt & Macovern, New York,
N.Y., for Appellee New York Foundling
Hospital.
LEONARD F. MANNING, Professor of Law, Fordham
Law School, New York, N.Y., for Appellee
Jewish Child Care Association.
DonaLD J. CoHN, WessTER & SHEFFIELD, New York,
N.Y. (David A. Hom, of counsel), for Appellee
The Children’s Aid Society.
SrePHEN WIsE TULIN, PouieR TuLIN & CLARK, New
York, N.Y., for Appellee Louise Wise Services.
ALLEN G. ScHwartz, Corporation Counsel for the City
of New York (L. Kevin Sheridan and Carolyn E.
Demarest; Lillian Gewirtz and Peter Lavigne,
law clerks, of counsel), submitted a brief for Ap-
pellee Irving Mellon.
EPHRAIM LONDON, Lonpon & BUTTENWIESER, New York,
N.Y. (Helen L. Buttenweiser, of counsel), for
court-appointed law guardian.
>
3103
4a
OakEs, Circuit Judge:
This appeal presents the question whether adopted per-
sons upon reaching adulthood (“adult adoptees”) are con-
stitutionally entitled, irrespective of a showing of cause,
to obtain their sealed adoption records, including the
names of their natural parents. Appellants are adult
adoptees and an association of such persons, and they
urge that the New York statutes that require the sealing
of adoption records’ are facially invalid on Fourteenth
1 The statutes are N.Y. Dom. Rel. Law § 114, providing for the
sealing of court records pertaining to adoption unless “good
cause” is shown; N.Y. Pub. Health Law § 4138, providing for
new birth certificates in the case, inter alia, of an adoption and
destruction after microfilming or sealing of the original cer-
tificate; and N.Y. Soc. Serv. Law § 372 providing for confiden-
tiality of public and agency records pertaining tc abandoned,
delinquent, destitute, neglected, or dependent children. The
statutes in pertinent part are set out below.
N.Y. Dom. Rel. Law § 114:
If satisfied that the best interests of the adoptive child will
be promoted thereby the judge or surrogate shall make an
order approving the adoption and directing that the adop-
tive child shall thenceforth be regarded and treated in all
respects as the child of the adoptive parents or parent.
. . . Such order shall contain the full name, date and place
of birth and reference to the schedule annexed to the peti-
tion containing the medical history of the child in the body
thereof and may direct that the childs medical history be
furnished to the adoptive parents. . . . Such order and all
the papers in the proceeding shall be filed in the office of
the court granting the adoption and the order shall be
entered in books which shall be kept under seal and which
shall be indexed by the name of the adoptive parents and
by the full original name of the child. Such order, including
orders heretofore entered, shall be subject to inspection and
examination only as hereinafter provided. . . . If the con-
fidentiality is violated, the person or company violating it
can be found guilty of contempt of court... .
No person, including the attorney for the adoptive parents
shall disclose the surname of the child directly or indirectly
to the adoptive parents except upon order of the court. No
person shall be allowed access to such sealed records and
order and any index thereof except upon an order of a
judge or surrogate of the court in which the order was
3104
ek Peet
5a
Amendment Due Process and Equal Protection grounds
and on the further basis that those statutes impose upon
made or of a justice of the supreme court. No order for
disclosure or access and inspection shall be granted except
on good cause shown and on due notice to the adoptive
_— and to such additional persons as the court may
rect
N.Y. Pub. Health Law § 4138:
1. A new certificate of birth shall be made whenever.
(c) notification is received by, or proper proof is sub
mitted to, the commissioner from or by the clerk as
aforesaid of a judgment, order or decree relating to the
adoption of such person. Such judgment, order or decree
shall also be sufficient authority to make a new birth cer-
tificate with conforming change in the name of such person
on the birth certificate of any of such person’s children
under the age of eighteen years whose record of birth is on
file in the state health department ... .
3. (a) When a new certificate of birth is made the com-
missioner shall substitute such new certificate for the cer-
tificate of birth then on file, if any, and shall send the
registrar of the district in which the birth occurred a copy
of the new certificate of birth. The registrar shall make a
copy of the new certificate for the local record and hold the
contents of the original local record confidential along with
all papers and copies pertaining thereto. It shall not be
released or otherwise divulged except by order of a court of
competent jurisdiction.
(b) Thereafter, when a verified transcript or certification
of birth of such person is issued by the registrar, it shall be
based upon the new certificate, except when an order of a
court of competent jurisdiction shall require the issuance of
a verified transcript of certification based upon the original
local record of birth.
4. The commissioner may make a microfilm or other
suitable copy of the original certificate of birth and all
papers pertaining to the new certificate of birth. In such
event, the original certificate and papers may be destroyed.
All undestroyed certificates and papers and copies thereof
shall be confidential and the contents thereof shall not be
released or otherwise divulged except by order of a court of
competent jurisdiction.
(footnote continued
3105
6a
them badges or incidents of slavery in violation of the
Thirteenth Amendment. The United States District Court
5. Thereafter, when a certified copy or certified transcript
of the certificate of birth of such a person, or a certifica-
tion of birth for such person is issued, it shall be based
upon the new certificate of birth, except when an order of
a court of competent jurisdiction shall require the issuance
of a copy of the original certificate of birth.
7. Whenever the commissioner makes a new birth cer-
tificate for any person pursuant to the provisions of sub
division one of this section, he shall forward to such person,
if eighteen years of age or more, or to the parents of such
person, either a certificate of registration of birth or a cer-
tification of birth, whichever he deems appropriate under
the circumstances, without making any charge therefor.
N.Y. Soc. Serv. Law § 372:
1. Every court, and every public board, commission, in-
stitution, or officer having powers or charged with duties in
relation to abandoned, delinquent, destitute, negiected or
dependent children who shall receive, accept or commit any
child shall provide and keep a record showing:
(a) the full and true name of the child,
(b) his sex and date and place of birth, if ascertainable,
or his apparent age,
(oc) the full and true names and places of birth of his
parents, and their actual residence if living, or their latest
known residence, if deceased or whereabouts unknown and
the name and actual residence of any other person having
custody of the child, as nearly as the same can reasonably
be- ascertained,
(d) the religious faith of the parents and of the child,
(e) the name and address of any person, agency, institu
tion or other organization to which the child is committed,
placed out, boarded out, or otherwise given into care,
custody or control,
(f) the religious faith and occupation of the head or heads
of the family with whom the child is placed out or boarded
out and their relationship, if any, to the child,
(g) if any such child shall die, the date and cause of
death and place of burial,
(h) any further disposition or change in care, custody or
control of the child,
(i) the date or dates of reception and of any subsequent
disposition or change in care, custody or contro] and, in
3106
7a
for the Southern District of New York, Milton Pollack,
Judge, dismissed appellants complaint against represen-
case of adoption, the name and title of the judge or sur-
rogate making the order of adoption, the date of such order
and the date and place of filing of such order,
(j) the reasons for any act performed in reference to such
child herein required to be recorded, together with such fur-
ther information as the department may require; and shall
make to the department upon blanks provided by the
department reports of each such child placed out, or
boarded out, containing the information herein required to
be kept; and shall furnish such information to any author-
ized agency to which any such child shall be committed or
otherwise given into custody.
3. Upon application by a parent, relative or legal guardian
of such child or by an authorized agency, after due notice
to the institution or authorized agency affected and hearing
had thereon, the supreme court may by order direct the of-
ficers of such institution or authorized agency to furnish to
such parent, relative, legal guardian or authorized agency
such extracts from the record relating to such child as the
court may deem proper. The department through its
authorized agents and employees may examine at all reason-
able times the records required by this section to be kept.
4. All such records relating to such children shall be open
to the inspection of the board and the department at any
reasonable time, and the information called for under this
section and such other data as may be required by the
department shall be reported to the department, in accord-
ance with the regulations of the department. Such records
kept by the department shall be deemed confidential and
shall be safeguarded from coming to the knowledge of and
from inspection or examination by any person other than
one authorized, by the department, by a judge of the court
of claims when such records are required for the trial of a
claim or other proceeding in such court or by a justice of
the supreme court after a notice to all interested persons
and a hearing, to receive such knowledge or to make such
inspection or examination. No person shall divulge the in-
formation thus obtained without authorization so to do by
the department, or by such judge or justice.
6. The provisions of this section as to records and reports
to the department shall apply also to the placing out, adop-
tion or boarding out of a child and the acceptance of
guardianship or of surrender of a child.
3107
8a
tative record keepers and surrogates represented by the
State of New York and certain adoption agencies or
societies. Alma Society, Inc. v. Mellon, 459 F. Supp. 912
(S.D.N.Y. 1978). We affirm.’ |
Appellants argue that adult adoptees should be given
access to the records of their adoptions with no showing
of cause whatsoever. Their supporting affidavits, which
we must take as true for present purposes, indicate that
lack of access to such records causes some of them
serious psychological trauma and pain and suffering, may
cause in them or their children medical problems or
misdiagnoses for lack of history,’ may create in some per
sons a consciousness of danger of unwitting incest, and in
others a “crisis” of religious identity or what they feel is
an impairment of religious freedom because they are
unable to be reared in the religion of their natural
parents. Appellants point out that only in the last fifty
years has New York had sealed adoption records,‘ that
Scotland and Israel have had open records for some time,’
2 Appellees Children’s Aid Society and Louise Wise Services
argue that we should invoke the doctrine of abstention under (1)
Younger v. Harris, 401 U.S. 37 (1971), and progeny, (2) under
Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941), and (3)
because this is a domestic relations matter. We disagree for the
reasons 80 well stated by Judge Pollack, and we do not repeat
his: opinion. See Alma Society, Inc. v. Mellon, 459 F. Supp. 912,
914-15 (S.D.N.Y. 1978).
3 In Rhodes v. Laurino, No. 78-7243, handed down herewith,
such a claim is made.
4 From 1873 to 1924 adoption records in New York were
ublic. Several states still grant the adoptee access to original
birth certificates, e.g., 16 Ala. Code § 26-10-4 (1975); 14A Fila.
Stat. Ann. § 382.22 (West Supp. 1978); 5 Kan. Stat. § 65-2423
(1972); or to the court records of their adoption. 9 S.D. Com
piled Laws Ann. § 25-6-15 (1977).
5 Scotlard for 48 years, Adoption of Children (Scotland) Act,
1930, 20 & 21 Geo. V, c. 37, § 11(8) (adoptee at age 17); Israel
3108
PILE AALS AOS AEG, ENO TDR FEI OE SO LATTER PPL LOO
ee ee ee
ee
9a
and that England and Wales have recently changed from
closed to open records with access to adults who have ob
tained a certain age.°
The attack upon the New York statutes is three-fold.
Appellants first argue that the interest of an adult
adoptee in learning from the State (or from agencies act-
ing under compulsion of state law) the identity of his nat-
ural family is a fundamental right under the Due Process
clause of the Fourteenth Amendment. “This section af-
fords not only a procedural guarantee against the depriva-
tion of ‘liberty,’ but likewise protects substantive aspects
of liberty against unconstitutional restrictions by the
State.” Kelley v. Johnson, 425 U.S. 238, 244 (1976); see
Castaneda v. Partida, 430 U.S. 482, 503 n.2 (1977) (Mar
shall, J., concurring) (recognizing impact of discrimination
on “sense of self”). See also Moore v. City of East Cleve
land, 431 U.S. 494 (1977) (impact of housing ordinance
on family relationship).
Second, appellants argue that adult adoptees constitute
a suspect or “quasisuspect” classification under the Equal
Protection clause of the Fourteenth Amendment.’ Under
this view semi-strict or intermediate scrutiny of the New
for 18, Adoption of Children Law 5720-1960, No. 45, § 27(3), 14
Laws of the State of Israel 93, 97 (1960) (adoptee at age 18).
6 The Children Act, 1975, c. 72, § 26 (adoptee at age 18),
amending the Adoption Act, 1958, 7-8 Eliz. II, ¢.5, § 20(5). See
Levin, Tracing the Birth Records of Adopted Persons, 7 J. Fam.
L. 104 (1977). we A
7 Appellants speak in terms of a “suspect class,” relying on
Trimble v. Gordon, 430 U.S. 762, 767 (1977) (illegitimacy
“analogous to” suspect class, but not sufficiently so as to require
“our most exacting scrutiny’), and arguing that the sealed
records laws treat them worse than illegitimates. See also
Mathews v. Lucas, 427 U.S. 495, 505, 506, 510 (1976); Craig v.
Boren, 429 U.S. 190, 210-11 n.* (1976) (Powell, J., concurring).
Professor Tribe has put it:
(footnote continued
3109
4
10a
York statutes would be appropriate, and appellants main-
tain that such a review does not indicate that the
statutes are based on sufficiently important state in-
terests.
Finally, appellants argue that the Thirteenth Amend-
ment also applies to this case because the statutes that
require sealing of the adoption records as to adults con-
stitute the second of the five incidents of slavery—
namely, the abolition of the parental relation—listed by
Senator James Harlan of Iowa in a speech made during
the deliberations on the Thirteenth Amendment. See 1 B.
Schwartz, Statutory History of the United States: Civil
Rights 71, 72 (1970). Furthermore, appellants say, none
of the exceptions to the Thirteenth Amendment’ covers
Although indicating that he “would not welcome a fur
ther subdividing of equal protection analysis,” Justice
Powell, concurring in Craig v. Boren, acknowledged that
“{tJhere are valid reasons for dissatisfaction with the ‘two-
tier’ approach that has been prominent in the Court’s [equal
protection] decisions in the past decade,” and added that
“candor compels the recognition that the relatively deferen-
tial ‘rational basis’ standard of review normally applied
takes on a sharper focus when we address a gender-based
classification.” The Justice might well have added that a
growing range of cases, involving classifications other than
gender and involving a number of important but not
“constitutionally fundamental” interests, have likewise trig-
gered forms of review poised between the largely toothless
invocation of minimum rationality and the nearly fatal in-
vocation of strict scrutiny—intermediate forms of review
which Justice Powell must have had in mind when he spoke
of “sharper focus.”
L. Tribe, American Constitutional Law § 16-30, at 1082 (1978)
(footnotes omitted).
8 There are at least six recognized exceptions. The Amendment
itself describes the first, punishment for crime. Robertson v.
Baldwin, 165 U.S. 275, 282 (1897), cites three others; the “ser-
vice” exceptions include sailor's contracts, military and naval ser
vice, and “the right of parents and guardians to the custody of
their minor children or wards.” The fifth exception is “the
obligations . . . of an apprentice to his master.” Bailey v. United
3110
lla
appellants as adults. Under appellants’ view, the rights
that the Thirteenth Amendment guarantees are not sub
ject to balancing but are instead protected absolutely. We
will discuss each of appellants’ three arguments in turn.
Substantive Due Process
What appellants assert is a right to “personhood.” They
rely on a series of Supreme Court cases involving familial
relationships, rights of family privacy, and freedom to
marry and reproduce.’® As they put it, “an adoptee is
someone upon whom the State has, by sealing his records,
imposed lifelong familial amnesia . . . injuring the
adoptee in regard to his personal identity when he was
too young to consent to, or even know, what was happen-
ing.” The district court considered that intrusions on
privacy are justifiable in the public interest, 459 F. Supp.
at 916, but that the natural parent has a countervailing
right of privacy and right to be let alone, citing Stanley
v. Georgia, 394 U.S. 557 (1969). The court also referred
to the right of privacy of the adopting parents,
presumably referring to “the disruption caused by locating
their adoptive child’s natural parents.” 459 F. Supp. at
916. °
States, 219 U.S. 219, 243 (1911); Clyatt v. United States, 197
U.S. 207, 216 (1905). The sixth is compulsory work on public
roads. Butler v. Perry, 240 U.S. 328 (1916).
9 The term “personhood” originated with Professor Freund as an
alternative to “autonomy” or “privacy” and was in turn adopted
by the late Judge Craven of the Fourth Circuit. See Craven, Per
nee The Right to be Let Alone, 1976 Duke L.J. 699, 702 &
n.15.
10 The cases are collected in I N. Dorsen, P. Bender & B.
Neuborne, Emerson, Haber & Dorsen’s Political and Civil Rights
in the United States, ch. XII, § A (4th ed. 1976); II N. Dorsen,
P. Bender, B. Neuborne & S. Law, Emerson, Haber & Dorsen’s
ge and Civil Rights in the United States, ch. XXXIII (4th
1979).
3111
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We could readily take a “pigeon-hole” approach and in
doing so, because appellants’ novel claims do not fit into
any as yet recognized category of “privacy,” exclude them.
For example, there is not involved a general “individual
interest in avoiding disclosure of personal matters,”
Whalen v. Roe, 429 U.S. 589, 599 (1977). Although it
could be argued that appellants do have an “interest in
independence in making certain kinds of important decr
sions,” id. at 599-600," that categorization still would
leave the question whether in a situation involving both
natural parents and adoptive parents the adult adoptee
should have “independence” in determining whether he or
she shall obtain knowledge of the natural parents. So,
too, with a categorization of privacy as including “repose,
sanctuary, and intimate decision,” see Comment, A Tax-
onomy of Privacy: Repose, Sanctuary, and Intimate Dect
sion, 64 Cal. L. Rev. 1447 (1976), or incorporating the
rather vague concepts of “autonomy,” “intimacy,” and
“identity.” See Gerety, Redefining Privacy, 12 Harv.
C.R.C.L. L. Rev. 233, 236, 268 (1977); see generally L.
Tribe, American Constitutional Law § 15-2 (1978).
We think that it advances analysis, however, to ex-
amine more closely the character of the choices and in-
formation that we are asked to treat as special and the
factual framework of the decision that we are asked to
render. See id. § 15-1, at 887. We note, of course, that
we are dealing with the “family” in general and with two
families in particular—first, the natural parent(s) who has
(have) surrendered custody of the adoptee child to the
11 The Court enumerated these decisions in Paul v. Davis, 424
U.S. 693, 713 (1976), as “matters relating to marriage, procrea-
tion, contraception, family relationships, and child rearing and
education.” Appellants presumably base their claim on “family
relationships.”
3112
13a
State and in turn an agency or other family, and second,
the adopting family which has, presumably, nurtured the
child to the age of adulthood. The adoptee’s attainment of
majority is a definite event in the adoptee’s life; but it
occurs independent of either the legally terminated
natural family relationship or the legally assumed adop-
tive one and does not affect termination or continuation
of those relationships. The information sought is informe
tion as to the identity of the real parent(s) that was con-
cealed from one and all upon adoption as a matter of law
and that may indeed have been a consideration in the
willingness of the real parent(s) to give up the child for
adoption. With this factual background two recent
Supreme Court cases have a bearing upon our delibera-
tions.
The first of these is Quilloin v. Walcott, 434 U.S. 246
(1978). There the appellant, the natural father of an il-
legitimate child, sought to prevent the husband of the
child's mother from adopting the child although the
natural father had never attempted to legitimate the child
who had always been in the mother’s custody. The Court
held that the application of a “best interests of the child”
standard did not violate appellant’s substantive rights
under the Due Process clause. The Court noted its
recognition that the relationship between parent and child
is constitutionally protected, referring to Wisconsin v.
Yoder, 406 U.S. 205 (1972); Stanley v. Illinois, 405 U.S.
645 (1972); and Meyer v. Nebraska, 262 U.S. 390 (1923).
It also noted its own recognition in Prince v.
Massachusetts, 321 U.S. 158, 166 (1944), that “the
custody, care and nurture of the child reside first in the
parents.” The Court expressed “little doubt” that the
State’s attempt “to force the break-up of a natural family,
over the objections of parents and children, without some
3113
l4a
showing of umfitness” would violate the Due Process
Clause, citing Smith v. Organization of Foster Families
for Equality & Reform, 431 U.S. 816, 862-63 (1977)
(Stewart, J., concurring). But the Court emphasized that
“the result of the adoption in this case is to give full
recognition to a family unit already in existence, a result
desired by all concerned, except appellant.” 434 U.S. at
255.
Of course Quilloin is distinguishable from the case at
bar because there a natural father whe had never sought
nor had actual or legal custody of a child was seeking to
prevent adoption, while here the child himself—now an
adult—is seeking information. But the relevance of the
case is the Court’s “full recognition [of] a family unit
already in existence.” Jd. And even though appellants are
adults we must assume that they are still part of their
adoptive families, families still in existence as to each of
them which might be adversely affected by the release of
information as to the names of natural parents or the
unsealing of the adoption records. At least it would seem
that there is an interest on the part of the adopting
parents that is of recognized importance, one that,
however, they surely can waive if they see fit to do so.”
In Zablocki v. Redhail, 434 U.S. 374 (1978), the second
recent case, a majority of the Court held that the right to
marry, a “fundamental” interest under the Equal Protec-
tion Clause, was abridged by a statute requiring court
permission to marry where the applicant has minor issue
not in his custody and whom he is under obligation to
support. The “right to marry” was said to be “of fun-
damental importance for all individuals,” 434 U.S. at 384,
12 We note that N.Y. Dom. Rel. Law § 114, supra note 1, re
quires that a court acting upon a request for disclosure shall
notify the adoptive parents of the proceedings.
3114
15a
and “part of the fundamental ‘right of privacy implicit in
the Fourteenth Amendment’s Due Process Clause.” Jd. The
Court quoted the references in Griswold v. Connecticut,
381 U.S. 479, 486 (1965), to marriage as “coming
together for better or for worse, hopefully enduring, and
intimate to the degree of being sacrea as well as “an
association that promotes a way of life, not causes; a har
mony in living, not political faiths; a bilateral loyalty, not
commercial or social projects.” Thus the Court held in
Zablocki that the decision to marry was “among the per-
sonal decisions protected by the right of privacy.” 434
U.S. at 384. See also Cleveland Board of Education uv.
LaFleur, 414 U.S. 632, 639-40 (1974) (“freedom of per-
sonal choice in matters of marriage and family life is one
of the liberties protected by the Due Process Clause”). The
Zablocki Court went on to say:
The woman whom appellee desired to marry had a
fundamental right to seek an abortion of their ex-
pected child . . . or to bring the child into life to
suffer the myriad social, if not economic, disabilities
that the status of illegitimacy bring .. . . Surely, a
decision to marry and raise the child in a traditional
family setting must receive equivalent protection.
Id. at 386.
Again, although Zablocki is not directly pertinent to
this case, it does recognize that we must look to the
nature of the relationships and that choices made by
those other than the adopted child are involved. Under all
the applicable precedents, the State may take these
choices into consideration and protect the natural
mother’s choice of privacy which not all have forsaken
even if appellants are correct, as we are told, that many
3115
l6éa
mothers would be willing in this day and age to have
their adult adopted children contact them." So, too, a
state may take into account the relationship of the adopt-
ing parents, even if, as appellants assert, many of them
would not object to or would even encourage the adopted
child’s seeking out the identity of or relationship with a
natural parent. The New York statutes in providing for
release of the information on a “showing of good cause”
do no more than to take these other relationships into ac-
count. As such they do not unconstitutionally infringe
upon or arbitrarily remove appellants’ rights of identity,
privacy, or personhood. Upon an appropriate showing of
psychological traurna, medical need, or of a religious iden-
tity crisis—though it might be doubted upon a showing of
“fear of unconscious incest”—the New York courts would
appear required under their own statute to grant permis
sion to release all or part of the sealed adoption records."
Equal Protection
Appellants begin their equal protection analysis with
the argument that adult adoptees are a suspect classifica-
tion (and the correlative argument that the State has uo
compelling interests to support the validity of the sealed
records laws). Appellants refer us to Trimble v. Gordon,
430 U.S. 762, 766 (1977), where the Court stated that
classifications based on illegitimacy fall in a “realm of less
than strictest scrutiny’ although the scrutiny “is not a
13 Appellants cite to us one study indicating that 128 out of 152
natural families selected at random agreed to meet an adult
adoptee. Jones, The Sealed Adoption Record Controversy: Report
of a Survey of Agency Policy, Practice and Opinion (1975).
14 The courts concededly have done so from time to time.
3116
17a
toothless one.” By the citation of Trimble, appellants
suggest that they are at least entitled to the same level
of constitutional scrutiny as illegitimates who have been
termed a “sensitive” or quasi-suspect category for which
the appropriate level of scrutiny is “intermediate,” not
“strict,” see L. Tribe, supra, §§ 16-30, -31. But appellants
cite us to no case holding that adoptees are a “sensitive”
or quasi-suspect classification. Instead they argue that
because the overwhelming majority of adoptees adopted
by nonrelatives are illegitimate and because, they say, the
State actually treats adoptees worse than nonadopted il
legitimates, who at least know who their natural mothers
are or were and often their natural fathers as well, strict
scrutiny is the applicable standard of analysis under the
Equal Protection Clause. Of course, as Professor Gunther
has said, scrutiny that is “‘strict’ in theory” is usually
“fatal in fact,” Foreword: In Search of Evolving Doctrine
on a Changing Court: A Model for a Newer Equal Protec-
tion, 86 Harv. L. Rev. 1, 8 (1972). Second, appellants
argue for application of “strict scrutiny” on the basis of
suspect classification status under the Thirteenth Amend-
ment on the theory that “{alny group upon which a State
imposes . . . a badge or incident of slavery is ipso facto
also a suspect category ‘under the Equal Protection
Clause.” :
We are not persuaded that strict or even intermediate
scrutiny is the appropriate standard of vlan in this
: ants’ second strict scrutiny argument requires
little me The Supreme Court has been loathe to
expand the list of traits subject to this most rigorous
} i f scrutiny
The Trimble Court was referring to the standard o
" set forth in Mathews v. Lucas, 427 U.S. 495, 505, 506, 510
(1976).
3117
18a
level of review," and we are confident that the Court
would not include a trait simply because it is a “badge or
incident of slavery.” Here, indeed, we cannot even con-
clude that the State has subjected appellants to such a
“badge or incident,” as the subsequent section of our opin-
ion explains.
Appellants’ first argument for strict scrutiny, although
more plausible, is also flawed. Simply because most adult
adoptees are allegedly illegitimates, it does not follow that
adoptees are subject to the same level of constitutional
scrutiny as illegitimates, much less a greater level.’”
Moreover, there is a more fundamental, structural defect
in the argument that discrimination between adult
adoptees (who gain access to their adoption records only
upon good cause) and non-adopted illegitimates (who will
usually have ready access to the information that adop
tion records contain) is quasi-suspect. When a court
decides that a classification is suspect or quasi-suspect, it
has concluded that the State has employed a questionable
trait to distinguish those whom the law should burden
from those whom the law should not. Here, however, the
distinguishing trait between adult adoptees and non-
adopted illegitimates, the allegedly similarly situated
classes, is not illegitimacy—indeed, both of these classes
are largely comprised of illegitimates, according to ap
pellants. The trait, rather, is adopted status.
16 See, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973); San
po Independent School Dist. v. Rodriguez, 411 U.S. 1
(1978).
17 Appellant's argument appears to invoke disproportionate im-
pact analysis. But the Supreme Court has held, in the context of
racial discrimination, that the disproportionate impact of state
action upon a suspect class does not, by itself, warrant strict
scrutiny. Washington v. Davis, 426 U.S. 229 (1976). Similarly,
the disproportionate impact of New Yorks policy upon il-
legitimates does not by itself warrant the intermediate scrutiny
that an explicit discrimination against illegitimates would justify.
3118
19a
Appellants present no arguments in favor of treating
classifications by adopted status as even quasi-suspect, en-
titled to an intermediate level of judicial scrutiny. Dis-
crimination against illegitimates is generally so treated be
cause of the illogic and injustice of stigmatizing a child in
order to express disapproval of the parents’ liaisons.
Mathews v. Lucas, 427 U.S. 495, 505 (1976), quoting Weber
vu. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972).
This rationale is less apposite to discrimination against
adopted persons. If adopted persons experience social
stigma, it is not as intense or pervasive as illegitimates suf-
fer. Moreover, the present statute notwithstanding, the
adopted are not generally subject to extensive legal dis-
abilities and thus have less of a claim to judicial protection
than illegitimates.
Even assuming that the classification here were subject
to intermediate scrutiny,”* it would not violate equal protec-
tion; for we conclude that it is substantially related to an
important state interest. See Craig v. Boren, 429 U.S. 190,
197 (1976). As noted above, appellants argue that they are
similarly situated to non-adopted illegitimates. By their
claim to suspect status, appellants apparently argue in the
alternative that adopted persons should be compared to
non-adopted persons generally. The question, in either case,
is whether the two classes are sufficiently different with
respect to an important governmental interest to justify
18 In arguing that the adoptees here are an even more “suspect”
group than illegitimates, appellants allege that adoptees are
treated more unfairly than illegitimates because adoptees do not
know their natural parents’ identities. To the extent that this
argument emphasizes appellants’ interest in securing that
knowledge, it is better understood as an argument for fundamen-
tal interest status than for suspect category status. But we do
not believe that such an interest should be considered fundamen-
tal, largely for the reasons given in our discussion of the
substantive due process argument. Even if the interest is “quasi-
fundamental” and subject to intermediate scrutiny, the classifica-
tion is not invalid, as the text infra indicates.
3119
Se me ep ne ee he ee ee
Sis igi a a a
WON a Sl a, Se a pe we the « ~ zn — ”
20a
treating the two classes differently." In evaluating this
question under the intermediate level of review we must, as
in the case of rational basis scrutiny, look to the current ar-
ticulation of the rationale of the statute as advanced by the
appellants themselves, Massachusetts Board of Retirement
v. Murgia, 427 U.S. 307, 314 & n.6 (1976) (per curiam);
Johnson v. Robison, 415 U.S. 361, 376 (1974). We must be
sure that the rationale advanced is not simply an after-
thought supplied purely by hindsight. Cleveland Board of
Education v. LaFleur, 414 U.S. 632, 653 (1974) (Powell, J.,
concurring). Rather, we must look to the actual purposes of
the statute, Weinberger v. Wiesenfeld, 420 U.S. 636, 648
n.16 (1975); see also Eisenstadt v. Baird, 405 U.S. 438,
448-49 (1972), and we must ensure that the individual has
the opportunity to rebut any overbroad presumptions that
seriously affect the fairness of the scheme. Craig v. Boren,
supra, 429 U.S. at 199; Cleveland Board of Education v. La-
Fleur, supra; Crawford v. Cushman, 531 F.2d 1114,
1123-26 (2d Cir. 1976).
Judged by these standards, the New York sealed record
statutes do not want constitutional validity. The statutes,
we think, serve important interests. New York Domestic
Relations Law §114 and its related statutes represent a
considered legislative judgment that the confidentiality
statutes promote the social policy underlying adoption laws.
See In re Anonymous, 89 Misc.2d 132, 133, 390 N.Y.S.2d
779, 781 (Surr. Ct. 1976). Originally, sealing adoption
records was discretionary with the court, 1924 N.Y. Laws,
ch. 323, §113, but in 1938 confidentiality of adoption
records became mandatory. 1938 N.Y. Laws, ch. 606 § 114.
As late as 1968, the legislature enacted various amend-
ments to increase the assurance of confidentiality. 1968
19 _ See generally Note, Equal Protection: A Closer Look at Closer
Scrutiny, 76 Mich. L. Rev. 771, 774, 814-21 (1978).
3120
2la
N.Y. Laws, ch. 1038. Moreover, the purpose of a related
statute, Section 4138 of the Public Health Laws, was to
erase the stigma of illegitimacy from the adopted child's life
by sealing his original birth certificate and issuing a new
one under his new surname. And the major purpose of
adoption legislation is to encourage natural parents to use
the process when they are unwilling or unable to care for
their offspring. New York has established a careful leg-
islative scheme governing when adoption may occur and
providing for judicial review, to encourage and facilitate the
social policy of placing children in permanent loving homes
when a natural family breaks up. As the court of appeals
stated in Scarpetta v. Spence-Chapin Adoption Service, 28
N.Y.2d 185, 195, 321 N.Y.S.2d 65, 73, cert. denied, 404
U.S. 805 (1971), “i]t cannot be doubted that the public
policy of our State is contrary to the disclosure of the
names and identities of the natural parents and prospective
adoptive parents to each other.” (Footnote omitted.) Forty-
two other states, according to the State of New York, re
quire that birth and adoption records be kept confidential,
indicating the importance of the matter of confidentiality.
See also Uniform Adoption Act (U.L.A.) § 16(2) (rev. 1969)
(adoption records “are subject to inspection only upon con-
sent of the Court and all interested persons; or in excep-
tional cases, only upon an order of the Court for good cause
shown”). These significant legislative goals clearly justify
the State’s decision to keep the natural parents’ names
secret from adopted persons but not from non-adopted per-
sons.
To be sure, once an adopted child reaches adulthood,
some of the considerations that apply at the time of adop
tion and throughout the child’s tender years no longer apply
or apply with less force. [legitimacy might stigmatize an
adult less than a child, and the goal of encouraging adop
3121
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22a
tion of unwanted and uncared for children might not be sig-
nificantly affected if adult adoptees could discover their
natural parents’ identities. But the state does have an in-
terest that does not wane as the adopted child grows to
adulthood, namely, the interest in protecting the privacy of
the natural parents. “[T]he liberty interest in family privacy
has its source, and its contours are ordinarily to be sought,
not in state law, but in intrinsic human rights .. . .” Smith
v. Organization of Foster Families for Equality & Reform,
431 U.S. 816, 845 (1977) (footnote omitted) (examining the
right of a natural family to the return of its child from the
care of a foster family). Whether or not the State’s interest
is “compelling,” as the court in Mills v. Atlantic City De
partment of Vital Statistics, 148 N.J. Super. 302, 372 A.2d
646, 653 (Super. Ct. Ch. Div. 1977), and the court below,
459 F. Supp. at 917, suggested, it is an important interest,
and one which justifies keeping the records confidential
regardless of the adopted child's age.
We also believe that the statutory classification is “sub
stantially” related to this interest. To be sure, the law is
somewhat overinclusive; for some natural parents un-
doubtedly would not object to revealing their identities to
their children, and some adult adoptees have an extraor-
dinary need for their records that might outweigh their
natural parents’ need for privacy. But a law does not violate
equal protection simply because it results in overinclusion
or underinclusion, i.e., some “misfit.” The question, rather,
is whether the differences between those burdened and
those not burdened by a law are substantial enough to jus-
tify treating the two classes differently.*° Here, the leg-
islature has not unreasonably concluded that a larger pro-
portion of the natural parents of adopted children than of
non-adopted children would want to keep their identities
20 _ See id.
3122
23a
private. That is enough to make the statutory classification
constitutional.
Moreover, we note that the provision for release of adop
tion records “on good cause shown” substantially mitigates
the possible overbreadth of the statute. The New York
courts have granted access for aid in psychiatric «r psycho-
logical treatment, In re “Anonymous,” 92 Misc.2d 224, 399
N.Y.S.2d 857 (Surr. Ct. 1977); In re Maxtone Graham, 90
Misc.2d 107, 393 N.Y.S.2d 835 (Surr. Ct. 1975), and for in-
formation about genetic conditions. In re Chattman, 57
A.D.2d 618, 393 N.Y.S.2d 768 (1977). Thus this case
presents an entirely different situation from what it would
have if the State permitted no access on any ground. The
permitted showing of good cause promotes individualized
treatment, a form of structural justice. See Crawford v.
Cushman, supra; L. Tribe, supra, ch. 17. Appellants do not
suggest that the New York courts have been overly reluc
tant to find good cause; we certainly must assume the con-
trary. Indeed, the cases to which the parties have referred
us indicate that some New York courts have appropriately
recognized good cause in a variety of circumstances. We
find, in short, no basis, even under the intermediate
scrutiny standard, for holding that the New York statutes
violate the Equal Protection Clause.
Thirteenth Amendment
Appellants make the novel argument, one concededly not
based on the decided cases, that the Thirteenth Amend
ment’s prohibition of slavery and involuntary servitude
gives them an absolute right to release of their adoption
records. Appellants first assert that what rights the Thir-
teenth Amendment protects it protects absolutely, that is,
there is no balancing test and no interest of any kind that
can preclude enforcement of the proscriptions where they
apply. Second, appellants assert that the Thirteenth Amend-
3123
24a
ment does in fact apply here. The argument is, as we have
suggested, that in abolishing slavery and involuntary ser-
vitude the Framers also intended to abolish five “necessary
incidents of slavery.” We address only the second point be
cause we find that the Amendment is entirely inapplicable
to this case.
Appellants refer us particularly to the speech of Senator
James Harlan of Iowa of April 6, 1864, in which he set
forth a number of such incidents. The second named was
the abolition practically of the parental relation, rob
bing the offspring of the care and attention of his par-
ents, severing a relation which is universally cited as
the emblem of the relation sustained by the Creator to
the human family. And yet, according to the matured
judgment of these slave States, this guardianship of
the parent over his own children must be abrogated to
secure the perpetuity of slavery.
1 B. Schwartz, supra, at 72. Appellants go so far as to say
that the New York sealed record system is “less humane”
than New Mexico peonage, under which system a child con-
tracted into peonage ceased to be bound upon obtaining the
age of majority, see Jaremillo v. Romero, 1 N.M. 190
(1857), because New York adoptees are subject to a “lifelong
denial of knowledge of their natural origins.” Appellants
liken their situation also to that of the antebellum South
where a slave child was “sold off” while too young to re-
member his parents and grew up separated from them by
inability to communicate as well as by distance. The
‘analogy according to appellants is that however literate
they may be, they cannot write to their natural parents,
cannot visit them, and thereby wear a “badge or incident”
of slavery.
3124
25a
This Thirteenth Amendment argument simply does not
conform to the Supreme Court’s interpretations of the Thir-
teenth Amendment. The Court has never held that the
Amendment itself, unaided by legislation as it is here,
reaches the “badges and incidents” of slavery as well as the
actual conditions of slavery and involuntary servitude. See
Palmer v. Thompson, 403 U.S. 217, 226-27 (1971); Jones uv.
Alfred H. Mayer Co., 392 U.S. 409, 439, 440 (1968); Plessy
v. Ferguson, 163 U.S. 537, 542 (1896); The Civil Rights
Cases, 109 U.S. 3, 20-21, 23, 24, 25 (1883); The Slaughter
House Cases, 83 U.S. (16 Wall.) 36, 69, 72 (1873). Indeed,
all indications are to the contrary. Notwithstanding Con-
gress’s broad authority to legislate under § 2 of the Amend-
ment, Palmer, supra; Jones, supra; The Civil Rights Cases,
109 U.S. at 20-21, the Court has directly invoked the
Amendment only to strike down state laws imposing the
condition of peonage. See Pollock v. Williams, 322 U.S. 4
(1944); Bailey v. Alabama, 219 U.S. 219 (1911). Moreover,
the Court has indicated that for purposes of judicial en-
forcement under the express prohibition of the Amendment
itself—“{nJeither slavery nor involuntary servitude . . . shall
exist”—the Court will define “slavery” narrowly. Palmer,
supra. Abolition of the badges and incidents the Court has
left to Congress. f
Appellants do not argue that the denial of complete ac
cess to and disclosure of their adoption records constitutes
the imposition of slavery or involuntary servitude. Rather,
appellants argument is that “New York’s sealed records
laws impose upon them [an] incident of slavery’ and that
“(t]he Thirteenth Amendment .. . all by itself and without
any aid from an act of Congress abolished and destroyed
‘the incidents of slavery.” The decided cases show that we
must reject this absolutist view of the Thirteenth Amend-
ment. Even as the first Mr. Justice Harlan dissented in
3125
sry
ep te teen eb ewe pie ee pe ee
26a
Plessy v. Ferguson, supra, on the ground that the Louisiana
statute which required separate railway accommodations for
white and black passengers infringed “the personal liberty,”
163 U.S. at 557, guaranteed under the Thirteenth, Four
teenth, and Fifteenth Amendments, he indicated that the
Thirteenth Amendment alone could not have required such
a result. Although he wrote that the Amendment “prevents
the imposition of any burdens or disabilities that constitute
badges of slavery or servitude,” id. at 555, still he did not
adopt the absolutist position urged herein. Rather, he stated
that the Amendment was “inadequate to the protection of
the rights of those who had been in slavery’; and so “it was
followed by the Fourteenth Amendment.” Jd. If the Thir-
teenth Amendment had by its own force and effect abol-
ished all badges and incidents, all vestiges, of slavery, it
would not have been inadequate. So, too, in his dissent in
The Civil Rights Cases, supra, Mr. Justice Harlan advanced
the position not that the Thirteenth Amendment itself had
abolished the “burdens and disabilities which constitute
badges of slavery and servitude,” 163 U.S. at 35, but that
Congress had the authority under its power to eradicate the
badges and incidents to require equal accommodations.
The problem, then, with appellants’ argument is that it
proves too much. Abolition under the Amendment itself of
all of the “incidents” to which Senator Harlan referred
would incorporate into the Thirteenth Amendment the pri-
vacy interests in the conjugal and parental relation, the
right to hold property, the right to bring suit in court, the
right to testify, freedom of speech and of the press, and the
right to an equal education. See 1 B. Schwartz, supra, at
72-74. Such a result would be inconsistent with the explicit
or implicit rationale of many Supreme Court cases dealing
with these rights. The Court would not have had to in-
corporate the First Amendment in the Fourteenth to make
3126
27a
it applicable to the States in, e.g, Fiske v. Kansas, 274 U.S.
380 (1927), or Near v. Minnesota, 283 U.S. 697 (1931), if
the Thirteenth Amendment had already done so; nor in fact
would state action be required for a First Amendment viola-
tion, see Hudgens v. NLRB, 424 U.S. 507, 513 (1976),
because the Thirteenth Amendment reaches private con-
duct. See Griffin v. Breckenridge, 403 U.S. 88, 104-05
(1971); Jones v. Alfred H. Mayer Co., supra. The Court's
privacy decisions, see notes 9-10 and accompanying text
supra, would have rested on the Thirteenth Amendment
and not some combination or penumbra of the First, Third,
Fourth, Fifth, Ninth, and Fourteenth Amendments, see
Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965); and,
perhaps, there would have been no dispute over the equal
funding of public school systems. See San Antonio
Independent School District v. Rodriguez, 411 US. . 1
(1973). Moreover, appellants’ absolutist view of the Thir-
teenth Amendment would render largely superfluous the
Due Process and Equal Protection Clauses of the Fourteenth
Amendment as well as the civil rights statutes now codified
at 42 U.S.C. §§ 1981 et seg. We are appropriately reluctant
to reach such a result. The Supreme Court has never con-
sidered that the “badges or incidents” went beyond those
listed in the 1866 Civil Rights legislation, viz., a lack of
“‘the same right to make and enforce contracts, to sue, be
parties, give evidence, and to inherit, purchase, lease, sell
and convey property, as is enjoyed by white citizens.
Jones v. Alfred H. Mayer Co., supra, 392 U.S. at 441 n.78,
citing The Civil Rights Cases, supra, 109 U.S. at 22; see
iffin v. Breckenridge, supra.
a ea we point out the doubtful appli-
cability of the second incident of slavery, upon which appel-
lants rely, to the sealed records laws. Although it is doubt-
less true that an “incident” of slavery (in the original sense)
3127
| 28a 29a
| APPENDIX B
was the abolition of the parental relation, i.e., the offspring
of a slave was deprived of the care and attention of parents,
see 1 B. Schwartz, supra, the New York sealed records laws
UNITED STATES COURT OF APPEALS
do not deprive appellants of their parental relation. It is the FOR THE
New York adoption laws themselves and not the sealed
| records laws that recognize the divestment by natural SECOND CIRCUIT
parents of their guardianshiv because of formal surrender,
abandonment, or forfeitue by unfitness or jeopardy of the At a stated Term of the United
child’s best interests; and it is the adoption laws that create
a new parent-child relationship between appellants and States Court of Appeals for the Second
their adoptive parents. Appellants do not challenge the con-
Fi stitutionality of the adoption laws; thus their challenge to Circuit, held at the United States Court-
the sealed records’laws, even if cognizable under the Thir
house in the City of New York, on the
teenth Amendment in the absence of congressional legisla- . ,
f tion, is misdirected. Appellants are left to their remedies twenty-second day of June one thousand
{ under the New York statute or with the New York
i legislature. nine hundred and seventy~-nine.
Judgment affirmed.
F Present:
HON. J. EDWARD LUMBARD
Circuit Judge
HON. JAMES L. OAKES
Circuit Judge
HON. CHARLES L. BRIEANT
District Judge
78-7593
3128
570—6-26-79 © USCA—4391
RECORD PRESS, INC., 157 Chambers St., N.Y. 10007, (212) 243-5775
30a
THE ALMA SOCIETY, INC.,
Plaintiffs-Appellants,
IRVING MELLON, ET AL.,
Defeandants~-Appellees.
78-7593.
Appeal from the United States
District Court for the Southern District
of New York.
This cause came on to be heard on
the transcript of record from the
United States District Court for the
Southern District of New York, and was
argued by counsel.
On consideration whereof, it is
now hereby ordered, adjudged, and
decreed that the judgment of said
3la
District Court be and it hereby is
affirmed in accordance with the
opinion of this court with costs to be
taxed against the appellants.
A. DANIEL FUSARO,
Clerk
BY: Arthur Heller,
Deputy Clerk
SE
Sao
‘ ik ied anal dn Pbieb ing. snaittieds etaaativntibe beatae
912
913
APPENDIX C _ —
Cite as 459 F.Supp. 912 (1978)
The ALMA SOCIETY INCORPORATED
et al., Plaintiffs,
v.
Irving MELLON, Director of Vital
Records, City of New York, et
al, Defendants.
. No. 77 Civ. 2527(MP).
United States District Corrt,
S. D. New York.
Nov. 2, 1978.
Cyril C. Means, Jr., New York City, for
plaintiffs.
Charles L. Brody, Asst. Atty. Gen. of the
State of New York, New York City, Beryl
M. Kuder, Asst. Corp. Counsel] of the City of
New York, New York City, for defendant
Officials.
Polier, Tulin, Clark & Neff by Stephen
Wise Tulin, New York City, for defendant
Louise Wise Services.
Simpson, Thacher & Bartlett, New York
City, by Wesley N. Fach, Jr., Ronald L.
Ginns, New York City, for Spence-Chapin
Services.
Webster & Sheffield, New York City, by
David A. Hom, Donald J. Cohn, New York
City, for Children’s Aid Society.
Bodell & Magovern, New York City, by
Gerald E. Budell, New York City, for Jew-
ish Child Cure Association of N.Y. and New
York Foundling Hospital.
Buttenwieser & Josephs, New York City,
Helen L. Buttenwieser, New York City,
Court-appointed Law Guardian.
32a
33a
459 F. Supp. at 913-914
. DECISION
POLLACK, District Judge. :
ne defendants have moved to dismiss
the amended complaint herein or in the
alternative to abstain from decision until
the statutes are interpreted by the state ~
court. For reasons given hereafter, the suit
will be dismissed.
The plaintiffs are adults who were adopt-
ed as children and now seek access to their
original birth certificates, the Court records
in their adoption proccedingy, and the rec-
ords of any private agencies involved in
their adoptions.
Various New York statutes require that
these records be sealed and that access to
914
them be granted only by Court order. Pub-
lic Health Law, Section 4138; New York
City Administrative Code, Section 567-2.0
(original birth certificates); Domestic Rela-
tions’ Law, Section 114 (court records); So-
cin! Services Law, Section 372 (agency rec-
ords)?
These statutes are quoted by the plain-
tiffs at pages 8 to 14 of the amended com-
plaint. Domestic Relations Law, Section
114, in particular requires that an order
allowing access to Court records may be
granted “on good cause shown.”
So far as the Court can determine only
one plaintiff, Maxtone-Graham, applied to
the st: te courts for access to her records,
which was granted in part.
l~-
34a
459 F. Supp. at 914
The defendants are municipal officials
who have custody of the original birth cer-
tificates of the plaintiffs; Surrogates of the
counties in which twelve of the plaintiffs
were adopted and in which the Court rec-
ords in their adoption proceedings are now
kept under seal; and five private agencies
that handled the adoptions of fourteen of
the plaintiffs and that now keep their rec-
ords of these adoptions under seal.
The plaintiffs argue that adult adoptees
should be given access to the records of
their adoptions with no showing of cause
whatsoever. The present system of requir-
ing a showing of cause and a Court order to
gain access, the plaintiffs say, leads to psy-
chological trauma, risk to health due to
ignorance of the medical history of the
adoptee and his natural ancestors, danger
of incest, and a burden on the free exercise
of the adoptee’s religion.
For these reasons, the plaintiffs urge that
the New York statutes violate the First,
Fourth, Ninth, Thirteenth and Fourteenth
Amendments to the Constitution of the
United States. The plaintiffs therefore ask
that the Court declare these statutes uncon-
stitutional and enjoin their enforcement
against adult adoptees.
There are some threshold procedural
questions to be dealt with before the merits
of the claims are reached.
35a
459 F. Supp. at 914
{1] 1. Certain defendants argue that
the principles of Younger v. ‘Harris, 401
U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971),
require that the complaint be dismissed.
The plaintiffs counter that Younger applies
only when state proceedings in the matter
are pending.
The plaintiffs’ argument is correct. The
Supreme Court wrote in its most recent
case construing Younger that its principles
were involved “when litigation between the
same parties and raising the same issues is
or apparently soon will be pending in a
State Court.” Trainor v. Hernandez, 431
U.S. 434, 440, 97 S.Ct. 1911, 1916, 52 L.Ed.2d
486 (1977). See also Maher v. Doe, 432 U.S.
526, 527, 97 S.Ct. 2474, 2475, 53 L.Ed.2d 534
(1977) (per curiam). That case was remand-
ed to apply the Younger doctrine “if a
relevant State proceed.ig was pending.”
In two of the three cases in which the
defendants say that Younger was applied
where no State proceeding was pending, a
State proceeding was indeed pending.
Schacter v. Whalen, 445 F.Supp. 1376 (S.D.
N.Y.1978) (pending administrative proceed-
ing); Merrick v. Merrick, 441 F.Supp. 143
(S.D.N.Y.1977) (pending child-support ac-
tion). In the third case, Williams v. Wil-
liams, 582 F.2d 120 (8th Cir. 1976), the
plaintiff sued a state court judge and
sought a declaration that a judgment en-
tered by that judge was unconstitutional
and an injunction against its enforcement.
The Eighth Circuit held that Younger re-
quired dismissal because the judgment re-
mained open to collateral attack in state
court. Even if Williams was a proper ex-
tension of Younger, it does not apply here
because no state judgment has been en-
tered.
; 36a
459 F. Supp. at 914-915
[2] 2 It is urged that Railroad Com-
mission v. Pullman Co., 312 U.S. 496, 61
S.Ct. 643, 85 L.Ed. 971 (1941) applies herein.
This involves an inquiry focused on the
possibility that the state courts may inter-
pret a challenged state statute so as to
eliminate or al least alter materially the
constitutional question presented.
The defendants argue that if the plain-
tiffs applied to the state courts for access to
915
their records, those Courts might construe
“gourd cause” in a way that would allow the
plaintiffs to see their records, and therefore
that this Court should abstain from decid-
ing the constitutional issues raised by the
complaint. In this the defendants rely on
Yesterday's Children v. Kennedy, 569 F.2d
431 (7th Cir. 1977), in which adult udoptees
attacked two Illinois statutes that require a
Court order for the release of adoption rec-
ords and original birth certificates. The
Seventh Circuit understood the complaint
to allege that these statutes set too high a
standard of cause for release of the records
to adult adoptees. The Court abstained
because the two statutes had been inter-
preted only once, by « lower court in an
unreported opinion, and because it thought
that the Illinois Courts might interpret the
standard of cause in a way that would mect
the plaintiffs’ objections.
37a
459 F. Supp. at 915
The plaintiffs reply that they are claim-
ing that any requirement of cause whatso-
ever is unconstitutional, not merely that the
New York Courts have set too high a stan-
dard. It is “wildly speculative,” they say,
that the state courts will eliminate any
standard of cause for adult adoptees, and
any such possibility is Loo remote to justify
abstention.
In the Court’s opinion the plaintiffs’
claim should be decided here. The New
York Courts do require yood cause for the
release of records to adult adoptees, for
example, see‘In Re Chattman, 57 App.
Div.2d 618, 393 N.Y.S.2d 768 (2d Dep't
1977); In Re Maxtone-Craham, 90 Mise.2d
107, 393 N.Y.S.2d 835 (Sur.Ct.N.¥.Co.1975),
und there is no evidence that the New York
Courts are about to abandon this require-
ment. Since the plaintiff cluims that any
requirement of cause is unconstitutional,
the constitutional issues will not likely be
eliminated or changed by a new interpreta-
tion of state law. As the Attorney General
recognizes in his brief, Pullman abstention
is therefore inappropriate.
3. Certain defendants argue that The
Alms Society has no standing and that the
plaintiffs who already have received from
other sources the information probably con-
tained in their records also have no stand-
ing. Since there would remain plaintiffs
who have standing even if these did not, the
Court does not discuss these arguments.
cia” iliac, Maia aie aaa
:
38a
459 F. Supp. at 915
Summary of Arguments on the Merits
The plaintiffs argue that any require-
ment of good cause violates the Constitu-
tion, first, because it discriminates against
adoptees, a suspect classification under the
Equal Protection Clause; second, because it
infringes the right to privacy in matters of
family life; third, because it denies adop-
tees their right to acquire useful informa-
tion; and, fourth, because it is a badge or
incident of slavery forbidden by the Thir-
teenth Amendment.
Suspect Classification under Equal Protec-
tion
The Supreme Court has identified a sus-
pect class entitled to the protections of
strict judicial scrutiny as one saddled with
such disabilities, or subjected to such a his-
tory of purposeful unequal treatment, or
relegated to such a position of political pow-
erlessness as to command extraordinary
protection from the majoritarian political
process. Muthews v. Lucas, 427 U.S. 495,
506, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976).
The plaintiffs argue that adoptees are so
powerless politically that they require the
protection due to discrete and insular mi-
norities. The defendants rely principally on
Mathews, supra, which held that illegitima-
cy is not a suspect classification.
39a
459 F. Supp. at 915-916
Right of Privacy
The plaintiffs appear to argue that the
right of privacy accorded by the’Supreme
Court to certain aspects of family life and
procreation, for example, Moore v. City of
East Cleveland, 431 U.S. 494, 499, 97 S.Ct.
1932, 52 L.Ed.2d 531 (1977), also protects
their interest in personal identity. «..
The defendants reply that the plaintiffs’
interests are not fundamental enough to
warrant this protection.
916
Right to Acquire Useful Information
With respect to the right to acquire use-
ful information, here the defendants rely
principally on Gotkin v. Miller, 379 F.Supp.
859, 862-63 (E.D.N.Y.1974), aff'd, 514 F.2d
125 (2d Cir. 1975).
In Gotkin, a former mental patient ar-
gued that her right to acquire useful infor-
mation entitled her to see confidential rec-
ords of mental hospitals in which she had
been confined. |
The Court held that-the right to acquire
useful information was a corollary of the
right of free speech and had never been
used to compel an unwilling speaker to im-
part information. The plaintiffs respond
that the records sought here are more im-
portant to them than the hospital records
were to Mrs. Gotkin.
40a
459 F. Supp. at 916
Thirteenth Amendment
With respect to the Thirteenth Amend-
ment, the gist of the plaintiffs’ argument is
that the requirement of good cause is a
badge or incident of slavery because it is
the equivalent of the sale and separation
from their parents of slave children too
young to remember who their parents were.
The defendants reply that nothing like
the good cause requirement has been recog-
nized as a badge or incident of slavery and
that this argument is frivolous.
Countervailing State Interests ;
On the subject of countervailing state
interests, the defendants argue that even if
the plaintiffs had some constitutional right
to inspect their records, that right would
have to be balanced against the legitimate
interests of the state in the confidentiality
of these records. These interests include
encouraging natural parents, foster parents,
and prospective parents to disclose to the
adoption agency whatever personal infor-
mation might help the agency to pluce the
child in a suitable home; assuring the natu-
ral parents their privacy in order to encour-
age them to put their child up for adoption
through legal channels rather than on the
unofficial black market in adoptions; pro-
4la
459 F. Supp. at 916
tecting the privacy of natural parents who
have already given their child up for
adoption and may not want to be found by
their child; and protecting the adoptive
family from the disruption caused by locat-
ing their adoptive child’s natural parents.
It is in order to avoid Pullman abstention,
as the Court sees it, that the plaintiffs have
taken the position that New York can never
constitutionally withhold adoption records
from adult adoptees.
(3) The Supreme Court has reiterated
that the right to privacy may be regulated
by the state if such regulation is justified
by compelling or state interests. When, as
here, no fundamental interest is involved,
the statute challenged should be upheld if it
is reasonable, not arbitrary, and hears a
rational relationship to a permissible state
objective.
[4] Indeed, intrusions on the privacy of
the individual may be justified in the public
interest. The natural parents surrendered
a child for adoption with not merely an
expectation of confidentiality, but with ac-
tual statutory assurance that his or her
identity as the child’s parent will be shield-
ed from public disclosure. Thus, the natu-
ral parent has a right to privacy, a right to
be let alone that is not only expressly as-
sured but also has been recognized as a vital
interest by the United States Supreme
Court, Stanley v. Georgia, 394 U.S. 557, 89
S.Ct. 1243, 22 L.Ed.2d 542 (1969).
42a
459 F. Supp. at 916-917
The New York statutes and regulations
which seal adoption records protect the
right to privacy of the adopting parents and
that of natural parents from unwarranted
intrusion. The State Legislature and the
other bodies which have fashioned rules
have recognized that this right to privacy
also cannot be made absolute, that parties
such as the adult adoptees here may have a
countervailing interest which may warrant
disclosure in spite of assurances of secrecy.
For this reason, the regulations and stat-
utes have provided that upon good causc
shown a Court may order that the records
be revealed to the party making proper
application. *
917
This statutory provision vests in the
Court the power to weigh and balance the
competing privacy rights and make a deter-
mination based on the facts and circum-
stances of each individual case.
{5,6} No constitutional or personal right
is unconditional and absolute to the exclu-
sion of the rights of all other individuals.
The statutes before the Court do not to-
tally deny plaintiffs acecss to the informa-
tion they seck. They only require that
they, as members of a class in which there
is an overwhelming state interest, must
demonstrate good cause in order to protect
the countervailing privacy rights of the nat-
ural parents. Such a limitation based upon
a valid state policy of protecting the rights
of others is not an unconstitutional exercise
of state power.
43a
459 F. Supp. at 917
In the last analysis, as the Supreme Court
has expressly pointed out, “the protection
of a person's general right to privacy—his
right to be let alone by other people—is,
like the protection of his property and of his
very life, left largely to the law of the
individual states.” Katz v. United States,
389 U.S. 347, 350-51, 88 S.Ct. 507, 511, 19
L.Ed.2d 576 (1967) (footnotes omitted).
[7] It is the opinion of this Court that
plaintiffs’ rights to privacy and to receive
important information are not constitution-
ally abridged by the New York statutes but
rather are permissibly limited in accordance
with a valid state interest to balance con-
flicting rights of privacy and to protect the
integrity of the adoption process, which is
likely to suffer if the assurances of secrecy
are not present. Constitutional principles
of equal protection do not require that all
persons be treated identically. =
The state has more than a rational basis;
it has a compelling interest in regulating
the access sought here.
These views will be recognized almost in
haec verba as the views also expressed by
the New Jersey Court in Mills v. Atlantic
City Department of Vital Statistics, 148
N.J.Super. 302, 372 A.2d 646 (Ch.Div.1977).
The Court holds that the regulations chal-
lenged here are reasonable and appropriate;
the Court accordingly concludes that even if
the plaintiffs had made‘out a constitutional
right of access to their records in any cir-
cumstances their failure to accommodate
the state’s interests seems to the Court to
require that their complaint be dismissed
and accordingly the Court concludes that
judgment shall be entered herein dismissing
the complaint.
SO ORDERED.
44a
APPENDIX D
The New York State statutes sealing
adoption records are printed in Appen-
dix A, footnote 1, at pp. 4a-7a,
supra.
This Appendix D prints the provision
on sealed adoption records in the
New York City Administrative Code.
45a
NEW YORK CITY
CHARTER
AND
ADMINISTRATIVE
CODE
ANNOTATED
A complete text of the New York City Charter and the New York City
Administrative Code with court decisions from the time of the
enactment of the Code and Charter
VOLUME 3
Editor
Epitn L. Fiscu
(Member of the New York Bar)
WicuiaMs Press? Ixc.
ALBANY. New York
1978
46a
429 DevakTMeENT OF Hlkauru § 967-2.0
_ ——-
§ 567-2.0 ‘ Supplemental birth records.—a. A new birth record
shall be made whenever:
1. Proof is submitted to the department that the previously
unwed parents of a person have intermarried subsequent to the
birth of such person;
2. Notifieation is received by the department from the clerk
of a court of competent jurisdiction or proof is submitted of a
judgment, order or deerce relating to the parentage of the
person ;
3. Notification is received by the department from the elerk
of a court of competent jurisdiction or proof is submitted of a
judgment, order or decree relating to the adoption of the
person. (Suit. a as amended by L. 1950, eh. 415, July 1.)
b. On every birth reeord made because of adoption, a notation
that it is filed pursuant to paragraph three of subdivision a. of
section 567-2.0 of the administrative code of the city of New York
shall be entered. (Subd. b as amended by L. 1950, eh. 415, July 1)
¢. When a new birth record ix made the department shall sub-
stitute such new record for the birth record then on file. The
department shall place the original birth record and the proof,
notification and papers pertaining to the new birth record under
wal. Seals shall not be broken except by order of a court of compe-
tent juriadiction. Thereafter when a certified copy of the certificate
of birth of such a person is issued, it shall be a copy of the new
certificate of birth, except when an order of a court of competent
jurisdiction shall require the issuance of a copy of the original
certifieate of birth.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.