Alma Soc. Inc. v. Mellon

• Decision Date: 22 June 1979
• Docket Number: No. 666,D,666
• Parties: The ALMA SOCIETY INCORPORATED, Joyce Aaron, Eleanor B. Barron, Marilyn Louise Beck, Susan Roberta Brody, 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, Robert Van Laven, Hope Herman Wurmfeld, and Karl M. Zimmer, Appellants, v. 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, Surrogate, 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, Surrogate, Sullivan County, Louise Wise Services, Spence-Chapin Services to Families and Children, Children's Aid Society (Child Adoption Service), Jewish Child Care Association of New York, and New York Foundling Hospital, Appellees. ocket 78-7593.
• Court: U.S. Court of Appeals — Second Circuit

Page 1225

601 F.2d 1225

The ALMA SOCIETY INCORPORATED, Joyce Aaron, Eleanor B Barron, Marilyn Louise Beck, Susan Roberta Brody, 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, Robert Van Laven, Hope Herman Wurmfeld, and Karl M. Zimmer, Appellants, v. 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, Surrogate, 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, Surrogate, Sullivan County, Louise Wise Services, Spence-Chapin Services to Families and Children, Children's Aid Society (Child Adoption Service), Jewish Child Care Association of New York, and New York Foundling Hospital, Appellees.

No. 666, Docket 78-7593.

United States Court of Appeals, Second Circuit.

Argued March 19, 1979.

Decided June 22, 1979.

Cyril C. Means, Jr., Professor of Law, New York City (Bertram E. Hirsch, New York City, of counsel), for appellants.

Charles Brody, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of the State of New York, New York City), for appellees Surrogates Midonick, Gelfand, Bloom, Laurino, Bennett, Signorelli, and Scheiman.

Gerald E. Bodell, Bodell & Magovern, New York City, for appellee New York Foundling Hospital.

Leonard F. Manning, Professor of Law, New York City, for appellee Jewish Child Care Association.

Donald J. Cohn, Webster & Sheffield, New York City (David A. Hom, New York City, of counsel), for appellee The Children's Aid Society.

Stephen Wise Tulin, Polier, Tulin & Clark, New York City, for appellee Louise Wise Services.

Allen G. Schwartz, Corp. Counsel, New York City (L. Kevin Sheridan and Carolyn E. Demarest, New York City, Lillian Gewirtz and Peter Lavigne, law clerks, of counsel), submitted a brief for appellee Irving Mellon.

Ephraim London, London & Buttenwieser, New York City (Helen L. Buttenweiser, New York City, of counsel), for court-appointed law guardian.

Before LUMBARD and OAKES, Circuit Judges, and BRIEANT, District Judge. ^*

OAKES, Circuit Judge:

This appeal presents the question whether adopted persons upon reaching adulthood ("adult adoptees") are constitutionally 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 ¹ are facially invalid on Fourteenth Amendment Due Process and Equal Protection grounds and on the further basis that those statutes impose upon them badges or incidents of slavery in violation of the Thirteenth Amendment. The United States District Court for the Southern District of New York, Milton Pollack, Judge, dismissed appellants' complaint against representative 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. ²

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, ³ may create in some persons 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, ⁴ that Scotland and Israel have had open records for some time, ⁵ and that England and Wales have recently changed from closed to open records with access to adults who have obtained a certain age. ⁶

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 acting under compulsion of state law) the identity of his natural family is a fundamental right under the Due Process clause of the Fourteenth Amendment. "This section affords not only a procedural guarantee against the deprivation of 'liberty,' but likewise protects substantive aspects of liberty against unconstitutional restrictions by the State." Kelley v. Johnson, 425 U.S. 238, 244, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976); See Castaneda v. Partida, 430 U.S. 482, 503 n. 2, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977) (Marshall, J., concurring) (recognizing impact of discrimination on "sense of self"). See also Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (impact of housing ordinance on family relationship).

Second, appellants argue that adult adoptees constitute a suspect or "quasi-suspect" classification under the Equal Protection clause of the Fourteenth Amendment. ⁷ Under this view semi-strict or intermediate scrutiny of the New York statutes would be appropriate, and appellants maintain that such a review does not indicate that the statutes are based on sufficiently important state interests.

Finally, appellants argue that the Thirteenth Amendment also applies to this case because the statutes that require sealing of the adoption records as to adults constitute 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 ⁸ covers appellants as adults. Under appellants' view, the rights that the Thirteenth Amendment guarantees are not subject 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." ⁹ They rely on a series of Supreme Court cases involving familial relationships, rights of family privacy, and freedom to marry and reproduce. ¹⁰ 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 happening." 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, 89 S.Ct. 1300, 22 L.Ed.2d 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.

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, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). Although it could be argued that appellants do have an "interest in independence in making certain kinds of important decisions," Id. at 599-600, 97 S.Ct. at 876 ¹¹ 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 Taxonomy of Privacy: Repose, Sanctuary, and Intimate Decision, 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 examine more closely the character of the choices and information 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 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 adoptive one and does not affect termination or continuation of those relationships. The information sought is information as to the identity of the real parent(s) that was concealed 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 deliberations.

The...