Date: 08 Nov 96 
From: "Jane C. Nast" 
To: Jim Kelly 
      
Subject: Tennessee Update
OFFICIAL REPORT: with commentary by Jane Nast
On October 25 & 26 an AAC Regional conference was held in Lancaster, PA.  The 
highlight for me, as Legislative Director of AAC, was the presentation by 
Fred Greenman, the attorney who is overseeing the Tennessee Court case for 
AAC. Several of us have tried to interpret his words, but we haven't hit the 
mark yet, so we decided to ask Fred to write us a report in laymen's terms 
with his legal expertise.The report follows my comments. Feel free to forward 
this to any and all of your lists.
After hearing Fred in Lancaster and reading the report that follows, I am 
convinced that we are all going to be a part of adoption history in the 
making. I am proud to be a member of AAC and to know that we have taken the 
lead in providing support for Tennessee. After reading Fred's update as well 
as the list of organizations that have joined NCFA in opposition, please let 
us know if your organization would like to join with us in this historical 
event.  Also, you, as an individual, wish to help, please get in touch with 
AAC President, Anne Babb at 405-329-9294 or e-mail her at 
aacr76a@prodigy.com.. 
As most of you know, AAC has established a fund, TENOR (stands for 
Tennessee/Open Records) to help with the mounting legal costs in this case. 
Contributions can be addressed to AAC/TENOR at 1000 Conneticut Ave., N.W., 
Suite #9  Washington, D.C. 20036
The following is a list of organizations (and one individual) which have 
joined with NCFA to oppose open records in Tennessee:
Life Issues Institute;
National Coalition to End Racism in America's Child Care System;Aaron 
Britvan, Esq., Co-Chairman of the Adoption Committeee of the New York State 
Bar Association;
Adoptive Parents' Committee of New York;
Eagle Forum;
Christian Coalition;
Americans United for Life;
International Concerns for Children;
Concerned Women of America;
National Right to Life Committee;
KidsHelp! Foundation;
Hear my Voice;
Family Research Council;
Institute for Children;
Fund for the American Family; and last but not least
The American Academy of Adoption Attorneys!
Now that you have recovered from reading the list, please read carefully (and 
memorize, if necessary) the following update.
FROM: Fred Greenman, Esq.
DATE November 6, 1996
RE: Doe v. Sundquist
My remarks in Lancaster appear to have caused some confusion as to what is at 
stake in this lawsuit. Let me clarify:
Plaintiffs (i.e. the opposition) are alleging that it is unconstitutional for 
any state to open adoption records to adoptees. They claim that opening 
records to adoptees invades the privacy of both birth parents and adoptive 
parents. Their claim is not presently limited to retroactive opening, but 
appears to include even prospective opening of records (i.e. of now 
adoptions).
If plaintiffs were to prevail, the ruling would apply throughout the country 
and prevent any state from opening adoption records.*
*In formal legal doctrine, this is true only if the final decision is by the 
Supreme court. If the Supreme Court chooses not to hear the case, a decision 
by the Court of Appeals for the Sixth Circuit technically has the force of 
law only within the Circuit (Kentucky, Michigan, Ohio and Tennessee). Outside 
the Sixth Circuit, such a decision is only "persuasive", not "binding".  As a 
practical matter, however, an adverse decision by the Sixth  Circuit would be 
almost as bad as one by the Supreme Court, especially in its impact on other 
state legislatures considering whether to improve access to adoption records.
It is quite possible that the plaintiffs will narrow their claim to cover 
only the opening of records that were previously sealed in some fashion (i.e. 
"retroactive' opening).
They may do so when they file their reply briefs at the end of this week. if 
they do so (and they may never do so), then the ruling they are seeking would 
still apply throughout the country, and it would still prevent a state from 
opening any records that had ever been sealed.
In sum, if we lose this case, no state will be able to open any adoption 
records that were sealed in any way, and it may be that no state will be able 
to open records on any adoptions.
If we win the case, the holding (i.e., the legal precedent) will be simply 
that states CAN, by statute, open adoption records that previously were 
sealed. We are NOT arguing that it is unconstitutional to seal records, and 
the decision will not legally prevent a state from continuing to seal 
records, if the state so chooses.
However, the practical effect of a victory will probably be greater. First, 
some basic procedure. Sometime next year there will be a trial in the 
District Court in Nashville, probably before Judge Nixon. This will establish 
the record (i.e. evidence of the facts) on which he will base his final 
decision. Much of the material we have already submitted will be included in 
that record. The decision of the District Court will be appealed by one side 
or the other to the Court of Appeals for the Sixth Circuit and then to the 
Supreme Court, if the latter chooses to hear the case. The Supreme Court, if 
it hears the case, or else the Sixth Circuit will have the final word and 
will establish the law.
If we win, it is likely that the final opinion of the Supreme Court or the 
Sixth Circuit will recite the facts about adoption that we are establishing 
in the record, namely that the vast majority of birth parents want and have 
always wanted to hear from their children, and that therefore open records 
tend  to INCREASE adoption and DECREASE abortion. Such a decision would show 
NCFA's propaganda for the cock-and-bull story that it is, and should give a 
strong impetus to the opening of records in the state legislatures.
That is why I have said that the decision in this case will probably put 
either the AAC or NCFA out of business, whichever one loses. NCFA understands 
this very well, which is why they have been working their phones and their 
publications and making speeches to get as many organizations and individuals 
as possible to support them. We have to do the same.
For those who are not familiar with the cast of characters in this case, the 
plaintiffs are two anonymous birth mothers, one pair of anonymous adoptive 
parents, and Small World Ministries, the only Tennessee adoption agency that 
belongs to the National Council for Adoption (NCFA). One of the birth parents 
and both adoptive parents are clients of Small world and appear to have been 
both recruited and misinformed by Small World.
The attorneys for plaintiffs are the American Center for Law and Justice, 
which was formed by Pat Robertson in 1990 "to defend the rights of believers" 
(its motto) and is funded by Robertson and his organizations, such as The 700 
Club.
NCFA appears to have organized the plaintiffs and supplied largely incorrect 
information to plaintiffs' attorney from the beginning of the case, and has 
recently filed a brief and affidavit in the pending appeal to the Sixth 
Circuit. The interest of Robertson and his groups appears to be based upon 
NCFA's misinformation that sealed records promote adoption and discourage 
abortion. As an alumnus of a school whose motto was "Great is the Truth and 
It Shall Prevail", I cherish the perhaps naive hope that when and if 
Robertson and his followers realize how false NCFA's propaganda is, they will 
withdraw from this case and stop advocating sealed records.
In short, this not a quarrel in a far-off country about which we know 
nothing,to quote Chamberlain from memory. To pick a more domestic image,  
this is the shootout at the OK Corral !.   
--- Maximus/2 3.01
1:153/920)
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