Paternity Petition of Com'r of Social Services of City of New York, Matter of

• Decision Date: 05 August 1983
• Citation: 466 N.Y.S.2d 194,120 Misc.2d 567
• Parties: In the Matter of the PATERNITY PETITION OF COMMISSIONER OF SOCIAL SERVICES OF the CITY OF NEW YORK. MARTINE S, Petitioner, v. ANTHONY D, Respondent.
• Court: New York Family Court

Page 194

466 N.Y.S.2d 194

120 Misc.2d 567

In the Matter of the PATERNITY PETITION OF COMMISSIONER OF SOCIAL SERVICES OF the CITY OF NEW YORK MARTINE S, Petitioner, v. ANTHONY D, Respondent.

Family Court, Kings County.

Aug. 5, 1983.

Frederick A.O. Schwarz, Corp. Counsel, New York City by Anwar Shaikh, Brooklyn, for petitioner.

Somer & Wand, P.C. by Carl F. Wand, Commack, for respondent.

DECISION and ORDER

BRUCE M. KAPLAN, Judge:

The protection afforded by the First Amendment to the free exercise of religion does not extend to matters of personal conscience even when a person's religious vows provide that he cannot be forced to surrender his dignity as a person by doing things against his conscience.

For this reason Respondent Anthony D has failed to persuade the Court that an order directing him to submit to an HLA composite blood grouping test would contravene constitutionally protected religious convictions.

When the instant matter first appeared before this Court, Respondent's counsel claimed that an order directing his client to submit to an HLA composite blood grouping test would contravene his client's religious strictures in violation of his First Amendment right to the free exercise of his religion. Thereafter he availed himself of the leave given by the Court to submit documents, affidavits and a memorandum of law substantiating his claim. The Commissioner of Social Services was granted similar leave, but his counsel declined to make a submission.

The free practice of one's religion is a right deeply cherished by the citizens of our State and Nation, and one that is zealously protected by the free exercise clause of the First Amendment. Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981).

This constitutional guarantee of freedom of religion "embraces two concepts, freedom to believe, and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." Cantwell v. Connecticut, 310 U.S. 296, 303, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

In order to assess a claimed violation of the First Amendment right of free exercise, it is necessary to conduct a limited inquiry so as to determine whether or not an act based on religious belief is involved.

While mindful of the delicacy implicit in determining what is a religious belief or practice entitled to constitutional protection, "the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests." Wisconsin v. Yoder, 406 U.S. 205, 217, 92 S.Ct. 1526, 1534, 32 L.Ed.2d 15 (1972).

The Supreme Court and the Congress have become increasingly persuaded of the wisdom of broadening the definition of religion eligible for constitutional protection. While U.S. v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) interpreted the exemption section of the Universal Military Training and Service Act, it unequivocally articulated the proposition that the term "religious training and belief" should be afforded the most expansive possible reading, one not limited by orthodox or traditional notions. Where a belief emanated from religious training or belief in contrast to a merely personal code, its adherent would be entitled to an exemption from military service.

Our courts have been solicitous of a congery of sincerely held beliefs based on religious convictions.

In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Court held it unconstitutional to deny unemployment compensation to a Seventh Day Adventist who refused employment when her employer required her to work a six day week when her religion proscribed working on Saturday which was its Sabbath.

In Thomas, supra, the Supreme Court held that Indiana violated Mr. Thomas's First Amendment right when it denied him unemployment compensation because he terminated a job which required him to participate in the production of armanents, an activity inimical to his religious convictions. The fact that another Jehovah's Witness interpreted this work as scripturally acceptable was considered irrelevant.

The court stated that it was inappropriate for it to act as an arbiter of scriptural interpretation, and held that the applicable test was whether Thomas possessed an honest conviction that such work was forbidden by his religion.

In Stevens v. Berger, 428 F.Supp. 896 (E.D.N.Y., 1977) Judge Weinstein, with his customary clarity, sensitivity and scholarship, held that Stevens was unconstitutionally denied public assistance when his sincerely held religious beliefs impelled him to refuse to obtain social security numbers for his children.

Judge Weinstein employed a twofold test:

1) That a belief must be sincerely held; and

2) That it be rooted in theological conviction.

He found that plaintiff's opposition to obtaining social security numbers for his children stemmed from his belief that they constituted "the mark of the beast", reproved in Revelations as a tool of Antichrist, and that their possession would impair the ability of his children to enter heaven. This belief emanated from Plaintiff's own interpretation of Revelations and not from a doctrinal interpretation of the American Lutheran Church, a religion which was characterized as "Messianic Judaism". After reviewing the relevant history, literature and theological commentary submitted by Plaintiff, Judge Weinstein concluded his belief was religious.

The facts in Stevens, supra, stand in stark contrast to the instant situation. While recognizing that the Respondent's failure to cite any specific reference in the Rules and General Constitutions of the Order of St. Matthew proscribing the giving of blood by its postulants is not dispositive of the issue, Thomas, supra, its absence necessarily limits the manner in which Respondent can demonstrate the religious nature of his belief.

He has, in a self-serving manner, baldly asserted that it is against his religious convictions and his conscience to give blood (that is, have a miniscule amount of blood drawn for testing purposes).

The Court will assume, arguendo, that this belief is sincerely held, ^* thus allowing the first part of the test to be met.

His attempt to meet the second part of the test results in failure.

The only proof offered in support of his position is an unsworn letter from Reverend Mark Forry, Provincial of the Order of St. Matthew (Province of St. Joachim) stating: "As a matter of conscience he can never be forced to surrender his dignity as a person by doing things against his conscience or his personal welfare."

Respondent, himself, in an affidavit in opposition to the direction for a blood test, merely stated that submitting to the blood test is against his religious convictions because it is an integral part of his religion to follow his conscience as his convictions lead. He did not suggest any scriptural or doctrinal basis for his refusal, and he failed to establish any nexus between his refusal to submit to a blood test and a "fundamental" mandate or "cardinal principle" of his religion as did the respondents in Wisconsin v. Yoder, supra, and Sherbert v. Verner, supra, or provide the wealth of material employed in Stevens, supra, to link the Plaintiff's belief with those which were unassailably religious.

Respondent's action amounts to a subjective evaluation and rejection of a validly enacted statutory scheme. His choice is philosophical and personal rather than religious. As such Respondent's actions are not protected by the free exercise clause. As the Court stated in Wisconsin v. Yoder, supra, "the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests." 406 U.S. at 215-216, 92 S.Ct. at 1533.

The Courts of our state have been disinclined to afford First Amendment protection to matters of personal conscience even where a religious tenet taught a person to follow the dictates of their conscience.

In McCartney v. Austin, 31 A.D.2d 370, 298 N.Y.S.2d 26 (3rd Dept., 1969), Judge ...