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In re Adoption of

Decided: July 1, 1971.


For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Proctor, J. Weintraub, C.J. (concurring). Weintraub and Jacobs, JJ., concur in result.


The county court denied plaintiffs' application for a final decree of adoption. The court held that plaintiffs' lack of belief in a Supreme Being rendered them unfit to be adoptive parents. The plaintiffs appealed to the Appellate Division, and prior to argument there, we certified the case on our own motion. We reverse.

On June 27, 1969, the plaintiffs, John and Cynthia Burke, received custody of the baby girl "E" from the Children's Aid and Adoption Society of New Jersey (Society).*fn1 On May 23, 1970, the Burkes, having received the consent of the Society, filed an application for adoption with the county court. The Society filed a report with the court recommending that the application be granted.

On August 25, 1970, a hearing was held and the Society was permitted to intervene. On November 2, 1970, the court denied the plaintiffs' application and ordered the return of the child to the Society. 112 N.J. Super. 326. Final judgment was entered on November 24, 1970, but was stayed to give the parties an opportunity to appeal.

Both the Burkes and the Society filed appeals from the judgment denying the adoption. Mark F. Hughes, Esq., was appointed by the Appellate Division on its own motion as amicus curiae "for the purpose of reviewing the law on both sides of the controversy" on appeal. Subsequently, the New Jersey Bureau of Children's Services, represented by the Attorney General, the Council on Adoptable Children, the New Jersey Council of Churches, the Department of Church in Society, Division of Homeland Ministries of the Christian Church (Disciples of Christ) in the United States and Canada, and Division of Human Relations, Board of Christian Social Concerns, United Methodist Church, all requested and were granted leave to file briefs amici curiae.

The facts are undisputed. Cynthia Burke, holder of a Ph.D. in Psychology, is a past Associate Professor at Seton

Hall University. Her husband, John, holder of a Master's Degree in Speech Pathology, is currently working toward his Doctorate at Southern Illinois University. In 1965, the Burkes applied to the New Jersey Bureau of Children's Services*fn2 for assistance in the adoption of a child. They were informed that, pursuant to a department regulation, they would be required to demonstrate some church affiliation before they could be considered suitable applicants. Since they could not demonstrate such an affiliation, they were denied the opportunity to adopt a child, and they instituted a suit for declaratory judgment seeking resolution of the question whether such "a religious qualification" might properly be required as a prerequisite to an adoption. The suit was dismissed by stipulation, however, when the Bureau of Children's Services revised its regulations which now provide in pertinent part:

Opportunity for religious or spiritual and ethical development of the child should receive full consideration in the selection of adoptive homes. Lack of religious affiliation or of a religious faith, however, should not be a bar to consideration of any applicants for adoption.

In July of 1967, after the regulations had been amended, the Society placed a baby boy (David) with the Burkes. With the recommendation of the Society, the county court granted final adoption on September 28, 1968. David has been living with the Burkes ever since and there is no dispute that he has been well cared for.

On June 27, 1969, the Society placed a three week old baby girl, "E", with the Burkes and she has been with them continuously since that date. On May 23, 1970, plaintiffs filed a complaint seeking adoption of the child. After conducting

an investigation, the Society compiled and filed a report recommending the adoption. The report noted that both Cynthia and John Burke were in excellent health, intelligent, well educated, attentive to their children, and able to provide a physically suitable home. The report also noted that "* * * the Burkes' attitude toward the children is one that is healthy, and one that is full of warmth and love * * *. Mr. and Mrs. Burke have no church affiliation; however the agency has found them to be people of high moral and ethical standards."

At the hearing, the trial judge focused on the area of religion. He directed almost all of his questions to the plaintiffs' lack of church affiliation and their lack of belief in the existence of a Supreme Being. John Burke testified that he had had formal religious training as a Catholic and Cynthia testified that she had been raised as a Protestant. Both said they were now unaffiliated with any church and did not believe in a Supreme Being. Both articulated their humanistic views of morality and ethics, and their views of the type of ethical training they thought necessary to proper child rearing. The following colloquies with John Burke are illustrative:

THE COURT: Let's see now, an atheist doesn't believe in God at all and an agnostic does what? Can you tell me what you are? Are you an agnostic or an atheist, Mr. Burke?

MR. BURKE: Labels such as these have connotations that are unpalatable to some people. I wouldn't call myself an agnostic or an atheist.

THE COURT: Well, tell me what you are.

MR. BURKE: I am a humanist, I suppose. I believe in people. I believe in the goodness of morality in that what we need to learn in life is being good to one another and that the perception, the true perception of the Juda-Christian way of life are what make us good and this is the morality that obviously I haven't been able nor did I desire to throw off the teaching of my childhood.

THE COURT: * * * [B]asically you have a good moral life and you believe in a code of morals, sir.

MR. BURKE: Yes, but I think that this code of morals while we have a tradition that brings it down to us the perception of the teachings

of Jesus Christ. For instance, not the christians of christianity, but the teachings of Jesus Christ, love thy neighbor. We have those but we have something better, we have an intellect and we have examples from the people who are alive today, my grandfather, for example, my own parents, which leads you to be able to interpret a moral way of life that is your own, that is your own morality and it isn't exactly making up your morals as you go along, it isn't that at all.

MR. BURKE: I do not believe in the existence of a Supreme Being.

THE COURT: I am a little perturbed * * * the man is outspoken. He could have lied about it and the fact that he didn't lie about it is so much in his favor.

Cynthia Burke, who said her views were the same as her husband's, responded similarly to inquiries by the court:

THE COURT: Well, tell me your views about a Supreme Being.

MRS. BURKE: It would be very difficult for me to give you a description of what I believe a Supreme Being to be. I believe in the power of life. I am very much in awe of the creating of power of life. But, I do not believe in a Supreme Being who is in any way personified.

THE COURT: All right. You don't believe in religion as such, do you?

MRS. BURKE: I do not believe that any one religion is anymore ...

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