Lucchi, J.s.c. (temporarily assigned).
Plaintiff Richard Mack, currently incarcerated in New Jersey State Prison, and plaintiff Suzanne Koerner desire to marry.
In 1973 Mack was sentenced to serve 14 to 15 years for the murder of his wife. During 1976 Mack escaped from prison and met Suzanne Koerner in Tucson, Arizona. From this relationship a child, Camille, was born on April 18, 1977. In September 1977 plaintiffs returned to New Jersey, whereupon Mack surrendered to the authorities.
On March 24, 1978 plaintiffs filed the complaint in this action seeking an order to compel the New Jersey Department of Corrections to transport Mack to Hackensack to marry Suzanne Koerner. On said date Ms. Koerner was again pregnant by Mack, eventually giving birth to a second child in April 1978.
The Hackensack Department of Health would cooperate in the issuance of a marriage license and the mayor of Hackensack would officiate at the proposed wedding ceremony.
That which prevents Mack and Koerner from marrying at the State Prison, thus necessitating the instant writ application, is enunciated in the prison regulations. Departmental Standards, §§ 561-221 et seq. , entitled "Inmate Marriages," provide in part that an inmate must be in full minimum custody status and eligible for a furlough in order to be eligible to marry. Section 561-223, "Physical Facilities," additionally provides that the prison facility itself is not to be utilized for the marriages of eligible inmates.
Plaintiff Mack does not at this time meet all the criteria for the granting of a furlough. He therefore seeks leave to this court for an order enabling him to marry outside the Prison complex.
By letter in lieu of brief, dated April 13, 1978, the New Jersey Department of Corrections, through Deputy Attorney General Frederick M. English, advised the court that it does not oppose plaintiff's present application for such an order.
It has long been well settled and now stands unchallenged that marriage is a social relationship subject in all respects to the State's police power. Rothman v. Rothman , 65 N.J. 219 (1974), Loving v. Virginia , 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1018 (1967); N.J. Const. (1947), Art. I, par. 7.
The court in one famous case stated the proposition thusly:
Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution. [ Maynard v. Hill , 125 U.S. 190, at 205, 8 S. Ct. 723, at 726, 31 L. Ed. 654 (1888)]
The extent to which the right to marry is diluted for one in prison has apparently never been considered by a court of this State. Courts in two other jurisdictions, however, have recently had occasion to consider the question in ...