On appeal from the Superior Court, Law Division, Essex County.
Michels, Pressler and Trautwein. The opinion of the court was delivered by Pressler, J.A.D.
In this paternity proceeding, plaintiff Essex County Division of Welfare, as assignee of C.D., appeals from a judgment of the Superior Court, Law Division, adjudicating that defendant Gilbert Harris is not the father of C.D.'s child.
The critical issue on this appeal is the validity of the Law Division's order, entered after an evidential hearing, which denied plaintiff's pretrial request that Harris, a Christian Scientist, be required to submit to a human leucocyte antigen (HLA) test. The basis of the trial judge's denial of this request was his holding that requiring submission would constitute an infringement upon defendant's religious beliefs prohibited by the First Amendment of the Constitution. We are satisfied that he was in error in so holding.
Preliminarily, we are constrained to point out that the record does not support the trial judge's finding that taking a small quantity of blood for forensic test purposes would even constitute a violation of Christian Science religious tenets. In this respect the record shows that defendant, in his certification in response to plaintiff's notice of motion seeking the test order, did not explain his opposition other than by the general statement
that he refused to submit "for personal and religious reasons," asserting further that the cost of the test would be a burdensome expense. It was not until the hearing on the motion that he first identified himself as a Christian Scientist and asserted that his religious beliefs prohibited him from giving tissue or blood from his body. No further evidence as to the beliefs of Christian Science in this regard was adduced, and plaintiff was not then in a position to produce its own proofs in this respect because it had no pre-hearing notice of the basis of defendant's asserted religious objections. Nevertheless, the judge was satisfied with defendant's unsupported statement, taking
There's no question, also, and the Court will take judicial notice that under the Christian Science religion, they are not allowed to give any blood or have anything involving blood. That's a particular religion that the court has to respect.
We are, however, satisfied that it is by no means clear that the tenets of Christian Science prohibit the giving of a blood sample for testing purposes, whether voluntarily or under compulsion of court order. Cf. Mountain Lakes Bd. of Ed. v. Maas, 56 N.J. Super. 245, 270-271 (App.Div.1959), aff'd o.b. 31 N.J. 537 (1960), cert. den. 363 U.S. 843, 80 S. Ct. 1613, 4 L. Ed. 1727 (1960). As Judge Goldmann there pointed out, the teachings of Mary Baker Eddy, the founder of the Christian Science Church, recommended that adherents submit to secular laws requiring vaccination, which is clearly contrary to the Church's beliefs. It is not clear to us that withdrawal of a bodily substance as opposed to introduction into the body of a foreign substance, as in the case of immunization, violates church teaching at all. Nor is it clear that even if it did, submission to withdrawal of blood would be prohibited if it was required by secular law. Evid.R. 9(1) permits judicial notice of "such specific facts and propositions of generalized knowledge as are so
universally known that they cannot reasonably be the subject of dispute." In view of the foregoing, the alleged religious tenet of the Christian Science Church here in question is patently not a matter meeting that standard.
More significantly, however, we are also satisfied that even if the Christian Science belief did prohibit the giving of blood for forensic purposes, that tenet would have to yield to the secular public policy here involved. It is well settled as a matter of federal First Amendment law that while it accords an absolute freedom to believe, it does not accord an absolute freedom to act or to fail to act. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940). Thus, in the context of governmental impingement upon religious beliefs which interdict particular medical procedures, it is well settled in this State that the practice of such beliefs is not immune from a modicum of governmental restraint where the governmental interest is compelling. See, e.g., John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576 (1971), and State v. Perricone, 37 N.J. 463 (1962), cert. den. 371 U.S. 890 (1962) 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962), requiring blood transfusions contrary to religious beliefs. And see, requiring vaccination, Mountain Lakes Bd. of Ed. v. Maas, supra; Sadlock v. Carlstadt Bd. of Ed., 137 N.J.L. 85 (Sup.Ct.1948).
We have no doubt of society's paramount and compelling interest in determining parentage and of its consequent overriding interest in accurately resolving contested paternity questions by requiring putative fathers to submit to routine and minimally intrusive blood testing. Cf. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). The interests of children of disputed parentage are thereby advanced; the interests of the taxpayers who might be called upon to provide for the child's support in the absence of a paternity determination are thereby protected, and the interests of a putative father, who by test results can be ...