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filed: July 31, 1986.


Appeal from the Order of the Court of Common Pleas, Wyoming County, Civil Division, at No. 33 of 1982.


Michael R. Lynn, Bloomsburg, for appellant.

John J. Hovan, Tunkhannock, for appellee.

Brosky, Popovich and Roberts, JJ. Popovich, J., concurs in the result.

Author: Brosky

[ 355 Pa. Super. Page 409]

This appeal is from a divorce decree. Appellant contends

[ 355 Pa. Super. Page 410]

    that the Divorce Code provision allowing no-fault divorce*fn1 violates his freedom of religion under the Pennsylvania Constitution.*fn2 We disagree, and accordingly, affirm.

Appellant contends that the grant of a divorce infringes on his religious beliefs as a Roman Catholic, in that that faith opposes divorce. His devotion to his faith is quite apparent. Such an infringement, he argues, works a violation of his rights under Article I, Section 3 of the Pennsylvania Constitution. That Section states:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; No man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; No human authority can, in any case, whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.

The provision at issue is that providing for freedom of "the rights of conscience."

There is no case on point in this Commonwealth. As a consequence, before turning to the cases interpreting our State Constitution, it will be useful to consider cases in other jurisdictions treating similar issues and the precise issue before us.*fn3

Three United States Supreme Court cases are worth noting. First, in Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888), the high court held that marriage was a social relationship governed by the laws of the individual states under their police powers. Second, in Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d

[ 355 Pa. Super. Page 411965]

(1963) the court reiterated the standard under which First Amendment infringements by state regulation are to be judged: "If, therefore, the decision . . . is to withstand appellant's constitutional challenge, it must be . . . because any incidental burden on the free exercise of appellant's religion may be justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate . . . .' NAACP v. Button, 371 U.S. 415 [, 83 S.Ct. 328, 9 L.Ed.2d 405] . . ."

The third, and final, United States Supreme Court case examined here is the earliest of them, from 1878. Reynolds v. United States, 8 Otto 145, 98 U.S. 145, 25 L.Ed. 244 (1878), treated the question of whether freedom of religion made impermissible federal law prohibiting polygamy. A Mormon in the then territory of Utah was prosecuted under the federal law. Chief Justice Waite delivered the scholarly and eloquent opinion of the Court. Some brief exerpts from Reynolds are well worth quoting.

Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.

Reynolds, supra 8 Otto 145, 98 U.S. at 165-6.

A few of our sister states have had the occasion to treat the issue before us. The principal case of these is Williams v. Williams, 543 P.2d 1401 (Oklahoma 1975).

[ 355 Pa. Super. Page 412]

Appellant's complaint that her constitutional right for the free exercise of religion is being violated is unfounded. The action of the trial court only dissolved the civil contract of marriage between the parties. No attempt was made to dissolve it ecclesiastically. Therefore, there is no infringement upon her constitutional right of freedom of religion. She still has her constitutional prerogative to believe that in the eyes of God, she and her estranged husband are ecclesiastically wedded as one, and may continue to exercise that freedom of religion according to her belief and conscience. Any transgression by her husband of their ecclesiastical vows, is, in this instance, outside the jurisdiction of the court.

Williams, supra, at 1403. Williams develops the point made in Reynolds -- and does so properly.

A case out of Kansas presents a rather interesting analysis.

In addition, the husband apparently does not share his wife's religious beliefs about divorce, since he sought the decree. Under these circumstances, to compel him to remain married because of the wife's religious beliefs would be to prefer her beliefs over his. Any such preference is prohibited by the Establishment Clause of the First Amendment. The government may not "aid one religion, aid all religions, or prefer one religion over another." Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947).

Sharma v. Sharma, 8 Kan.App.2d 726, 667 P.2d 395, 396 (1983).

Another point made in Reynolds is presented in a somewhat different manner in a Louisiana case treating an issue similar to the one before us. Appellant, the defendant in a divorce action, argued that the grant of a divorce violated the constitutional principle of separation of church and state.

Article VI of the Constitution of the United State provides, in pertinent part, that:

[ 355 Pa. Super. Page 413]

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Emphasis ours.)

We believe this answers defendant's argument that plaintiff's action is governed by some higher (spiritual) authority.

Scheppf v. Scheppf, 430 So.2d 370, 372, n. 2 (Crt. of Appeal of Louisiana, 1983).*fn4

Persuasive though all these authorities may be, they could be inconsistent with interpretations of this Commonwealth's constitution.*fn5 A review of those interpretations is, therefore, in order.

As would be expected, Section Three's rights of conscience are not unlimited.

But broad as are these declarations of our constitution, and sacred as are the religious freedom and the rights of conscience they secure, yet it must be apparent to any person upon reflection, and has been repeatedly declared by the highest judicial authority, that they do not mean, unqualifiedly, that it is beyond the power of the legislature to enact any law which will restrain individuals from doing that which, if it were not for the law, their consciences would teach them to be their moral or religious duty. Indeed it is impossible to see how civil government

[ 355 Pa. Super. Page 414]

    could exist, if the dictates of the individual conscience were in every instance where they come in conflict with the law of the land the paramount rule of action.

Commonwealth v. Herr, 229 Pa. 132, 141, 78 A. 68, 71 (1910). More succinctly, it has been held that, "while the adoption of a belief is absolutely protected, there exists only a qualified right to act on that belief." Morris v. Morris, 271 Pa. Super. 19, 26, 412 A.2d 139, 142 (1979).

The dimensions of this qualified right are given in Commonwealth v. Beiler, 168 Pa. Super. 462, 469, 79 A.2d 134, 137 (1951), quoting the dissenting opinion in Commonwealth v. Lesher, 17 Serg. & R. 155, 160 (1828).

It is declared in the constitution [of 1790] * * * that 'no human authority can, in any case, control or interfere with the rights of conscience.' But what are those rights? Simply a right to worship the Supreme Being according to the dictates of the heart; to adopt any creed or hold any opinion whatever on the subject of religion; and to do, or forbear to do, any act, for conscience sake, the doing or forbearing of which is not prejudicial to the public weal. But salus populi suprema lex, is a maxim of universal application; and where liberty of conscience would impinge on the paramount right of the public, it ought to be restrained. (Gibson's italics.)

This language in Lesher presages language in Sherbert v. Verner, supra, 374 U.S. at 406, 83 S.Ct. at 1795, quoted in Bear v. Reformed Mennonite Church, 462 Pa. 330, 335, 341 A.2d 105, 107-08 (1975).

This is a most substantial test. Under even this stringent analysis, appellant's claim fails. The state's interests in regulating marriage and divorce are clearly paramount. That regulation is inconsistent with the recognition of a

[ 355 Pa. Super. Page 415]

    unilateral right of a party to remove himself from its purview as a matter of conscience. The state has the power, properly exercised within constitutional limits guaranteeing freedom of religion, to grant divorces. Thus, whether granting appellee her divorce is viewed as not infringing upon appellant's freedom of religion, as in Williams, supra, or as interfering with the practice of his religion, as in Reynolds, supra, the result reached here would be the same. To whatever extent the issuance of a divorce decree interferes with the practice of appellant's religion, it does not violate an individual's right to freedom of conscience.*fn6

Legal and academic scholars may nod with approval, either wholly or halfheartedly, the decisions of the Courts in the cases cited herein to resolve a matter involving the church and state. Hopefully, the appellant will do likewise.

If not, then we believe that the only authority best understood by appellant whose religious convictions are to be admired is to quote scripture. The appropriate passage appears in the New Testament in the Gospel of St. Matthew, Chapter 22, verse 15 to 22 which reads as follows:

Then the Pharisees went and took counsel how they might trap him in his talk. And they sent to him their disciples with the Herodians, saying, "Master, we know that thou art truthful, and that thou teachest the way of God in truth and that thou carest naught for any man; for thou dost not regard the person of men. Tell us, therefore, what dost thou think: Is it lawful to give tribute to Caesar, or not?" But Jesus, knowing their wickedness, said "Why do you test me, you hypocrites? Show me the coin of the tribute." So they offered him a denarius. Then Jesus said to them, "Whose is this image and the inscription?" They said to him, "Caesar's." Then he said to them, "Render, therefore, to Caesar the

[ 355 Pa. Super. Page 416]

    things that are Caesar's, and to God the things that are God's." And hearing this they marvelled, and leaving him went off.*fn7

That says it all in response to the age old conflict between civil and spiritual spheres of authority.

Order affirmed.

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