WEINTRAUB, C.J. (concurring). I concur in the result but cannot join in the opinion of the Court. Although the majority opinion concludes the trial court erred in refusing to order the adoption "solely" on the basis of plaintiffs' lack of belief in a Supreme Being, the opinion does not condemn the trial court's inquiry into the subject. Since satisfaction of a judge's curiosity could hardly warrant that inquiry, I must conclude the majority opinion finds the subject to be relevant and a litigant's views upon it to be capable of constituting a factor in a decision to deny a judgment of adoption. Fortunately for us, the Burkes are not otherwise tainted and hence we are spared the task of deciding how many points should be charged against them because their articles of faith concerning a Supreme Being may deviate from our private views to a degree we severally cannot stand. I think none of this is the proper concern of a terrestrial judge.
We are not talking about honoring the express stipulation made by a consenting natural parent as to the religious faith of an adoptive parent. Nor are we concerned with the hypothetical case of a child whose prior religious training reached the point where a change of direction might inflict some psychological trauma. Rather the simple question is whether the State may inquire into an individual's religious, spiritual and ethical concepts in order to decide whether that individual is fit to raise a child. I think it is not the State's business to prowl among anyone's thoughts and to label him fit or unfit, in whole or in part, because his views are distasteful to someone in a placement agency or in the judiciary.
The majority opinion finds the State would violate the demand for neutrality in religious matters embedded in the First Amendment guarantee of freedom of religion if adoption were denied "solely" because of an applicant's religion or lack of it. With that, I agree, but I cannot understand how the constitutional violation is a whit less because the applicant's religion or lack of it plays some lesser role in the judge's decision. Whether the price of the heresy is the destruction of a man's good character or merely a blot upon it, it is equally true that the State stamps its approval upon some tenets and its disapproval upon others. This is precisely what the First Amendment forbids.
I can think of nothing more unmanageable than an inquiry into a man's religious, spiritual and ethical creed. There is no catalogue of tolerable beliefs. Nor would the nature of man permit one, for man is inherently intolerant as to matters unknowable, and the intensity of his intolerance is twin with the intensity of his views. I assume the majority would never deny adoption "solely" because of a belief in that area, but if the belief may be considered as the majority say it may, then how much may be charged against an applicant who is a Jehovah's Witness and therefore opposed to blood tranfusions, or a Christian Scientist, who, as I understand his faith, would turn to medical aid only as a last resort? And since a man's religious, spiritual and ethical views may be more evident in his position on specific subjects than in his abstract statement of his faith, will it be all right to inquire of his attitude toward the war in Vietnam, or capital punishment, or divorce, or abortion, or perhaps even public welfare, or income taxation, or caveat emptor, in all of which some people find evidence of moral fiber or lack of it?
Nor is there anyone competent to pass judgment upon religious, spiritual and ethical matters. I do not know how a placement agency tests or equips its staff for this demanding task. I do know that neither when they were admitted to the bar nor when they were appointed to the bench, were judges asked to establish the acceptability of their own tenets or a capacity to appraise the tenets of others. As for me, I disclaim any expertise whatever. I have already interred too many of my eternal truths.
No matter how it is phrased or explained, an inquiry into religious, spiritual and ethical views can mean no more than this, that a man or a woman is unfit, or a bit unfit, to be a parent, natural or adoptive, if his or her thoughts exceed the tolerance of the mortal who happens to be the judge in a placement bureau or in the judiciary. I find such an inquiry to be as offensive as it is meddlesome and irrelevant to the true issue. Every incursion is sure to repeat the spectacle now before us. I think it strong evidence of good moral character that an applicant wants to rear a child, and that should be quite enough in the absence of positive conduct revealing unfitness for parenthood.
Jucidal Activism at it's worst: Parents denied adoption due to athieism
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. lulz
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