The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1896-12-03
NO HALF WAY DIVORCE.
This State Cannot Have One
Law for Catholics and
Another for Prot
eStantS.
ACT OF 1894 KNOCKED OUT
Court Of Appeals on the Nature
Of the Marriage Contract in
Religion and State Policy.
Special to the Jesscp Citu Ns,cs.

in the Court Of Errors and Appeals. 1t
declares unconstitutional the act of 1891
permitting a limited divorce in cases
where the religious scruples OF one or
more of the parties were opposed to abso-
lutte divorce. The law has been frequently
employed in divorce cases.
The decision was given in the case of
Benjamin Middleton and Ellen ]. Middle
ton of Camden, on appeal from Chaneery.
The Chancery decision, SO far as it is
based upon the act in question, is re-
versed.
The wife sued for divorce, charging her
husband with adultery. Middleton admit
ted the charge, anticipating that his wife
would secure an absolute divorce, which
he appeared to want.
Mrs. Middleton was. a Roman Catholic,
and during the proceedings made that
fact known to the Court. She asked for
a limited divorce in accordance with the
statute OF 1891. This was granted, and the
husband appealed the case to the Court of
Errors and Appeals, and the latter court
has decided the act under which the di-
vorce was granted as unconststutional.
The syllabus of the opinion Gays
l. And act permitting a limited divorce,
attended by special consequences with re-
gard to property rights, or the application
of a person holding ~scruples again9t abb
solute divorce-and not otherwiSe-is con-
trary to the spirit of the Constitution OF
this State and of the United States
2. A classification defined only by IN
quiry into the private opinions of aa Of
Tended party Is not such as the principles
of constitutional construction will allow.
The opinion is as follows
The r1rioofna1 and pdyarpiOC question in
this case is the constituticnality OF the
act of 1891, which provides that for de-
sertion, adultery or extreme cruelty IN
either of the parties the Court OF Cham
Gerry may decree a divorce from bed and
board forever thereafter, or in the case or
| extreme cruelty for a limited time, as
shall seem just and reasonable; but in
every such case, except for extreme cruel
| ty. the party applying shall prove that he
or she has conscientious scruples against
| applying for a divorce from the bond OF
matrimony; when such proof Eas been
made, the Court, in case It shall deem It
Just to do SO, may also decree that the
guilty party shall forfeit all right TO
dover. courtesy and administration or
| participation in the property or estate OF
| the party in whose favor the decree Is en-
aThe wisdom Of this law is not a ques-
ton for the Court. The legality of 1t IS
all thai we are TO determine.
in this State both parties IN the case
| Of a divorce from the bonds of matrimony
may marry again; in the case of a limited
divorce neither can.
THE parties to a marriage contract,
whoever they may be and whatever their
| opinion or beliefs. have in all case5 unlH
the passage Of the law under considera-
ton, incurred the same obligations and
acquired the same rights.
THE Legislature may prescribe InoSe
| rights n obligations, but 1t must 90 50
within the limits Ike by the Constitu-
ton of this State and of the United States
and those limits are TO pc ascallalhsa py
| reference to the language of those instru-
| ments and to the spirit Indicated by thear
expression.
aIt cannot be denied that the Legisia-
ture has power to pass an aet a gaVi fn an ~
| ply for an absolute or a limited DIVORCE,
| as he or she may elect; for such an acl
would operate equally upon all persons
| and confer no exclusive privilege upon
| any. The act of 1891 is, however. NOT OF
| this character in that 1t does coFier upon
| certain petitioners rights, ana ilnposs ~,
on certain Offenders consequences Wnicn
| are determined not by the character 81
the ~offense, but by the opinions OF Inc
injured party.
| stitution of this State in terms proh1p9s
| such legislation, 1t seems clear that TINS
enactment is contrary to the wnole splrit
of hat instrument i Is therein PROVO
| icyment of any civil right merely on ae,,
| count of his religious principles and
| surely the spirit of that provision cannot
permit the religious or moral scruples
| If another person to deny to an offender,
| however culpable, the right to marry ar
| ter his offense by reservi1g for nm a
form of divorce not applicanle 70 oener
| too. which carries with IT a special pos
| sibility in relation to properly. -
1.-THE Constitution of the untted States
| forbids any State to deny to amy person
within its jurisdiction the equal protection
OF the laws, and 1t certainly seems to be
a true construction Of that prohibition 10
hold that the law w VI ai.s impress mp T zsgs them q q
the Individual opinion OF any,:
Accepted authorities in treating OF
| constitutional limitations have lad Il
| down that "a statute which would select
| individuals from a class and subject them
to peculiar rules or impose upon them
special obligations or burdens from winch
| others are exempt
aTF,a law under consideration selects IN
dividuals from a class of married often.
ders and subjects them to peculiar rules,
and imposes upon them ,speclai nurosn Ems
pen to hold scruples, subjects them TO a
peculiar rule of accountability and i'm
poses upon them consequences from Wnfcn
| ali other equal offenders are free.
when a different result IS provided for
dereiction on the part of one person from
that which is attached to the same derenc-
ton on the part Of another. tne assa Is a
I 0lSCtIIIliIldEiO "a
which is contrary to the spirit Of the
Constitution Of this State and Of the
United Staes.
Such discrimination can only. if at all,
escape from that position of r~epugnanee
nv being made to apply to a class so large,
SO consciously entered into, and so certain
" defined that the classification Is either
originally potent or deliberately accepted
by the members of It. !.
IA class which is only to be ascertained
by inquiry into the private opinions OF
another han the person operated upon
by the discrimination does not seem to
be such as the principles Of constitutional
construction can approve.
"a law which imposes upon one person
a kind of divorce which for the same
.offense It cannot apply to another be-
cause the consort of the former holds
| certain opinions which the consort of the
| latter does not, Is a law which does not
| classify in conformity with the require
ments first enumerated; and the fact that
the person who suffers from such discrim-
ination is an offender does not change
the character of such legislation nor
justify an infraction of constitutional
principles.
ssThe classlfications which have been
sustained by the courts of this State in
the Interpretation of the laws concern
ing taxes have been defined by political
or municipal lines of boundary or popula-
ton and not by the existence of opinions
or belief.
"The law of this state, which permits
an affirmation instead of an oath, acts
only upon thex person himself who holds
the scruple provided for. and Is matter of
Indifference to an others. since the con-
science Of the one who afirms is bound.
II H. xxAAAa xr~