Analysis: Massachusetts rejects Catholic couple as foster parents

In April, officials in Oregon denied Jessica Bates, a widowed mother of five, the opportunity to adopt siblings under the age of nine from foster care. The reason? She would not “accept” and “support” the sexual orientation and gender identity of any child the state would place in an applicant’s home due to her nondenominational Christian beliefs.

While Ms. Bates’ claim is pending, a similar situation has emerged on the other side of the country.

Officials in the Massachusetts Department of Children and Families rejected the application of a Catholic couple who applied for a license to become foster parents. Mike and Kitty Burke, a veteran of the Iraq War and former special education paraprofessional, respectively, owners of a small, unidentified business are both active in Catholic churches where he is an organist and she is a cantor.

Because they are unable to have their own children due to infertility issues, the Burkes initially sought to become adoptive parents but discontinued the process when they were not matched with a child. After the cost of a private adoption proved to be too great, the Burkes applied for a license to become foster parents who were willing to accept siblings groups to help preserve family bonds. The Burkes intended “to welcome a child of any racial, cultural or ethnic background into their family.” Moreover, in light of Kitty’s background, the Burkes offered to accept children with specified special needs.

Following “30 hours of training, lengthy interviews, and an assessment of their home, health, and family life,” and having “received high marks from the instructors,” DCF officials denied the Burkes’ application apparently due to their Catholic views on sexual orientation, marriage, and gender dysphoria. During the interview process, the Burkes made it clear that they would love and accept any child, regardless of the youngster’s future sexual orientation or struggles with gender identity. “Kitty shared that in such situations ‘there’s nothing wrong with it, I’m going to love you the same, but I believe you would need to live a chaste life.’”

The Burkes were rejected even though over 1,500 children in Massachusetts are awaiting loving, caring homes. DCF officials denied the Burkes’ “last opportunity to be parents” “because they expressed their religious views about gender and human sexuality and because those views conflicted with DCF’s preferred view.” The only reason given by officials for the denial was that the Burkes “would not be affirming to a child who identified as LGBTQIA.”

Disappointed at having been denied the opportunity to serve as foster parents, the Burkes challenged the action of DCF officials. The Becket Fund for Religious Liberty, a public interest law firm, filed suit against the DCF on their behalf on August 7, 2023.

A day before Becket filed suit, its officials issued a statement on behalf of the Burkes who commented that they “were absolutely devastated to learn that Massachusetts would rather children sleep in the hallways of hospitals than let us welcome children in need into our home.”

Becket filed overlapping First Amendment Free Exercise and Free Speech Clauses claims on behalf of the Burkes.

Free exercise claims

Those claims were filed in conjunction with Section 1983, a far-reaching federal statute that protects individuals when public officials allegedly deprive them of their federally protected rights such as to freedom of religion and speech. The complaint began by noting that under the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The complaint, in its first religion-based claim, charged that the DCF’s selection process failed to meet constitutional standards because it was not “generally applicable.” The complaint pointed out that the DCF’s approval process to license foster families involves interviews with individual care giver assessors who have great latitude in applying its standards. The complaint described the DCF’s approach as problematic when applied to the Burkes because it “substantially burdens their religious exercise by forcing them to choose between the opportunity to become foster and adoptive parents for children in need and maintaining their religious beliefs.”

The complaint also alleged that the DCF’s approach failed to pass strict scrutiny, the highest level of constitutional analysis which applies when the public officials seek to limit fundamental rights such as freedom of religion, or speech. When courts apply strict scrutiny, they usually reject governmental restrictions for impinging on fundamental rights such as those identified in the Federal Constitution. The complaint raised this issue because by affording assessors essentially unfettered discretion, the DCF’s policies were insufficiently and narrowly tailored to achieve a compelling governmental interest.

The complaint also indicated that the DCF’s policy was not generally applicable because it grants exceptions for secular purposes such as home capacity and status as a legal resident but fails to protect religion in a similar manner. This, the complaint observed, allowed DCF officials to exclude applicants categorically due to their religious beliefs.

The third allegation the complaint raised was that far from being neutral toward religion, DCF policies are hostile toward people of faith. For example, earlier in the complaint the Burkes expressed their dismay at being troubled by the hostility they experienced because the caregiver assessor spent at least a third of the time during their interviews questioning their views on sexuality and their response if a child were, in the future, to struggle with gender dysphoria or to identify as “gay” or “lesbian”.

As evidence of hostility to the Burke’s Catholic beliefs, the DCF’s caregiver assessor declared that their “faith is not supportive and neither are they” despite their assertion that they were willing to accept any child regardless of future sexual orientation or struggles with gender identity. The interviewer further “expressed ‘apprehension about recommending [the Burkes] as a resource family due to the couple’s views related to people who identify as LGBTQIA++,” because they are “heavily involved in their Catholic Church and cit[ing] their religious views as the primary reason for seeing LGBTQIA++ individuals in this way.”

Instead of rejecting the biased assessment, DCF officials ignored a Massachusetts statute pursuant to which “a foster parent shall not be discriminated against on the basis of religion, race, color, creed, gender, gender identity, sexual orientation, national origin, age or disability.”

In the final section of its religion claims the complaint focused on the actions of DCF officials who treated faith-based status with disfavor, failing to demonstrate the required neutrality. The complaint observed that DCF regulations purportedly have the best interests of children at heart but “work to preclude people with certain religious beliefs from participating in foster care.”

The final section of the complaint citied Chief Justice Roberts’ majority opinion from Carson v. Makin, wherein the Supreme Court protected the rights of parents in Maine to obtain tuition assistance to send their children to the schools of their choice because their board did not operate a public high school. The complaint noted “[i]t is ‘odious to our Constitution’ for the Burkes to continue adhering to their Catholic beliefs “at the cost of automatic and absolute exclusion from the benefits of a public program for which [they were] otherwise fully qualified.’”

The complaint again criticized DCF for lacking a compelling interest to discriminate against the Burkes because the behavior of its officials was not narrowly tailored to achieve such a goal.

Free speech

Although not quoting the First Amendment, the final part of the complaint raised concerns about compelled speech, a topic of recent concern that the Supreme Court examined in 303 Creative v. Elenis, in violation of the constitutional mandate that “Congress shall make no law … abridging the freedom of speech.” The Court reasoned that officials in Colorado could not require a wedding website designer to make her services available to individuals entering same-sex marriages because doing so would have violated her sincerely held religious beliefs that such relationships are between one man and one woman. Quoting 303 Creative, the complaint claimed that DCF officials violated the Free Speech Clause because even if “a government is insisting on antidiscrimination requirements against public accommodations” they lacked “a compelling interest in forcing the Burkes to affirm a viewpoint with which they do not agree.”

The last section of the complaint identified the remedies the Burkes sought, most notably, preliminary and permanent relief preventing DCF officials from refusing to grant them a license to serve as “foster parents on the basis of their religious beliefs, speech, and exercise on the issues of marriage, human sexuality, and gender identity.”

Finally, the Burkes requested nominal and compensatory damages against various officials in their personal capacities, meaning they could not claim immunity for acting in their official capacities, court costs, and reasonable attorney fees along with such other and further relief as the court deems appropriate and just.

Analysis

On its face, based on the strength of the Supreme Court precedent that the Burkes and their attorneys are relying on, this should be a clear victory when a federal trial court in Massachusetts hears their case (assuming it is not resolved before then).

Initially, as to the Free Exercise claims, governmental officials at any level cannot deny generally available benefits to people of faith, or their institutions, such as child placement agencies, simply because of their religious beliefs. Amazingly, this appears to be what is happening to the Burkes.

Again, if public officials attempt to attempt to limit fundamental rights such as freedom of religion or speech, their actions must be based on a compelling, or overwhelming, governmental interest, a high standard that is clearly lacking. If public officials do attempt to limit fundamental rights, they must do so in the least restrictive manner, meaning they cannot unduly burden the rights of believers if other options are available, something that DCF officials also failed to do.

In 303 Creative, the Supreme Court traced the history of compelled speech, which the complaint only partially covered. Suffice it to say that the complaint highlighted the Court’s history of having banned compelled speech starting with its 1943 order in West Virginia Board of Education v. Barnette. In Barnette the Justices affirmed that public school officials could not compel students who were Jehovah’s Witnesses essentially to salute the flag, a form of speech, because doing so violated their religious faith as a form of ignoring a Biblical prohibition against saluting a graven image. Returning to Creative 303, the complaint emphasized that the DCF neither has “a compelling interest in forcing the Burkes to affirm a viewpoint with which they do not agree” nor was its denial of the Burkes’ application narrowly tailored to achieve a compelling governmental interest.

Reflecting on the situation DCF placed the Burkes in, it is clear that activists are trying to prevent religiously-affiliated adoption and child care facilities, as well as those sponsored by states, by denying people of faith opportunities to adopt or even serve as foster parents if they hold fast to their sincere religious beliefs on marriage and human sexuality. To this end, such activists have succeeded in shutting them down in California, Illinois and Washington, D.C., and Massachusetts, ignoring the needs of children as they pursue their ideological goals.

But recent litigation indicates they may be some light at the end of this particular tunnel. Two years ago, in Fulton v. City of Philadelphia, a unanimous Supreme Court ruled that when officials denied Catholic Social Services the opportunity to provide foster care to needy children because it refrained from placing youngsters with same-sex couples, they violated its First Amendment rights. The Court vitiated the policy because, as with arguments the Burkes have advanced, it was neither neutral nor generally applicable insofar it singled out a faith-based institution based on its sincerely held religious beliefs for unequal, even hostile, treatment. The Justices concluded that because officials lacked a compelling governmental interest to deny CSS an accommodation that would have allowed it to continue serving children in a manner consistent with its religious beliefs, the policy violated the Free Exercise and Free Speech Clauses, an outcome like to occur in the Burkes’s case.

Earlier this year, a federal trial court, on remand from the Second Circuit, found in favor of New Hope Ministries a voluntary, privately funded Christian ministry devoted to providing adoption services and authorized to do so in the State of New York for more than 50 years.” New Hope also serves as a temporary-foster-placement agency and pregnancy resource center.

Granting New Hope’s motion for summary judgment, the federal trial court “permanently prevent[ed] the state of New York from shutting down a faith-based adoption provider targeted for its religious beliefs” of placing children in families consisting of a married mother and father. As part of its judgment the court “barred officials from compelling New Hope to place children in same-sex households.” Consequently, New York State officials “agreed to pay New Hope a $250,000 settlement” while the Ministry continues another case against public officials.