Can The Government Restrict Adoption on the Basis of Religious Beliefs?

    Mike and Kitty Burke are a Roman Catholic couple from Massachusetts who have long-waited to become parents and grow their family. Unfortunately, the Burkes learned early in their marriage that conceiving biological children of their own was not in the cards as Kitty faced uphill struggles with fertility. Failing to allow discouragement to ensue them, the Burkes applied to be foster parents in 2022 and began the necessary steps to build their family. However, following interviews with officials from the Massachusetts Department of Children and Families, this dream was once again crushed but for a much more problematic reason. 

    On August 8th, 2023, the U.S. District Court for the District of Massachusetts was tasked with determining whether or not an action committed by Massachusetts' Department of Children and Families violated the Free Exercise rights of Mike and Kitty Burke. In the case of Burke v. Walsh, the Department of Children and Families denied a request submitted by the Burkes to foster and adopt children in Massachusetts who are in desperate need of stable and loving families. The Burkes endured extensive training and expressed that they would be willing to accommodate children with behavioral needs or larger families to keep siblings intact. It did not matter to them, just as long as they had the opportunity to become foster parents. The request was denied by the Massachusetts DCF on the grounds of the Burkes' sincerely held religious beliefs regarding gender and human sexuality as well as the sanctity of marriage. The Burkes expressed their reservations about supporting a child who identified as LGBTQIA. Regardless of how much the Burkes appeared to be the ideal foster couple on paper, officials from the Department of Children and Families ultimately denied the request and said that "their faith is not supportive and neither are they." And in doing so, it is argued that in practice, these regulations of unwavering support is a universal bar against all Roman Catholics who agree with the Church's teaching on sex, marriage, and gender. (see a pdf of brief here)

    There are two compelling arguments raised by both parties in Burke v. Walsh. When it concerns the arguments raised by the Burke family and their attorneys, they argue the Commonwealth of Massachusetts is forcing them to choose between their faith and their desire to raise children in their household. Kitty Burke has suffered with fertility issues and is unable to have biological children of her own. By requiring her and her husband to pledge to support such behavior that contradicts their Roman Catholic beliefs at the expense of parenthood is a substantial burden and one that the government is not constitutionally allowed to impose. The attorneys for the Burkes even cite how officials from the Department of Children and Families were impressed with the eagerness expressed by both Mike and Kitty in being prospective parents. They were willing to do whatever it took to give a child in need a loving home. However, as mentioned the Commonwealth of Massachusetts declined their request on their failure to pledge support for the lifestyle their child chose in the future. There is a compelling state interest in ensuring the child being placed into the care of the Burkes is allowed to thrive in a loving and supportive environment. A possible argument can be made in the future on behalf of the child that the religious beliefs of Mike and Kitty Burke could restrict the right to self-determination that child has, which the Commonwealth of Massachusetts can be found to be complicit with. The foster child is entitled to grow up in a supportive environment and given equal opportunities to succeed in life. It is quite possible that growing up in a non-entirely supportive religious environment could harm the child further down the road. 

    In the plaintiff's brief published by their attorneys, there are two specific precedents used to argue that the Massachusetts Department of Children and Families' regulations have already been decided as unconstitutional by both the U.S. Supreme Court and U.S. Appeals Courts. In Fulton v. City of Philadelphia, the Supreme Court unanimously rejected any attempt to exclude Catholic foster care agencies from the child welfare system. The Court ruled that discrimination on the basis of religion was unconstitutional and a breach of the Free Exercise Clause. In Lasche v. New Jersey, the Third Circuit Appeals Court held that "the First Amendment prohibits retaliation against foster parents for sharing their religious beliefs on marriage." However, the plaintiffs warn that if the Massachusetts' regulation for its child welfare system were allowed to stand, then other religious groups such as Muslims, Jews, and Protestant Christians who believe similar teachings will be barred as well. This is problematic when we apply the First Amendment and its Free Exercise Clause because this particular policy will unevenly restrict the rights of religious couples from ever engaging with the child welfare system. 

    Now that the majority of the facts from Burke v. Walsh are explained, I think that if I were a jurist overseeing the legal proceedings I would be inclined to side with the Burkes and strike down the Massachusetts DCF's policy as a violation of the Free Exercise Clause. Even though I can sympathize with the state interest of ensuring foster children are placed in homes with unwavering love and support, there is still a pressing issue facing the Massachusetts Government in the number of foster children circulating their system. It is estimated that 1,500 children across the state are without families. The crisis has become so extreme that "the state has resorted to housing children in hospitals for weeks on end... because the Commonwealth has nowhere else to put them." It is clear that the state has a more compelling interest in reducing the crisis and placing children in loving homes that do not violate any other procedural standards except for their religious beliefs. Discriminating on the basis of religion during this crisis only adds fuel to the fire. These families are more than willing to take in as many children as possible and give them opportunities they could only dream of. In addition, when the regulation is put in practice, its effects are one that discriminates against many religions and would therefore be a clear violation of the First Amendment.