Michael and Catherine “Kitty” Burke are a Massachusetts couple looking to adopt children through the Massachusetts Department of Children and Families (DCF). The couple first applied in January of 2022. They strongly desired children aged 4-12 years old with the end goal of adoption, not reunification. The couple are devout Roman Catholics who regularly go to mass and work as musicians for their local churches. Their traditional religious beliefs include “...children should not undergo procedures that attempt to change their God-given sex, and they uphold Catholic beliefs about marriage and sexuality.”(Burke Complaint) Despite being praised in primary interviews by the DCF in 2023, the couple was denied a foster care license for one reason: “...would not be affirming to a child who identified as LGBTQIA.”(Burke Complaint) The Burkes filed a lawsuit on the grounds that this decision violated their First Amendment rights of free exercise of religion.
A DCF licensing requirement for applicants is that they must be able to support and respect a foster child’s sexual orientation and gender identity, called the LGBTQ+ Requirements; this was enacted in order to protect the mental well-being of children who would be negatively impacted by a placement that violated such a requirement. In order to be accepted, applicants must comply with the set requirements. Other requirements include the LGBTQIA+ Nondiscrimination Policy, effective June of 2022 and provided March 2023, foster parents “...must be respectful of how individuals ask to be identified and use the terms an individual uses to describe themselves,” “children/youth in care are allowed to express themselves through clothing, accessories, hairstyles, and other means of expression consistent with their identities,” and, “do not make attempts to convince LGBTQIA+ children/youth to reject or modify their sexual orientation, gender identity, or gender expression.” (Defendants Memo) Another policy, the “Licensing of Foster, Pre-Adoptive, and Kinship Families,” stated that DCF had the expectation of foster parents supporting the child’s sexual orientation and gender identity and will be treated with respect regardless of sexual orientation and gender identity. Each policy requirement is applied to every applicant, regardless of religion, and is not open for exceptions.
In addition to the numerous policies for foster children, DCF regulations, and the Massachusetts Foster Parent Bill of Rights have protections for foster parents. One of them includes, “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.” (Mass.gov)
The Burkes’ lawsuit relies on a previous case, Fulton v. City of Philadelphia. In Fulton, the city of Philadelphia prevented Catholic Social Services (CSS) from placing children in foster homes because of CSS’s policy against licensing same-sex couples to be foster parents. Both parties had a shared contract that stated the CSS would not reject prospective foster or adoptive parents based on sexual orientation unless an exception is granted by the Commissioner. CSS then sued Philadelphia on the grounds that its right to free exercise of religion and free speech entitled the agency to reject same-sex couples because of their sexual orientation, not any qualities related to childcare. Ultimately, the Supreme Court ruled unanimously that Philadelphia’s actions burdened CSS’s free exercise of religion by forcing the agency to choose between its stated religious beliefs or certify same-sex couples. Although in a previous case the Court had ruled that generally applicable laws may incidentally burden religion, the Philadelphia law was not neutral and generally applicable because exceptions could be granted to the anti-discrimination requirement through the Commissioner. CSS’s actions do not fall within public accommodation laws because being certified as a foster parent is not a public service. Therefore, the city of Philadelphia could not bar CSS from enforcing its policy.
The defense’s case is backed by a licensing requirement established in 2016 by the Massachusetts Supreme Judicial Court in the case Magazu v. Dep’t of Child. & Fams. This held that, “DCF can lawfully apply a licensing requirement meant to protect children in its custody even where the requirement may, in effect, exclude certain applicants due to their religious beliefs.” (Defendants Memo) Despite the burden on religious beliefs, the court held that DCF had “a sufficiently compelling interest to justify this burden”—“‘protect[ing] children from actual or potential harm.’” (Defendants Memo).
I fully agree with the DCF’s mission to protect foster children, a vulnerable population, but I also do not want children to stay in foster care if there is a safer option for them. It does not seem that the Burkes are bad people; their religious beliefs do not make them so, but they do make room for potential conflict. A LGBTQIA+ child placed in their care could suffer actual or potential harm. In this case, I am anticipating that the court will rule in favor of the DCF, following the precedent in Magazu. Ultimately, I do believe that, in this case, the compelling interest to protect an extremely vulnerable population in our society justifies the burden that might have been placed on the Burkes.
https://becketfund.org/case/burke/
https://www.oyez.org/cases/2020/19-123
https://becketnewsite.s3.amazonaws.com/20260316122241/2026-03-13-169-Defendants-Memo-ISO-MSJ.pdf
https://becketnewsite.s3.amazonaws.com/20230808154524/Burke-Complaint-and-Exhibits.pdf
https://www.mass.gov/info-details/mass-general-laws-c119-ss-23c
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