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
9 comments:
Thanks for this post. I agree with your analysis and recognize how challenging it is to figure out what is a compelling interest. In this case, in some ways it seems low probability that the Burkes get placed with a child who ends up wanting gender affirming care; however, if that did happen I do agree it would cause significant harm to the child. From the Burkes perspective, I would feel very annoyed as they seem to be good candidates and only due to their religious perspectives were they rejected by DCF.
This seems like a complicated case because there is a religious burden on the couple applying to adopt, but their views have potential effects on the children that would be placed in their care. I agree with your view that the protection of the children is enough to justify denying the license because the couple would not support a child with certain identities. It matters for this case because their beliefs affect the care the child will receive, which is different from the example discussing the identity of the parents being rejected for being a same sex couple.
This is a very difficult decision to make, but I would side with the DCF in this case. The DCF has the duty to ensure that children are protected in the home they are placed into. It would be a failure of the licensing process to allow a child to go into a home that they do not feel welcome and safe in. However, this is also a rather strong burden to place on the Burke family. With that being said, I think the potential burden on the child is still much larger than the burden that the Burke family is facing by not being able to receive the foster parent license.
Your argument that the courts prioritize the welfare of children and not the appaernt religious burdens placed upon an individual is very compelling, particularly since you reference the precedent set by the Magazu case. Supporting your argument is the overwhelming evidence that LGBTQ+ youth in foster care are subjected to higher rates of mental health issues. The Burkes’ beliefs deserve to be respected, but the fact that the state has a uniform placement policy helps provide protection to all children (not just certain children).
I would also agree with the DCF's decision. If the Burke's were to adopt a child that has an identity that goes against their religious beliefs, then the children safety would be in a worse position with the Burke's compared to a family that doesn't share the same religious values. I think that the DCF's number on priority needs to be to protect the safety of the children, which means that there is enough of a compelling interest to deny the Burke's parental rights.
I think this case overall highlights the tension between religious liberty and protecting foster children. While the family was qualified to care for the child, their refusal to acknowledge the foster child's sexual orientation directly violates the DCF's neutral requirements. This demonstrates what I believe is a compelling interest for the state to protect the rights of the foster child (whom is considered under the care of the state).
I think that this case is one that can be hard to agree with one side completely. On one hand, I agree that protecting the religious freedoms of potential foster parents is important, especially since this family seems like they would be good parents otherwise. However, I think that the stronger argument is the states compelling interest to protect LGBTQ children from experiencing more harm in a home that is supposed to be safe for them.
This is a very interesting case and I am not sure which side I agree with. On one hand, I understand DCF's goal to place children in homes that discriminate against LGBTQ+ members. I think the state does have a compelling interest in protecting children from discrimination, especially in the foster care system when they are placing children with a guardian for many years. On the other hand, I do not believe that the Burkes should be forbidden to adopt a child just because of their opinion. Maybe the only way for them to have a child is to adopt. Further, I question which is worse: for a child to stay in foster care (often a very hard place to grow up) or for them to find a home, even if their guardians discriminate against LGBTQ+ members.
This case is interesting, as both the values of the Burkes and of the DCF are legitimate, regardless of whether or not you agree with them. However, the foster care system is designed to be more than just a physical space for children, it is meant to be one where they can be emotionally safe as well. Child safety is absolutely a compelling interest of the state, and in this case, the state isn't directly punishing religious belief, they are setting caregiver expectations for foster parents. Given the long-lasting and even dangerous impacts discrimination can have on LGBTQ+ individuals, I agree that anti-discrimination protections will outweigh free exercise in this case.
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