Monday, March 25, 2024

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. 
    

4 comments:

  1. I think that this is a very complicated issue. On the one hand, the state has a compelling state interest in providing children with a safe home, but on the other hand, the Burkes do not have a right to have children. The court is not saying that they can't have children of their own and raise them as they see fit, unfortunately, it is other circumstances preventing that. If the Burkes are willing to provide a safe and welcoming home, that is providing a service to the state, but if they are not willing to provide a welcoming home, for example, they may be openly hostile to an LGBTQIA child, then they should not be giving the responsibility. Ultimately, the children have a right to a safe home, but the Burkes do not have a right to be "given" children. Maybe the state could work to rectify the pressing issue of children without homes by partnering children who will not feel harmed by the Burkes's religious views with the Burkes. This way there is one more child out of a homeless situation, and the Burkes have the opportunity to raise a child.

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  2. Great Post! This was a case that caught my eye from the title. I agree with your standing on what the outcome should be. The Commonwealth of Massachusetts is in violation of the Burkes First Amendment right. All they want to do is adopt a child (or many) but based on their religion they are not able to. I would like to add the officials of the DCF were very impressed by how eager the Burkes wanted to adopt and would accommodate the children in any way to create a loving home. Also, previous cases have been in favor of the families adopting so I don't see this case changing that narrative.

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  3. Hi Anthony,
    I found this to be a very interesting topic and read. I agree with you on what the outcome should be. I think the Burkes' First Amendment rights are being violated. When adopting a child, the first goal is to make sure that the child is being placed into a loving home that will protect, love, and accommodate for the child. The Burkes also showed great amounts of eagerness to adopt a child especially since they cannot have children on their own. A question I would pose is: What beliefs are they allowed to have? Everyone has their own opinions and beliefs on everything. That is what makes us all different. Therefore, the Commonwealth of Massachusetts is showing that they will discriminate against religion. That means that there many different religions cannot adopt as well including Jews, Muslims, Christians, etc. Another interesting point to make is are we pushing beliefs on the people who want to adopt as well? The Burkes show that they would be loving parents and are willing to go great lengths for children as long as they play by rules of the Commonwealth. This may be taking their freedoms away for the parents as well as a loving home for a child.

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  4. This is a very intriguing post to me. As someone who has a cousin who was adopted into a religious family I find this to be even more interesting. I don't see how a family who has checked all the boxes and has all the characteristics of showing to be a loving family could be denied. The state does have a strong interest in ensuring that the state has a strong loving home but to what extent is denying a strong loving home. I think the state should find a way to show how the kids who are being adopted based off geographic location and previous religious background.

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