Denver, Colo., Aug 9, 2023 / 07:25 am

Massachusetts foster care authorities wrongly denied a Catholic couple approval to become foster parents because they hold to Catholic teaching on marriage, sex, and gender, a lawsuit against state officials and the state foster system charges.

The prospective foster parents, Michael and Catherine Burke, reside in Southampton, Massachusetts. Mike is an Iraq war veteran, a small-business owner, and an organist for multiple Diocese of Springfield parishes. Catherine, who goes by “Kitty,” is a former special education caregiver, a small-business owner, and a cantor for the Diocese of Springfield.

The lawsuit, filed Tuesday in the U.S. District Court for the District of Massachusetts, describes the Burkes as “a loving couple who want to welcome children into their family.” Having experienced infertility, they applied to become foster parents through the Massachusetts Department of Children and Families.

The process includes 30 hours of training, lengthy interviews, and an assessment of their home, health, and family life. However, the Burkes say they were troubled that many of their home interview questions focused on their Catholic views about sexual orientation and gender dysphoria.

“After months of interviews and training, and after years of heartbreak, we were on the verge of finally becoming parents,” the Burkes said in an Aug. 8 statement released by the Becket law firm, which is representing them. “We 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.”

According to the lawsuit, only one reason was given for their denial. According to Department of Children and Families (DCF) records, authorities said the Burkes “would not be affirming to a child who identified as LGBTQIA.” The acronym stands for lesbian, gay, bisexual, transgender, queer, intersex, and asexual.

Other documents noted the Burkes’ devout Catholic faith, their regular church attendance, and their work at local churches as musicians. The author of their foster parent license evaluation said the Burkes are “lovely people” but said “their faith is not supportive and neither are they.”

The lawsuit rejects the claim that the Burkes are not supportive, saying they “believe that all children should be loved and supported, and they would never reject a child placed in their home.”

“They also believe that children should not undergo procedures that attempt to change their God-given sex, and they uphold Catholic beliefs about marriage and sexuality,” the lawsuit continues. “Because of those decent and honorable beliefs, DCF decided the Burkes were not ‘affirming’ and therefore prohibited from fostering any child in Massachusetts.”

DCF regulations require foster families to “support and respect a child’s sexual orientation or gender identity.” In effect, the lawsuit argues, DCF has interpreted this rule “as an absolute bar for Catholics who agree with the Church’s teaching on sex, marriage, and gender.”

“It takes the heroic effort of parents like Mike and Kitty to provide vulnerable children with loving homes through foster care,” Lori Windham, vice president and senior counsel at Becket, said Aug. 8. “Massachusetts’ actions leave the Burkes, and families of other faiths, out in the cold. How can they explain this to children waiting for a home?”

The lawsuit says that the Burkes had previously been recommended for approval as adoptive parents when they sought to adopt through a private adoption agency, a path they abandoned because financial costs were prohibitive.

DCF regulations, as well as the Massachusetts Foster Parent Bill of Rights, bar religious discrimination against possible foster parents, the lawsuit notes.

The lawsuit alleges that DCF practice burdens some prospective foster families who are religious, in violation of the First Amendment. It charges that the denial of the Burkes’ adoption application is a substantial burden on their exercise of religion, forcing them to choose between becoming foster and adoptive parents or maintaining their religious beliefs.

According to the lawsuit, the plaintiffs “experienced hostility towards their Catholic beliefs” throughout the application process in violation of the First Amendment’s free exercise clause. DCF policy, in effect, favors some religious beliefs on human sexuality, while disfavoring those of the Burkes.

“DCF’s actions are discriminatory and unconstitutional,” says the lawsuit, citing a federal court’s ruling enjoining similar regulations in the state of Washington.

DCF’s policy would bar any Massachusetts family with similar beliefs from fostering or adopting through the child welfare system, the lawsuit argues. Many Muslims, Jews, Protestant Christians, and others have similar religious beliefs.

The lawsuit cites DCF figures that there are about 1,500 children who have not been placed with families in the Massachusetts foster care system. In the Western Regional Office, whose jurisdiction includes the Burkes’ home residence, more than 300 children under its authority have not been placed with families.

The lawsuit asks the federal court to bar state officials from declining to issue a foster care license to the Burkes and to bar state officials from discriminating against foster parents. It also seeks nominal and compensatory damages against the defendants as well as attorney’s fees.

Named in the lawsuit are several Massachusetts officials, including Kate Walsh in her official capacity as secretary of the Massachusetts Executive Office of Health and Human Services, and Linda Spears in her official capacity as commissioner of the Massachusetts Department of Children and Families.

CNA sought comment from Walsh’s and Spears’ offices but did not receive a response by publication.

Catholic institutions that aid in adoptions and foster care placements have also faced legal and regulatory pressure.

Catholic Charities of Boston was forced to close its adoption services in 2006 because it would no longer place children with homosexual couples, as required by state law. Catholic agencies in other states have been barred from operating or denied government funds because of similar laws.

A unanimous 2021 Supreme Court decision, Fulton v. City of Philadelphia, ruled that the City of Philadelphia violated Catholic Social Services’ free exercise of religion when it stopped contracting with them for foster care services in 2018. Catholic Social Services had refused to certify same-sex couples as foster parents because of its Catholic beliefs on marriage.