Lawsuit: Massachusetts refuses to allow couple to foster or adopt children because of their Christian faith

A Christian conservative couple in Massachusetts has been denied the ability to adopt or foster children because of the perception by state officials that "their faith is not supportive and neither are they" of the gender and sexuality of hypothetical "LGBTQIA+ youth."

Cognizant that the "discriminatory" standard applied to them would ultimately mean a prohibition on all families like theirs of various faiths, Catholics Mitty and Catherine "Kitty" Burke have taken the commonwealth to court with the help of the religious liberty group Becket.

Parents in search of a child

Mike Burke is an Iraq War veteran. His wife, Kitty, is a former paraprofessional for special-needs kids. They are both highly involved in their church, where they perform music for mass.

After long struggling with infertility, they resolved to share their gifts, home, and love with a vulnerable foster child.

Their proposed help and stability could go a long way. After all, according to the Massachusetts Department of Children and Families, there are well over 1,521 children currently without families who could benefit from a stable pair of doting parents.

The Burkes applied to become foster parents in 2022.

In addition to drawn-out interviews and various home assessments, they completed at least 30 hours of mandatory training to the satisfaction of their instructor, who reported to the DCF that Mike and Kitty Burke "have a solid understanding of how trauma can affect people, as Mike spoke openly about his PTSD as a Veteran. Both were active participants throughout MAPP and their comments often helped to enrich the training. It is anticipated that they will work cooperatively with DCF throughout their adoption journey."

Linda-Jeanne Mack of 18 Degrees, who had conducted their home interviews, centered a great deal of her focus on Mike and Kitty Burke's views about sexuality, court documents show.

The DCF indicated in its report for the third quarter of this fiscal year that 43% of recently processed children in the 3-17 age group identified as female; 45% identified as male; 3% were missing an identifier in their records; 4% did not wish to answer; and a handful, not amounting to 1% of the total, ascribed to some gender-dysphoric identity. The plurality of kids who volunteered an answer indicated they were straight.

When asked "how they'd feel if their child identified as Lesbian, Gay, Bisexual, Queer, or any other sexuality," Kitty reportedly said, "There's nothing wrong with it, I'm going to love you the same, but I believe you would need to live a chaste life."

However, both potential parents made clear that they did not reject biological sex and held fast to their religious convictions, unswayed by the ideological fads of the day.

Christians need not apply

Mack wrote in her report that the couple has "a lot of strengths ... and really seems to understand adoption/foster care," but expressed concern whether the Burkes' beliefs about gender and sexuality would permit them to be "supportive of LGBTQIA+ youth," adding, "Their faith is not supportive and neither are they."

The social worker is said to have further noted her "apprehension about recommending [the Burkes] as a resource family due to the couple's views related to people who identify as LGBTQIA++ . . . . They are heavily involved in their Catholic Church and cite their religious views as their primary reason for seeing LGBTQIA++ individuals in this way."

Whereas Mack highlighted her concerns about the Burkes' lack of woke bona fides but did not explicitly recommend that they should be barred from fostering, court documents show that officials linked to the DCF were more than happy to go the distance to crush the couple's dreams.

Like Mack, the Licensing Review Team, under the control and responsibility of the DCF, acknowledged the Burkes' many strong qualities, but ultimately denied their application, stating, "Issue(s) of concern for which the couple's license study was denied is based on the couple's statements/responses regarding placement of children who identified LGBTQIA."

The license study concluded, "Based on this families [sic] beliefs about children who identify as LGBTQIA+ and after a careful review of this assessment by the regional DCF licensing and training review team, the Department is unable to issue a license for them to foster/adopt at this time."

The Burkes said in a statement, "After months of interviews and training, and after years of heartbreak, we were on the verge of finally becoming parents. ... 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."

The Burkes' mention of children sleeping in hospitals appears to reference the claim by DCF workers last year that children had taken to sleeping on bed-less office floors, as reported by the Boston Globe.

Following the DCF licensing team's decision, the Burkes asked for an explanation for the ruling, then requested a fair hearing.

Upon seeing the allegedly "discriminatory" rationale behind the DCF's decisions, they determined they would have to take legal action.

Burke v. Walsh

Becket filed a federal lawsuit on behalf of Mike and Kitty Burke in the U.S. District Court for the District of Massachusetts on Aug. 8 "to ensure that families like the Burkes can offer loving homes to children in need amid the state's foster care crisis."

The religious liberty group noted, "This sad conflict was entirely avoidable. Massachusetts wants to maximize foster families and rightly protect potential foster parents from religious discrimination. Instead, Massachusetts turned its policies into a ban on certain religious beliefs. This is as unconstitutional as it is unnecessary."

The couple's lawsuit claims multiple violations of their First Amendment rights, particularly the Free Exercise Clause, and highlights how the DCF's decision reeks of religious hostility, categorical discrimination, religious gerrymandering, and compelled speech.

The suit states, "The denial of the Burkes' application to serve as foster parents substantially burdens their religious exercise because it forces them to choose between the opportunity to become foster and adoptive parents for children in need and maintaining their religious beliefs," adding that the DCF's decision was ultimately "based on an individualized assessment of their religious beliefs."

Furthermore, the suit alleges, "DCF has conditioned its approval of the Burkes' application on their willingness to affirm DCF's preferred view of gender and human sexuality."

Kate Walsh, secretary of the Massachusetts Executive Office of Health and Human Services, and Linda Spears, commissioner of the DCF, are among those named as defendants in the lawsuit.

Extra to pressing the federal court to prevent state officials from declining to confer a foster care license upon the Burkes, the suit seeks compensatory damages against the defendants along with attorney fees.

Lori Windham, vice president and senior counsel at Becket, said in a statement, "It takes the heroic effort of parents like Mike and Kitty to provide vulnerable children with loving homes through foster care."

"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?" added Windham.

The Catholic News Agency indicated that neither Spears' nor Walsh's offices have yet responded to requests for comment.

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