Massachusetts’s
recent decision to deny a Catholic couple
the ability to foster children due to their religious beliefs stands at odds with Supreme Court precedent, lower federal court decisions, and the needs of children. Leaders in Massachusetts and other states should swiftly enact legislative protections for religiously motivated foster and adoptive parents.
The need for more homes for foster children is striking. The
latest available data
show close to 400,000 children across the United States are living in foster care. In Massachusetts, the
number
is 7,810. More than 200 of these are not in home-based placements.
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The Massachusetts case involves a Catholic couple, Mike and Kitty Burke, who were unable to have children due to infertility. Unable to afford the high costs of private adoption, they began the process of becoming licensed foster parents. Despite being an ideal foster family, even by the Massachusetts Department of Children and Families’ own admission — willing to adopt, to foster with the goal of reunification, and to welcome children with special needs — the state denied the Burkes. The reason: They “would not be affirming to a child who identified as LGBTQIA” because of their religious beliefs.
This denial prompted a
swift lawsuit
, which is well founded thanks to a unanimous 2020 Supreme Court
decision that
held the city of Philadelphia could not try to force Catholic Social Services to change its religious standards for child placements as a condition of providing foster care services.
A growing number of lower federal court decisions also bolsters the Burkes’ suit against Massachusetts. An
opinion
of the U.S. Court of Appeals for the 3rd Circuit held the First Amendment precludes the state of New Jersey from punishing foster parents for sharing their religious beliefs about marriage. A trial court decision in Washington found the state’s requirement that foster parents endorse the state’s perspectives on LGBT topics “disproportionately exclude[s] persons who observe certain religious faiths from qualifying as foster parents based solely on speculative future conduct.”
Turning away the Burkes is contrary not only to the law but to the interests of children in foster care.
Author and child welfare expert Naomi Schaefer Riley
noted
, “Religious organizations are really the brightest spot in what is an otherwise dismal system.”
Faith is a powerful motivation for people to provide this essential service. Riley explains that religious organizations have promoted significant changes in recruiting practices and in the training and support of foster parents. As a result, “foster families working with religious agencies foster an average of 2.6 years longer than those who do not.”
People of faith are
significantly more likely
to consider fostering. Foster parents reported that “faith/church support” was one of the top three factors in successful fostering. At one point, in Arkansas, a religious group was the source of all foster homes. Youth in foster care who attend church or have a religious belief are more likely to avoid alcohol, cigarettes, and sexual behavior and are less likely to be found delinquent.
The Burkes exemplify the ways that religious faith motivates people to give to those around them. That contribution cannot be made if states unfairly screen out, for narrow ideological reasons, the people who seek to help because of the very characteristic that motivates them.
In recent years, Utah has rightly enshrined religious freedom protections in law in areas such as
athletic uniforms
and
school holidays
, minimizing possible conflicts that can trigger lawsuits.
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This proactive accommodating approach is instructive for states such as Massachusetts in the foster care context. States should pass legislation to specify that religious affiliation or practice cannot exclude otherwise qualified religious agencies or people of faith from providing services. This does not prevent the state from recruiting and utilizing nonreligious agencies and families, who also make important contributions, given the diverse range of needs of children in the child welfare system.
Providing resources, support, and care to meet the needs of children should not be hampered by ideology. The contributions that can be made by people motivated by faith and a sense of accountability to God are a critical component of providing this relief and should be protected.
William C. Duncan is the religious freedom policy fellow for
Sutherland Institute
, an independent nonpartisan think tank based in Salt Lake City.
