Problem parents?

In Massachusetts, the foster care crisis is so bad that one 15-year-old child, James, spent 40 days last fall living in the windowless emergency department room in a Leominster, Mass., hospital. He wore paper scrubs and could leave only to use the bathroom or shower down the hall.

Dozens of children in the state’s foster care program waiting for a family have sheltered at the hospital, according to a Boston Globe report earlier this year. Others wind up sleeping on couches and beanbag chairs in offices of the state’s Department of Children and Families, because of foster and group home shortages. Experts say such experiences can deeply traumatize an already-traumatized child.

Yet, against this backdrop—with more than 1,500 children waiting for foster homes—the state’s DCF recently denied Mike and Kitty Burke from becoming foster parents because of their Christian beliefs about marriage, sexuality, and gender.

On Aug. 8, the Burkes filed a lawsuit against Massachusetts to prevent such discrimination. The suit argues their First Amendment rights to free exercise of religion have been violated.

According to legal experts we interviewed, at least four states including Massachusetts have tried in recent years to deny parents foster licensing over Christian beliefs on sexuality—part of what appears to be a ­troubling trend. They say such denials are meant to have a chilling effect.

“Massachusetts bureaucrats wanted more than just to make sure the Burkes weren’t foster parents,” says Tom Jipping, a senior legal fellow at the Heritage Foundation. “They wanted to send a message that anyone with those views about sexuality was not welcome.”

The Burkes, a Roman Catholic couple of Southampton, Mass., couldn’t wait to welcome a foster child with the hope of adopting. After years of infertility treatments and heartbreak, they’d successfully completed 30 hours of training, extensive interviews, and rigorous assessments by the DCF. The department acknowledged their strengths, including their willingness to parent a child—even siblings—with special needs or of any race, ethnicity, or culture.

Their foster study gave a single reason for rejecting the Burkes, according to the lawsuit: They “would not be affirming to a child who identified as LGBTQIA.” The study noted, “Their faith is not supportive and neither are they.”

Mark Rienzi is president and CEO of Becket, the law firm representing the Burkes. He says excluding people like the Burkes because of their beliefs is ­discriminatory and illegal: “They’re admitting precisely why they’re ­keeping people out—because they have religious beliefs about sex and ­marriage that the government doesn’t agree with. And that’s just not going to fly.”

Washington, New Jersey, and Oregon have also tried to bar potential Christian foster parents.

In Washington, a federal judge sided with a Seventh-day Adventist couple in 2020 who wanted to adopt their biological great-granddaughter. The state wouldn’t approve them because of their beliefs on sexual ­orientation and gender identity.

Last year, the 3rd U.S. Circuit Court of Appeals upheld the rights of a New Jersey couple to foster children without hiding their Christian beliefs on marriage and sexuality. The state’s welfare agency had removed their ­foster child and suspended their license after saying “their religious beliefs were a problem.”

And in Oregon, Jessica Bates sued state officials in April for rejecting her foster application because of her traditional Christian beliefs on sexuality and gender. Bates, a widowed mother of five, wants to foster and eventually adopt a pair of siblings. Sibling pairs are typically less likely to find foster homes—and Oregon’s foster system is overflowing. During an Aug. 16 hearing, Alliance Defending Freedom attorneys asked the U.S. District Court to allow Bates to move forward with a foster placement while her case proceeds.

Jessica Bates at home in Oregon Alliance Defending Freedom

Johannes Widmalm-Delphonse, an ADF attorney who is arguing Bates’ case, said the rash of similar cases may dissuade many willing families from fostering or adopting children. Adoption can cost thousands of dollars and take months to years.

The good news is that recent court decisions have ruled in favor of protecting personal beliefs. After the city of Philadelphia in 2018 stopped partnering with Catholic Social Services because the charity would not certify same-sex couples as foster parents, Catholic Social Services sued. In 2021, the U.S. Supreme Court ruled unanimously in favor of the Catholic group, saying the city had violated the organization’s free exercise of religion.

Thanks to its court win, Catholic Social Services is once again partnering with Philadelphia to help place foster kids.

“I applaud the Burkes,” says Jipping. “At the end of the day, they are defending not just their own right not to be discriminated against based on their religious views. They’re defending that right [for] all of us.”

—This story has been corrected to reflect that while adoption certification can cost thousands of dollars, foster certification is typically free or involves nominal fees.