The world turned upside down

When General Cornwallis surrendered his British army to George Washington’s Colonial force at Yorktown, he had his band play the song, “The World Turned Upside Down.” Our own times feel like that song’s title as well. We live in a moral and legal topsy-turvy, where legal is called illegal and right called wrong.

Massachusetts has given us a new example of our world turned legally and morally upside down. Mike and Kitty Burke sought to foster and eventually adopt vulnerable children. They went through the state’s rigorous process of training and examination. However, Massachusetts denied the Burkes’ application due to their religious beliefs. The Burkes are Roman Catholic. While they emphasized that they would love any child brought to them, they also said they would continue to hold to their traditional Christian views regarding sexuality and gender identity. For their unwillingness to scuttle their beliefs, Massachusetts rejected them, with one reviewer stating that “their faith is not supportive and neither are they” regarding LGBTQ viewpoints. The Burkes now have sued in Federal district court, claiming Massachusetts’ decision violates the U.S. Constitution.

The state’s decision likely will not survive this lawsuit. Nor should it. The current Supreme Court has consistently ruled in favor of claims like that made by the Burkes. Under the Free Exercise Clause, the justices have required state governments to be “neutral,” meaning they treat religious persons and institutions on terms equal to non-religious ones. Massachusetts has failed that standard as shown in several recent SCOTUS precedents.

First, in Fulton v. City of Philadelphia (2021), the city of Philadelphia banned Catholic Social Services from continuing its longstanding work of placing children in foster homes because it would not place children with same-sex couples. The Court rejected this policy using reasoning directly applicable to the Burkes’ situation. In Fulton, a city commissioner had the power to grant individual exemptions to general rules based on his or her own assessment of the situation. The Court argued that this power made the policy not “neutral” between religious and non-religious entities because it invited “the government to decide which reasons for not complying with the policy are worthy of solicitude.” Thus, the government policy allowed itself to grant exemptions that sided with secular but not religious persons or groups if it so wanted.

Like the Catholic group in Fulton, the Burkes received an individualized assessment by the state government. This assessment included the capacity for the government to grant exceptions to general adoption rules. Like in Fulton, this policy permits the government to treat religious persons unequally with non-religious ones. That fact alone should win the case for the couple.

Second, the Court in the COVID case of Tandon v. Newson said the Free Exercise Clause was violated when government treated “any comparable secular activity more favorably than religious exercise.” Building on past precedent, the Court struck down state regulations that prohibited churches from gathering when other similarly situated, secular entities received exemptions. Here, Massachusetts gives numerous exemptions from general rules to other foster applicants for non-religious reasons. Again, this point should favor the Burkes.

Third, the Burkes have a strong case on Free Speech grounds based on this summer’s decision in 303 Creative LLC v. Elenis. There, the Court said Colorado could not force a website designer to create websites for same-sex weddings. Such a requirement would involve coercing her to speak a message she did not believe, coercion that did not exist for others, doing the same work, but holding different views.

Here, a similar situation has played out. Massachusetts is attempting to force the Burkes’ to speak a message regarding human sexuality and gender identity that they do not believe. The fact that they simply could stop trying to be foster parents does not change the legal point.

Thus, the Burkes should win their lawsuit based on the Constitution and Supreme Court precedent. But we should not ignore the moral travesty underlying Massachusetts’ decision. The Burkes should win not just because the law is on their side but also because truth and good are as well. They hold to a Biblical view regarding God’s will for human sexuality and His creation of human beings as biologically male and female. While Massachusetts thinks these views could harm foster children, the opposite is the case.

The prophet Isaiah lamented, “Woe to those who call evil good and good evil” (Isaiah 5:20). In denying the Burkes’ application, Massachusetts has called good evil and evil good. Let us hope this couple wins in court, so they can care for vulnerable children that so desperately need parents like them. And let us strive, God willing, to turn our world morally right-side up, that more children will receive the love they need, not destructive, left-wing state engineering.