Southampton couple claim DCF denied foster care license over religious beliefs about gender, sexuality


Staff Writer

Published: 08-16-2023 12:15 AM

NORTHAMPTON — A Southampton couple who say they were rejected as prospective foster parents because of their religious views on homosexuality and gender identity are suing a dozen representatives of the state Department of Children and Families.

Michael and Catherine “Kitty” Burke say in the lawsuit that, after 30 hours of training, lengthy interviews and assessments of their home, health and family life, DCF denied them a foster care license on the grounds that they “would not be affirming to a child who identified as LGBTQIA.” The suit, filed this month in U.S. District Court in Massachusetts, names Kate Walsh, secretary of the Executive Office of Health and Human Services, DCF Commissioner Linda Spears, and 10 others.

The suit alleges that the DCF representatives’ actions violated the “free exercise” clause of the First Amendment on four counts and the “free speech” clause of the First Amendment. It calls on the court to prohibit them from discriminating against the plaintiffs and other prospective foster parents on the basis of their religious beliefs. The suit seeks “nominal and compensatory” damages as well as attorneys’ fees.

“As faithful Catholics, the Burkes believe that all children should be loved and supported, and they would never reject a child placed in their home,” the lawsuit states. “They also believe children should not undergo procedures that attempt to change their God-given sex, and they uphold Catholic beliefs about marriage and sexuality.

“In effect,” the complaint continues, “DCF has interpreted its regulations ... as an absolute bar for Catholics who agree with the Church’s teaching on sex, marriage, and gender.”

Asked to comment on the lawsuit, a DCF official stated that the Executive Office of Health and Human Services and DCF do not comment on pending litigation.

The lawsuit terms DCF’s actions discriminatory and unconstitutional, and cites federal and Supreme Court precedents in support of its arguments.

The Burkes are being represented by Boston attorney Michael Gilleran and The Becket Fund for Religious Liberty, a Washington nonprofit law firm that defends the rights of religious believers in public life pro bono.

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Becket Fund co-counsel William Haun said the Burke case goes to the core of the fund’s mission — the right to exercise one’s faith while participating in public life.

“The Burkes were excluded from being foster parents because they have Catholic beliefs,” Haun said, a situation he termed “odious.”

A Becket Fund representative said the couple would not be available for questions from the news media.

According to the lawsuit, Kitty Burke has worked as a substitute teacher and classroom aide, gaining experience with special needs children.

Michael Burke served in Iraq with the Marine Corps and was honorably discharged. He suffered and received treatment for post-traumatic stress on his return home, which the suit says has given him compassion for and insight into the needs of others who suffer from trauma.

Both are musicians who perform at multiple Masses for the Diocese of Springfield, according to the lawsuit.

After rekindling their relationship, which began in school, the two were married in 2018. They were eager to start a family but were unable to have a child of their own, the suit states. They tried to adopt a child through a private agency but had to discontinue that process because of the high cost. After that, they began to explore becoming foster parents through DCF.

The suit states that, as foster parents, they were willing to accept their role as potentially temporary caregivers, and they also were open to adopting children who could not be reunified with their birth families. They were willing to accept sibling groups, children of any racial, cultural or ethnic background, and children with certain special needs.

After participating in the multi-session Western Regional MAPP (Massachusetts Approach to Partnerships in Parenting) Training, the Burkes underwent several hours of home interviews, during which, the suit states, they were “troubled that much of the questioning centered around their views on sexuality and their response if a child were, in the future, to struggle with gender dysphoria or to identify as gay or lesbian.” They estimated that a third of the time in the interviews was spent on these questions.

The screener who conducted the interviews concluded that the Burkes “have a lot of strengths ... and really seem to understand adoption/foster care.” The screener recommended that the couple be approved for a foster care license, conditioning the approval only on their religious beliefs about gender and sexuality.

The Burkes’ caseworker gave them encouragement before DCF’s Licensing Review Team issued its final decision. But the decision was a denial, based, according to the lawsuit, “on the couple’s statements/responses regarding placement of children who identified LGBTQIA.”

The nine members of the Licensing Review Team are all named as defendants in the lawsuit. Haun noted that the 11th Amendment prohibits lawsuits against state entities in federal court, but individuals engaged in administering state agency’s rules can be sued.

Haun praised the Burkes for their courage in standing up for all who could experience discrimination on account of their faith.

“This case demonstrates that, for as much as may change, the First Amendment is a constant — it is absolute,” he said.