Religious Liberty and Foster Care Policy

Massachusetts is asking a federal court to uphold its 2023 decision to deny a foster-care license to Catholic couple Mike and Kitty Burke, even though the state revised its LGBTQ-related foster-parent policy in December 2025 after federal health officials warned it may violate applicants’ constitutional rights. In cross-motions for summary judgment filed March 13, the Burkes argue discovery shows they were rejected 'on the basis of their religious beliefs' about gender and sexuality and say the later policy change undercuts the state’s claim that its old rules were necessary. State lawyers counter that the couple were turned down not for being Catholic but for refusing to meet then-existing requirements to 'support and respect' a foster child’s gender identity and sexual orientation, and insist those rules were neutral, applied to all applicants, and allowed no exceptions because DCF cannot know in advance which children will identify as LGBTQ. The state further contends the case should be judged solely under the 2023 rules in effect at the time of denial, while the Burkes and their attorneys at Becket accuse Massachusetts of hypocrisy for defending a policy it has since amended at HHS’s urging. The outcome could shape how far child-welfare agencies may go in conditioning foster and adoptive placements on compliance with gender-identity and sexuality standards when those conflict with prospective parents’ religious beliefs.