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Massachusetts defends denying Catholic couple foster license even after revising gender-identity policy
By Kristine Parks
Published March 24, 2026
Massachusetts is defending its decision to deny a Catholic couple a foster care license, despite a recent policy change that the couple says would now allow families with similar beliefs to be licensed.
Mike and Kitty Burke sued Massachusetts officials in August 2023 after the Department of Children and Families (DCF) rejected their application to foster children. The Burkes say they were barred from being able to foster children in the state due to their religious beliefs about gender and sexuality.
At the time, DCF required foster parents to "support and respect" the gender identity and sexual orientation of children in their care. The policy was amended in December 2025 after federal regulators at the Department of Health and Human Services (HHS) raised concerns that DCF had violated applicants' constitutional rights.
Both sides filed summary-judgment motions on March 13. The Burkes argued discovery showed they were denied "on the basis of their religious beliefs" and that the later policy change undercuts the state’s justification.
Catholic couple Mike and Kitty Burke are suing Massachusetts officials on First Amendment grounds after their foster care license application was denied due to their religious beliefs about gender and sexuality not meeting licensing requirements. (Becket)
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However, state officials argued the Burkes were denied not because they were Catholic, but because they could not meet the licensing requirements then in effect, and denied their LGBTQ requirements were hostile to the Burkes' religious beliefs or were drafted to target religious beliefs.
The state also argued those requirements were constitutional, saying they applied to all applicants, served a compelling interest in protecting vulnerable children and allowed no exceptions.
"DCF’s paramount concern is the health, safety, and long-term well-being of the children in its custody, including providing a 'safe, nurturing, and permanent family' for each child," the state filing reads. "The LGBTQ+ Requirements allowed for no exceptions, because children disclose LGBTQ+ identities at all ages, and DCF has no way of knowing which children will ultimately develop and disclose such identities."
Massachusetts acknowledges the regulation and related policies were amended in December, but says the case should be judged under the rules in effect when the Burkes were denied in 2023.
The Burkes' license was denied after they said during the licensing process they would not use pronouns inconsistent with their beliefs, would not support "gender-affirming care" and believed same-sex relationships were sinful.
The couple says the state is being hypocritical by continuing to defend their rejection in court after changing the policy. In a statement released by Becket, the law firm representing them, the couple said, "After three long years, we thought Massachusetts was ready to welcome loving families of all types, including ours. Its actions, unfortunately, reveal its true colors."
"The Commonwealth is arguing in court that it is harmful to children to place them with compassionate families who hold traditional beliefs about marriage, sexuality, and gender," they continued. "We’re asking the court to put an end to this hypocrisy and open the door for devoted families to help children who need a stable home."
Lydia and Heath Marvin, a Christian couple in Massachusetts, lost their license due to the state's LGBTQ requirements. (The Marvins/Stephanie Keith/Bloomberg via Getty Images)
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Becket attorney Lori Windham accused the state of applying an ideological test to foster families.
"The state that brought us the Salem witch trials is still hunting for people with the wrong beliefs," Windham said. "It loudly champions diversity and inclusion — except for religious beliefs it doesn’t like."
Becket says a decision by the court is expected to be released this fall.
Several other Christian foster families in Massachusetts have also challenged the state over its LGBTQ-related foster care requirements.
Massachusetts' Department of Children and Families did not immediately return Fox News Digital's requests for comment.
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