Burke v. Walsh

Religious couple opens their hearts to children in need

Mike and Kitty Burke are a Catholic couple from Massachusetts who have long wanted to become parents. Mike is an Iraq war veteran, Kitty is a former paraprofessional for special needs children, and together they run a small business and perform music for Mass. Unfortunately, the Burkes learned early on in their marriage that they would not be able to have children of their own. Mike and Kitty began exploring becoming foster parents through the state’s foster care program with the hope of caring for and eventually adopting children in need of a stable, loving home like theirs.

Children in foster care throughout Massachusetts are waiting for their forever family like the Burkes. The Massachusetts Department of Children and Families (DCF) currently does not have enough foster homes or facilities to meet the needs of the children in its care, leaving over 1,500 children without a family. The crisis has become so extreme that the state has resorted to housing children in hospitals for weeks on end—not because the children need medical attention, but because the Commonwealth has nowhere else to put them. Now more than ever, Massachusetts needs loving couples like the Burkes to foster children in need.

Massachusetts cuts foster kids off from loving, faithful homes

When Mike and Kitty applied to become foster parents in 2022, they underwent hours of training, which they completed successfully. Their instructor reported their positive contributions in the class to DCF, noting that the couple helped to enrich the training program for other parents. The Burkes also underwent extensive interviews and a home study. Throughout this process, Mike and Kitty emphasized their willingness to foster children from diverse backgrounds and with special needs. They expressed their openness to fostering sibling groups, as well, so that children in need could maintain those critical family ties. In all respects, the Burkes were an ideal foster family.

During their home interviews, however, the Burkes were troubled that much of the questions centered on their Catholic views on sexual orientation, marriage, and gender dysphoria. In response to these questions, the Burkes emphasized that they would love and accept any child, no matter the child’s future sexual orientation or struggles with gender identity. However, because Mike and Kitty said they would continue to hold to their religious beliefs about gender and human sexuality, Massachusetts denied them a license to foster any child because, as the reviewer put it, “their faith is not supportive and neither are they.”

The law protects religious families and the children they seek to serve

This sad conflict was entirely avoidable. Massachusetts wants to maximize foster families and rightly protect potential foster parents from religious discrimination. Instead, Massachusetts turned its policies into a ban on certain religious beliefs. This is as unconstitutional as it is unnecessary.

Massachusetts has put vulnerable children into hospital rooms and office spaces because it lacks enough loving foster families. Hundreds of children in the state’s foster care system need homes, and religious parents like Mike and Kitty Burke are ready to open their hearts and homes. Massachusetts cannot exclude religious couples like the Burkes from fostering because they are religious, nor can they punish qualified families for their deeply held religious beliefs. If this can happen to the Burkes, it can happen to loving, qualified foster families of diverse faiths across Massachusetts.

Federal law protects the ability of religious people and organizations to foster children in need without having to forfeit their beliefs. Because Massachusetts was unwilling to uphold law including in its own Foster Parent Bill of Rights—Becket is going to court to enforce them.


Importance to Religious Liberty:  

Individual freedom: The government discriminates against religious groups if it prevents them from providing services simply based on their religious beliefs.

Shurtleff v. City of Boston

Permit application to raise a Christian flag denied  

Outside of Boston’s City Hall, three flagpoles stand. The city ordinarily flies the United States flag on one pole, the Commonwealth of Massachusetts flag on another, and the third flagpole’s flag often varies. In order to celebrate Boston’s diversity, the city allows outside, private groups to hold flag-raising ceremonies and display a flag of their choosing on the third pole. These flags can celebrate other countries, cultures and causes.

Between 2005 and 2017, the city approved all 284 flag requests it received. The first denial came in 2017 when Camp Constitution, a religious volunteer organization, asked to raise a flag featuring a red Latin cross to commemorate Constitution Day. Boston decided it would not allow a “religious” flag out of “concern for the so-called separation of church and state.” The message was clear—no religious speech allowed.

Boston’s decision was wrong, but it’s not alone. Government officials have used similar reasoning to exclude religious speech from public spaces and even to deny disaster relief funds to churches and synagogues damaged by hurricanes.

Courts ignore the Constitution

Harold Shurtleff, cofounder of Camp Constitution, sued the City of Boston for its discriminatory permit denial. Applying an outdated interpretation of the Establishment Clause called the Lemon test, the U.S. Court of Appeals for the First Circuit concluded that Boston was correct to censor religious speech. Shurtleff then appealed to the United States Supreme Court. The Court granted review of the case and heard oral argument on January 18, 2022.

Understanding the Establishment Clause

On November 22, 2021, Becket filed a friend-of-the-court brief in the case, pointing out that this mistake happened because Boston’s city officials (and the lower courts) misunderstand the Establishment Clause. Government officials who have an outdated understanding of the Establishment Clause often ban religious elements from the public square simply because they are religious.

This error isn’t limited to Boston. For years, government officials (with approval from lower courts) have been censoring religious expression from the public square in fear of violating the Constitution. Many mistakenly think that exclusion of religion is the safest option. This mistake goes beyond a flagpole—similar reasoning has been used to prohibit religious groups from advertising on trains and buses, exclude religious schools from generally available funding programs, and even deny FEMA aid to churches and synagogues damaged by hurricanes.

The widespread misunderstanding of the Establishment Clause dates back to the 1970s, when courts started to rely on the Lemon test. This legal test is a vague standard that not only ignores history but also has created a mess of Establishment Clause jurisprudence. Becket asked the Supreme Court to formally overrule Lemon so that the hostile censorship against religion in the public square is stopped, once and for all.

During oral argument on January 18, 2022, Justice Kavanaugh cited Becket’s brief and pointed out the failings of the Lemon test.  

On May 2, 2022, the Supreme Court unanimously ruled. Because the City of Boston had a “lack of meaningful involvement in the selection of the flags or the crafting of their messages,” the flag raising was deemed “private, not government, speech.” 

While the Court refrained from disposing of the Lemon test during this decision, Justice Gorsuch said that Lemon came from a “bygone era” and “produced chaos” for the Establishment Clause. He also adopted Becket’s proposal for Lemon’s replacement– a standard rooted in the text, history, and traditions of the Establishment Clause. The next month, in the case Kennedy v. Bremerton School District, the Supreme Court formally announced the end of Lemon.  

 

Caplan v. Town of Acton, Massachusetts

Would France let Notre Dame fall into ruin? Should India let the Taj Mahal crumble or England let Big Ben go into disrepair? ­Of course not. Historic structures enrich cities all over the world as reminders of our diverse and rich history.

The state of Massachusetts understands the importance of preserving historic landmarks. Through its Community Preservation Act, the state makes perseveration funds available to secular and religious structures alike, recognizing that both are significant to the history of the state and should be preserved. Since 2000, more than 8,000 projects have been performed on secular and religious buildings to preserve them for future generations and public use.

Yet a small group of residents in Acton, Massachusetts, are claiming that funds can be made available for all sorts of historic buildings – just not churches. The group claims that allowing churches to participate in this widely available program violates part of the Massachusetts Constitution known as the Anti-Aid Amendment. The Anti-Aid Amendment, like the Blaine Amendments adopted in numerous state constitutions during the 19th and 20th centuries, was adopted during a movement of anti-Catholic bigotry. To this day, state laws like these are used by anti-religion activists in attempts to prohibit state funds to anything remotely religious.

Yet courts have consistently ruled that churches cannot be banned from widely available public benefit programs. In June 2017, the U.S. Supreme Court ruled 7-2 in Trinity Lutheran v. Comer that a state can’t deny church schools from participating in a shredded-tire resurfacing program to make playgrounds safer for kids.

The town of Acton went to court, represented by Anderson & Kreiger LLP. In 2016, two historic churches in Acton were protected. But the small group of residents appealed. In August 2017, Becket filed a friend-of-the-court brief defending the churches’ right to receive preservation funds on equal footing with secular structures. This case was heard in September 2017. In March 2018 the Supreme Judicial Court said that despite Trinity Lutheran, a church’s status as a church is an “important” factor weighing against a grant of preservation funds. The court’s ruling requires Massachusetts communities to discriminate, instructing them to hold churches to a higher standard than secular buildings in determining whether churches qualify to participate in historic preservation programs.

Doe v. Acton-Boxborough Regional School District

For over a decade, the Becket Fund for Religious Liberty has successfully defended the words “one nation under God” in the Pledge of Allegiance.

Why? Because the phrase “under God” answers one of the most important questions any community can ask: Where do our rights come from?

Although it may seem abstract, that question is one of great practical importance in law and politics, because your answer explains how you will treat the rights of others. Kings and emperors throughout history answered the question by claiming that individual rights were theirs to give and theirs to take away. If you offended the emperor, you could be executed on the spot, no matter who you were.

In more recent history, totalitarian systems such as Nazi Germany and the Soviet Union said that they had the ability to take away human rights from “enemies of the State”. They could even reclassify some people as “unpersons” without any rights at all. The State gives, and the State takes away.

But the American tradition—and the English system it descends from—has always been different. In England, titans of legal history like Sir Edward Coke and William Blackstone asserted that no king could take away the rights of an Englishman because those rights did not come from the king: they come, instead, from the laws of nature and nature’s God. That same idea inspired American revolutionaries to defend their rights against the ever-encroaching powers of a tyrannical king.

That’s why it is so important to defend the Pledge of Allegiance. People in power tend to abuse the rights of the very citizens they are supposed to protect. By grounding human rights in a source higher than the State, every American’s rights are secured; those in power are checked and restrained; and we have a justifiable reason to stand up for people who are oppressed by dehumanizing, unjust laws.

Courts across the country agree. Many recognize that the phrase “under God,” instead of acting like a prayer or religious creed, communicates timeless American values:

  • On June 14, 2004, the Supreme Court rejected a challenge to the Pledge, holding that the plaintiff, atheist activist Dr. Michael Newdow, did not have proper standing to challenge the Pledge.
  • On March 11, 2010, a second challenge from Dr. Newdow in California was rebuffed by the federal appeals court for the 9th Circuit, which held “that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism.”
  • On November 12, 2010, a third challenge by Dr. Newdow, this time in New Hampshire, was flatly rejected by the federal appeals court for the 1st Circuit because “both the choice to engage in the recitation of the Pledge and the choice not to do so are entirely voluntary.”
  • On May 9, 2014, Massachusetts’ highest state court unanimously rejected the American Humanist Association’s attack on the Pledge, finding that “the pledge, notwithstanding its reference to God, is a fundamentally patriotic exercise, not a religious one.”
  • And on February 4, 2015, a New Jersey teenager and her family successfully protected the right of all her fellow students to continue reciting the Pledge of Allegiance in its entirety from the American Humanist Association’s latest effort to take “under God” out of the Pledge.

The courts are on right side of history. American history is filled with references to “God,” “Creator,” “Author,” and “Nature’s God;” such references honor America’s values and religious heritage.

Congress first officially adopted the Pledge of Allegiance in 1942, during World War II, to encourage patriotism. In 1951, the Knights of Columbus, a Catholic fraternal organization, first began the practice of saying “one nation under God” as a part of the Pledge. They encouraged many others including Congress to follow the same practice. In 1954, Congress passed and President Eisenhower signed an amendment adding the words “under God” to the Pledge.

One of Congress’s reasons for adding “under God” to the Pledge was to explain America’s disagreement with the Soviet Union about the nature of human rights. The Soviets claimed that people receive their rights from the State, and therefore the State can take those rights away.

In contrast, Congress said it was using the phrase “under God” to make clear that basic human rights are beyond the reach of the State.

In so doing, it was following a centuries-old tradition:

  1. Washington’s General Orders to his troops (July 2, 1776): “The fate of unborn Millions will now depend, under God, on the Courage and Conduct of this army.
  2. The Declaration of Independence (July 4, 1776): “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
  3. Lincoln’s Gettysburg Address (November 19, 1863): “this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

To avoid saying the “offensive” word “God,” as the secularists attacking the Pledge want, teachers would have to remain silent about the values embraced by the American Revolutionaries, the Constitution, abolitionism, and the civil rights movement.

References to “God,” which remind every American that their rights cannot be seized by the State, are the cherished legacy of a free society; each reminds future generations that their rights come not from the State, but a Source beyond the State’s control.

As President Dwight D. Eisenhower said when signing the amendment adding “under God” to the Pledge on Flag Day, June 14, 1954:

“[The words under God] will help us to keep constantly in our minds and hearts the spiritual and moral principles which alone give dignity to man, and upon which our way of life is founded.”

McCullen v. Coakley

Meet Eleanor McCullen, who ministers to women in crisis

Since 2000, Eleanor McCullen has knitted baby hats and lovingly counseled women outside of abortion clinics near her home in Massachusetts. Driven by her faith, Eleanor aspires to see mothers become parents and to see families flourish by supporting an expectant mother’s decision to say yes to life. As a sidewalk counselor, Eleanor ensures struggling women she meets outside the clinic do not feel alone in their journey, and that, while it may not seem like it, they have a choice. She also directs expectant mothers to important resources such as housing, medical care, sonograms, and food supplies. She even hosts baby showers.

But starting in 2000, the State of Massachusetts passed a series of laws that threatened free speech—and Eleanor’s ability to give women the support they willingly accepted.

Massachusetts “buffer zone” restricts free speech

By 2007, Massachusetts had imposed a 35-foot buffer zone around every abortion clinic in the state. The law made it illegal for Eleanor to have conversations with women who wanted her help on the sidewalks in front of abortion clinics.  Instead, Eleanor was forced off the sidewalk, away from the clinic, and at times into the streets

The buffer zone not only restricted Eleanor’s freedom of speech, but also religious freedom. Eleanor is motivated by her faith to help women in need. A Catholic priest, who joined Eleanor in her lawsuit, wanted to provide religious counseling to women in need.  Another individual simply wanted to stand silently on the sidewalk and pray. Yet the Massachusetts’s law banned all of these peaceful activities. By stopping religious people from offering help to women in need, the law also harmed countless women by depriving them peaceful and often welcomed offers of help.  [There is a heartbreaking brief by women who WISH they’d had such help outside of abortion clinics.

In January 2008, Becket President Mark Rienzi co-counsel Michael DePrimo, and lawyers from Alliance Defending Freedom represented Eleanor in federal court. The court ruled against Eleanor in August 2008. In July 2009, Eleanor lost again on appeal at the U.S. Circuit Court of Appeals for the First Circuit. She appealed to the U.S. Supreme Court, which agreed to hear the case.

Supreme Court ruling protects free speech and religious liberty 

Central to the First Amendment is the right to a free and peaceful exchange of ideas, which requires an individual’s ability to have personal conversations and distribute literature in public places. Under the new law it would have been a crime punishable with jail time if Eleanor so much as uttered, “Good morning, Jesus loves you,” to a passerby.

In January 2014, Becket President Mark Rienzi argued the case before the Supreme Court. On June 26, 2014, the Supreme Court ruled unanimously that the Massachusetts buffer zone law violated the First Amendment because it overly interfered with people’s rights to converse and interact with others.


Importance to religious liberty

  • Free speech: Free speech includes the right to a free and peaceful exchange of ideas with others—including religious ideas. Freedom of speech and religious liberty go hand-in-hand; protecting one protects the other.
  • Individual freedom: Religious freedom includes the freedom to practice one’s faith in all areas of life, both public and private, free of government interference.

Guzzi v. Thompson

Rosario Guzzi is a prison inmate in Massachusetts who requested kosher meals based upon his “Orthodox Catholic” beliefs. The state denied his request and when he sued, the federal district court upheld the denial based on the judge’s declaration that the tenets of Catholicism do not require believers to keep kosher.

Representing himself, Guzzi appealed to the First Circuit Court of Appeals in Boston. That Court, presumably concerned about the district court’s decision to interpret and apply the content of Catholic doctrine, invited Eric Rassbach, the Becket Fund’s National Litigation Director, to brief and argue the case as a friend of the court in support of neither party. Rassbach told the court that, “governments should not be deciding whether a religious belief is orthodox.” The Becket Fund further argued that such out-of-the-ordinary requests must be judged by the inmate’s sincerity and truthfulness (a factual test common in many areas of law), not by a state-created list detailing which religious practices belong to which religion. Otherwise the state would back into the role of deciding what religious beliefs are allowed and which are not, a censorship role that would harm all religious believers. Rassbach suggested that the district court should first have decided whether Guzzi was really telling the truth about what he believed or was simply trying to provoke the prison administration with an insincere claim.

After oral argument but before the First Circuit issued its decision, Massachusetts tried to end the case prematurely by suddenly ordering a kosher diet for Guzzi. This would have left in place the district court’s decision giving Massachusetts a right to define orthodoxy in religion. The Becket Fund immediately asked the First Circuit to vacate the lower court’s decision, getting rid of the district court’s “theology police” opinion. The First Circuit ruled in favor of the Becket Fund.

It was a victory for all who believe that government officials should not be in the business of theological interpretation.

Boyette v. Galvin

Schoolchildren and parents in Massachusetts sought government funding for parochial education by amending a provision of the Massachusetts Constitution — known as the”Anti-Aid Amendment — that bars any public financial support for private primary or secondary schools.

They sought to amend this provision through a voters’ initiative, but the state Constitution explicitly prohibits initiatives to amend the Anti-Aid Amendment, as well as initiatives that concern “religion, religious practices or religious institutions.”

Becket challenged the two provisions prohibiting voters’ initiatives, arguing that they violate the Free Speech, Free Exercise, Equal Protection, Right to Petition, and Establishment Clause provisions of the federal Constitution.

In 2004 the court ruled against us. The Supreme Court declined to hear the case.

The Pledge of Allegiance Cases

For over a decade, Becket has successfully defended the words “one nation under God” in the Pledge of Allegiance.

Why? Because the phrase “under God” answers one of the most important questions any community can ask: Where do our rights come from?

Although it may seem abstract, that question is one of great practical importance in law and politics, because your answer explains how you will treat the rights of others. Kings and emperors throughout history answered the question by claiming that individual rights were theirs to give and theirs to take away. If you offended the emperor, you could be executed on the spot, no matter who you were.

In more recent history, totalitarian systems such as Nazi Germany and the Soviet Union said that they had the ability to take away human rights from “enemies of the State”. They could even reclassify some people as “unpersons” without any rights at all. The State gives, and the State takes away.

But the American tradition—and the English system it descends from—has always been different. In England, titans of legal history like Sir Edward Coke and William Blackstone asserted that no king could take away the rights of an Englishman because those rights did not come from the king: they come, instead, from the laws of nature and nature’s God. That same idea inspired American revolutionaries to defend their rights against the ever-encroaching powers of a tyrannical king.

That’s why it is so important to defend the Pledge of Allegiance. People in power tend to abuse the rights of the very citizens they are supposed to protect. By grounding human rights in a source higher than the State, every American’s rights are secured; those in power are checked and restrained; and we have a justifiable reason to stand up for people who are oppressed by dehumanizing, unjust laws.

Courts across the country agree. Many recognize that the phrase “under God,” instead of acting like a prayer or religious creed, communicates timeless American values:

  • On June 14, 2004, the Supreme Court rejected a challenge to the Pledge, holding that the plaintiff, atheist activist Dr. Michael Newdow, did not have proper standing to challenge the Pledge.
  • On March 11, 2010, a second challenge from Dr. Newdow in California was rebuffed by the federal appeals court for the 9th Circuit, which held “that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism.”
  • On November 12, 2010, a third challenge by Dr. Newdow, this time in New Hampshire, was flatly rejected by the federal appeals court for the 1st Circuit because “both the choice to engage in the recitation of the Pledge and the choice not to do so are entirely voluntary.”
  • On May 9, 2014, Massachusetts’ highest state court unanimously rejected the American Humanist Association’s attack on the Pledge, finding that “the pledge, notwithstanding its reference to God, is a fundamentally patriotic exercise, not a religious one.”
  • And on February 4, 2015, a New Jersey teenager and her family successfully protected the right of all her fellow students to continue reciting the Pledge of Allegiance in its entirety from the American Humanist Association’s latest effort to take “under God” out of the Pledge.

The courts are on right side of history. American history is filled with references to “God,” “Creator,” “Author,” and “Nature’s God;” such references honor America’s values and religious heritage.

Congress first officially adopted the Pledge of Allegiance in 1942, during World War II, to encourage patriotism. In 1951, the Knights of Columbus, a Catholic fraternal organization, first began the practice of saying “one nation under God” as a part of the Pledge. They encouraged many others including Congress to follow the same practice. In 1954, Congress passed and President Eisenhower signed an amendment adding the words “under God” to the Pledge.

One of Congress’s reasons for adding “under God” to the Pledge was to explain America’s disagreement with the Soviet Union about the nature of human rights. The Soviets claimed that people receive their rights from the State, and therefore the State can take those rights away.

In contrast, Congress said it was using the phrase “under God” to make clear that basic human rights are beyond the reach of the State.

In so doing, it was following a centuries-old tradition:

  1. Washington’s General Orders to his troops (July 2, 1776): “The fate of unborn Millions will now depend, under God, on the Courage and Conduct of this army.
  2. The Declaration of Independence (July 4, 1776): “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
  3. Lincoln’s Gettysburg Address (November 19, 1863): “this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

To avoid saying the “offensive” word “God,” as the secularists attacking the Pledge want, teachers would have to remain silent about the values embraced by the American Revolutionaries, the Constitution, abolitionism, and the civil rights movement.

References to “God,” which remind every American that their rights cannot be seized by the State, are the cherished legacy of a free society; each reminds future generations that their rights come not from the State, but a Source beyond the State’s control.

As President Dwight D. Eisenhower said when signing the amendment adding “under God” to the Pledge on Flag Day, June 14, 1954:

“[The words under God] will help us to keep constantly in our minds and hearts the spiritual and moral principles which alone give dignity to man, and upon which our way of life is founded.”

***

For more information, or to arrange an interview with one of the attorneys, please contact Melinda Skea, Communications Director, at mskea@becketfund.org or call 202.349.7224.