No Catholics Need Adopt

Once again, Samuel Alito saw it coming. Recent events in Massachusetts—where a Catholic couple was deemed unfit for a foster-care license because their beliefs are insufficiently progressive—have borne out his warnings.

The Massachusetts Department of Children and Families’s decision to deny Michael and Kitty Burke’s foster-care application comes less than a decade after the Supreme Court’s 2015 ruling in Obergefell v. Hodges, which held that states could not deny marriage licenses to same-sex couples. In a short but tart dissent, Justice Alito raised a red flag that Justice Anthony Kennedy, author of the majority opinion, glided over in his enthusiasm for making his own preferences law. Whatever this decision was, Justice Alito warned, Obergefell was not a victory for a live-and-let-live America.

“It will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” he wrote. “In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. . . . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

The Burkes are a loving couple who sought to adopt through the state’s foster-care program. Mr. Burke deployed to Iraq as a Marine, while Mrs. Burke is a former paraprofessional for kids with special needs. The stars seemed aligned for a fairy-tale ending for some lucky child.

The Burkes were willing to accept children of any race, culture or ethnicity, as well as some special needs. They would even take siblings. The state, in its assessment of the Burkes, acknowledged the family’s “strengths.” In the license study describing the family, the Massachusetts DCF noted that “Kitty and Mike are devoutly Roman Catholic and not only attend church with regular frequency, they both also work for local churches as musicians.”

Once upon a time that would be an endorsement. Today it’s an indictment. The Burkes were found unfit to be trusted with a child.

The author of their license study took care to note that the Burkes are “lovely people.” But with regard to LGBT issues, she also said “their faith is not supportive and neither are they.” Ultimately the license review team concluded the Burkes “would not be affirming to a child who identified as LGBTQIA” and the Burkes were rejected.

The Burkes have filed a lawsuit in federal court, claiming that their First Amendment rights to free exercise of religion have been violated. William P. Mumma is chairman of Becket Law, which defends religious liberty and is representing the Burkes. Like Justice Alito, he understands that the new orthodoxy on sex and marriage has its own dogmas, high priests and enforcers. Thus do ordinary Americans find themselves likened to terrorists by everyone from their local school boards to the FBI, which recently targeted Catholics who attend traditional Latin Mass.

“When government takes over a space formerly held by intermediating institutions or citizens acting through the democratic process, they promise dispassionate expertise, neutrality and justice,” Mr. Mumma says. “But what they deliver is a replacement ideology and a big stick to enforce adherence.”

The good news is that Burkes have a strong case, and Becket Law has an excellent record of prevailing in their cases.

“I assume that the Burkes will win their case but the chilling effect wouldn’t be fully mitigated by their victory,” says David Rivkin, a constitutional lawyer who has served in the Justice Department and White House Counsel’s Office. “This is what is so bad about these policies.”

There’s a lesson here for the culture war. Following the overturning of Roe v. Wade, the pro-life effort to ban abortion hasn’t gone well, and no one is even trying to turn back the clock on same-sex marriage. The question now is whether contentious issues will be resolved through the democratic process, so that the losers will still be able to live their own lives and run their own institutions according to their beliefs. Unfortunately, the push to cancel views, especially religion-based ones, suggests intolerance is a feature of the new orthodoxy and not a bug.

How different the landscape today is from what Justice Kennedy so glibly promised in Obergefell. In what was almost an afterthought, he did allow that many who opposed same-sex marriage did so based on “decent and honorable” premises, and that their First Amendment rights still stand.

“I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes,” Justice Alito answered, “but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

When Obergefell was decided, skeptics were repeatedly asked: What could it possibly matter to you if the Supreme Court allows people of the same sex to get married?

Ask Mike and Kitty Burke.

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