In Burke v. Walsh, (D MA, June 5, 2024), a Massachusetts federal district court refused to dismiss free exercise and free speech claims brought against Massachusetts Department of Children and Families personnel in their official capacities. Plaintiffs, a Catholic couple, were denied licensure for foster care and adoption because they did not demonstrate the ability to support the well-being of an LGBTQIA+ child that might be placed with them. The court said in part:
The court concludes it was clearly established, in 2023, that DCF's individualized and discretionary assessment of Plaintiffs' foster license application was not a "generally applicable" policy and thus was subject to strict scrutiny. Under the governing regulations, DCF considers 17 different subjective criteria, all of which must be demonstrated "to the satisfaction of the Department," when deciding on a foster license application. 110 C.M.R. § 7.104(1). One of these requirements, upon which Defendants relied in denying Plaintiffs' application, is "to promote the physical, mental, and emotional well-being of a child placed in his or her care, including supporting and respecting a child's sexual orientation or gender identity."...
... [T]he court need not decide, at this stage, whether it was also clearly established that Defendants' conduct would not withstand strict scrutiny analysis under these circumstances.
