The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Massachusetts high court held today, in Magazu v. Dep't of Children & Families, that the state may refuse to place foster children with parents who occasionally spank their own children. This is so even if the parents promise to spank their children outside the foster children's presence (because they already administer spankings only in private, without their other child watching).
The parents argued that this violated their religious freedom rights. The Massachusetts high court has interpreted the Massachusetts Constitution as presumptively requiring the government to exempt sincere religious objectors from generally applicable laws, unless denying the exemption is necessary to serve a compelling government interest. (This is similar to the test the U.S. Supreme Court used under the Free Exercise Clause from 1963 to 1990, and to the test instituted as to federal laws and the laws in many states by Religious Freedom Restoration Acts.) But the court concluded that here this so-called "strict scrutiny" test was satisfied, and the plaintiffs could be barred from being foster parents. From the court's opinion:
[1.] [Gregory and Melanie Magazu] are a married couple whose lives are guided by their deeply held Christian beliefs. They have two young daughters. In September, 2012, the Magazus filed an application with the [Massachusetts Department of Children and Families] for a "family resource license" that would enable them to become foster and preadoptive parents. [Footnote: It was the Magazus' intention to eventually adopt one or more of the foster children placed in their care. Consequently, from the beginning of the application process, the department assessed the Magazus as a permanent placement.] …
[T]he department asked the Magazus about their personal histories as well as their parenting experiences and attitudes, including methods of discipline. In response to the department's questions, the Magazus stated that they "have used physical discipline on their daughters," and that such discipline is "appropriate when there is a continuous pattern of disobedience." More specifically, they explained that their parenting style includes "spanking on the buttocks, using Greg or Melanie's hand, in the privacy of their bed room so that [the children] are not humiliated in front of others."
The Magazus "feel [that physical discipline] is a small part of their parenting style, and only used when necessary." They acknowledged their understanding of the department's policy against corporal punishment, and expressed a willingness to refrain from using physical discipline on a foster child placed in their home. Because they discipline their own two daughters in private, the Magazus are of the view that a foster child would not actually witness any corporal punishment….
By decision dated February 7, 2013, the department notified the Magazus that their application had been denied because of their use of corporal punishment, and their expressed belief that such punishment "is an appropriate and effective means of discipline for [their] children." … [At an appeals hearing, the department] hearing officer concluded … that the department expressly prohibits the use of corporal punishment on foster children, and that the department's "clinical practice" prohibits exposing foster children to the use of corporal punishment on other children in a household.
The hearing officer highlighted the Magazus' inability "to recognize that the employment of physical punishment [on] any child in their home could lead to serious emotional consequences for the [d]epartment[']s children." She pointed out that children placed by the department have been exposed to an array of neglect and abuse, and their awareness of acts of corporal punishment in their foster homes "could well trigger the very trauma the placement was intended to mitigate." The hearing officer stated that the department could not simply place with the Magazus a child who had not been physically abused because foster children often do not disclose the full extent of their experiences until after being placed in substitute care. Moreover, she continued, the Magazus' willingness to refrain from using corporal punishment on a foster child did not alleviate the department's concerns regarding the discipline of such child postadoption, when the child would no longer be under the purview of the department.
The hearing officer found that the Magazus are "people of deep faith," but she stated that there was no evidence to support their assertion that the denial of their application was due to their Christian beliefs. Recognizing that the Magazus have "a sincere desire to offer permanency to children in need," the hearing officer said that, even though the Magazus could not provide foster care for children placed by the department, they were free to pursue adoption through another agency that might be more compatible with their values….
[Footnote: We note that in the context of criminal proceedings charging a father with assault and battery for spanking his minor child, we recently held that "a parent or guardian may not be subjected to criminal liability for the use of force against a minor child under the care and supervision of the parent or guardian, provided that (1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress." This holding was based, in part, on an awareness that "a privilege to use reasonable force in disciplining a minor child has long been recognized at common law."]
[Footnote moved:] We note that foster parents are "temporary contract service providers with a defined set of rights and responsibilities that clearly differs from those of a child's parents." …
[2.] Although 110 Code Mass. Regs. § 7.111(3) explicitly forbids the use of corporal punishment on a foster child, we agree with the Magazus that the department's policy and practice of not placing a foster child in a home where parents administer physical discipline to their own children is not similarly articulated in express terms. Nonetheless, we conclude that such a policy falls squarely within the parameters of the department's enabling legislation and companion regulations, and is rationally related to the department's objectives in the placement of foster children. As such, the department's decision to deny the Magazus' application to become foster parents did not exceed the department's authority, is not arbitrary or capricious, and is supported by substantial evidence….
[3.] The Magazus assert that, in accordance with their sincerely held Christian beliefs, they use appropriate corporal punishment on their own two daughters as a matter of loving parenting and biblical understanding….
Article 46, § 1, of the Amendments [to the Massachusetts Constitution] provides, "No law shall be passed prohibiting the free exercise of religion," and parallels the First Amendment to the United States Constitution, which states, "Congress shall make no law … prohibiting the free exercise [of religion]…." Notwithstanding the similarity between these two constitutional provisions, "the scope of protection afforded the right to freely exercise one's religion under the Massachusetts Constitution is greater than that afforded by the United States Constitution." We assess a claim that the Commonwealth has impermissibly burdened the free exercise of religion in violation of art. 46, § 1, of the Amendments by using the balancing test articulated in [Attorney Gen. v. Desilets, 418 Mass. 316 (1994), rather than the federal Free Exercise test articulated in Employment Division v. Smith (1990) -EV].
This balancing test requires that we determine whether the State action about which a party has complained (here, a prohibition on the use of corporal punishment in a foster home) "substantially burdens [the] free exercise of religion, and, if it does, whether the Commonwealth has shown that it has an interest sufficiently compelling to justify that burden." More specifically, the party claiming an unconstitutional burden on the free exercise of religion "must show (1) a sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the [S]tate requirement. Once the claimant has made that showing, the burden shifts to the [S]tate. The [S]tate can prevail only by demonstrating both that (3) the requirement pursues an unusually important governmental goal, and that (4) an exemption would substantially hinder the fulfillment of the goal."
As an initial matter, the Magazus suggest that the department, through its regulations and policies, has impermissibly infringed on the Magazus' religious beliefs, not their conduct…. "Religious beliefs—what a person thinks, what faith he holds in his heart and mind—are indeed protected absolutely" from governmental interference. "Conduct in furtherance of those beliefs, however, is the 'exercise' of religion, and government infringements on religiously inspired conduct are permissible if they satisfy the compelling State interest balancing test."
Contrary to the Magazus' suggestion, this case is not about their freedom to believe particular religious tenets, including those pertaining to the raising and disciplining of children. Rather, these proceedings are about specific conduct—corporal punishment—that is and would continue to be used in the Magazus' home even if they became foster parents. To the extent that the department may have infringed on the Magazus' constitutional rights, such infringement is on their freedom to act, not on their freedom to believe. We turn now to consideration of the balancing test articulated in Desilets.
[4.] The department has not challenged the Magazus' contention that their use of corporal punishment is based on their sincerely held religious beliefs. Therefore, in order to succeed on their claim, the Magazus must establish that the department's prohibition against the use of corporal punishment in a foster home constitutes a "substantial burden" on their exercise of those beliefs. "[A] 'substantial burden' is one that is coercive or compulsory in nature." "[I]ncidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, [do not] require government to bring forward a compelling justification for its otherwise lawful actions.
Here, because the department's prohibition against the use of corporal punishment in a foster home is inherently incompatible with the Magazus' religious beliefs, the Magazus are compelled to make a choice. On the one hand, they can adhere to the teachings of their religion and use corporal punishment as a form of discipline in their home, thereby forfeiting the opportunity to become foster parents. On the other hand, they can abandon this particular religious tenet in the hope of being approved as foster parents.
We conclude that, by conditioning the Magazus' opportunity to become foster parents on their willingness to forsake a sincerely held religious belief, the department has substantially burdened the Magazus' constitutional right under art. 46, § 1, of the Amendments to the free exercise of religion. That being the case, we proceed to consider whether the department has demonstrated a sufficiently compelling interest to justify this burden.
[5.] "It cannot be disputed that the State has a compelling interest to protect children from actual or potential harm." This is especially true with respect to foster children whose need for safety, security, and stability is readily apparent. Consistent with this compelling State interest, the department has determined that a foster child should not be placed in a home where corporal punishment is used as a disciplinary measure.
Creating an exception to this policy for individuals like the Magazus who employ physical discipline in conformity with their religious beliefs would severely undermine the department's substantial interest in protecting the physical and emotional well-being of children whose welfare has been entrusted to the department's care. Moreover, expecting the department to place with the Magazus children who have not suffered neglect or abuse is neither realistic nor feasible given the type of children served by the department and the potential dearth of information concerning the precise nature and scope of their prior trauma.
Based on the department's compelling interest in protecting the welfare of foster children, we conclude that its prohibition against the use of corporal punishment in a foster home outweighs the burden on the Magazus' right to employ physical discipline in accordance with their religious beliefs.
Three of the seven Justices (Justice Cordy, joined by Justices Botsford and Duffly) concurred in a separate opinion, while joining the majority opinion. Here is an excerpt from their concurrence:
[I]n every respect (but for one) [plaintiffs] were ideal foster and preadoptive candidates. They had a very stable home environment, a nurturing supportive relationship with their own two children, and an excellent record of employment and community involvement. The department's file reveals that it conducted an indepth and thorough inquiry into and review of the plaintiffs' personal and family experiences and upbringing, as well as their home life. The plaintiffs cooperated fully and candidly in detailing their experiences, their reasons for wanting to serve as foster parents, and the relationship with their two children.
In the end, the only flaw latched onto by the department was the plaintiffs' explanation that their deeply held Christian religious beliefs included the use of physical discipline (albeit sparingly applied) in the upbringing of their children. This honest revelation led to further intense inquiry as to whether such punishment would be used on children placed into their care by the department, which would be contrary to its explicit regulation against the use of such discipline on foster children. The plaintiffs advised the department that they fully understood this limitation and would comply with the regulation and the required written contract provisions that would govern their relationship.
The department conceded that there was no reason for the department to doubt the sincerity of the plaintiffs, but wanted additional assurances (beyond what was required in its regulations and its contract) that the plaintiffs would not physically discipline their own children during periods when they had foster children in their care. The plaintiffs could not agree to this condition because of their religious views, but advised that they did not physically discipline either of their children in the presence of the other and would not do so in the presence of the foster children in their care. This apparently was not good enough, and the department found that the plaintiffs did not meet the department's licensing standards because they physically disciplined their own children.
While the department's position might, when balanced against all of the positives the plaintiffs possessed, seem overly rigid and cautious in the extreme, the department's responsibility to children already exposed to abuse or neglect is very substantial. That heightened responsibility could justify the department's declining a family setting in which such a child might feel insecure or unsafe or traumatized if they become aware that physical discipline was being meted out to other children.
One is left to wonder, however, whether the real problem in this case was not so much the department's concern for child safety, but rather a disagreement with the plaintiff's beliefs regarding the upbringing of their children. While we have no other licensing investigation files in the record before us, it is hard to ignore the highly public tragedies of the last two years regarding children under the supervision of the department in foster homes, and not to question whether the high standards and intensive assessment and scrutiny applied to the plaintiffs is the exception rather than the norm, particularly in the western region.
Fuel for this concern comes most recently in an official investigative report of the death and near death of two foster children placed in the foster home of a woman, also located in the western region. The death and injury were due to severe neglect. The investigative report of the case is revealing in many respects, but most particularly in its description of the licensing investigation, and its inadequacies, that led to the licensure of the woman as a foster parent shortly after the plaintiffs' application was denied.
According to the report, the applicant was an unmarried woman with medical issues, who was supported by Supplemental Security Income disability payments, and who had two children who no longer had contact with their father, as well as an adopted third child. At least one of these children also had serious medical issues, and during the licensing investigation the doctor for the woman's children advised that she was already overwhelmed by managing her own children's medical needs.
In addition, … reports of abuse and neglect had been filed against her; the school attended by one of her children reported that the child was chronically absent, and was out of control; and it was known that there was a family history of neglect. Further, the licensing investigation did not include a routine check with the local police, which would have revealed that the police had been called at least twenty-five times in response to problems at her home. Regardless, the woman was licensed by the department, and at the time of the tragedy, she had three children assigned to her care by the department (in addition to her other three children)."