In this case,
the Massachusetts Supreme Court upheld the constitutionality of
that state’s law requiring religious matching.
Like many other states in the country, Massachusetts stipulated
that “in making orders for adoption, the judge when practicable
must give custody only to persons of the same religious faith as
that of the child.” The circumstances of this case involved
a Jewish couple, the Goldmans, who had adopted twins born to Catholic
parents. The children were placed in the Goldmans' home as infants
and the Goldmans appealed when a lower court denied their adoption
petition. Cases like this one, in which the written consent of the
birth mother had been obtained, prompted the Catholic Church to
modify its earlier position that parental rights to determine children’s
religion were absolute. In the 1950s, the church intervened in a
number of cases to oppose birth
parents who freely chose to ignore the matching mandate and
place their children across religious lines. It is also notable
in this case that religious difference was linked explicitly to
differences in skin and hair color between the twins and their Jewish
adopters, suggesting an enduring link between religious and racial
identities and between transreligious and
transracial adoptions.
The petitioners, husband and wife, seek to adopt twin children,
boy and girl, born at a hospital September 30, 1951. The cases were
heard upon oral evidence and also upon reports filed by the department
of public welfare. . . . The judge made findings
of fact, concluding that it would not be for the best interests
of the twins to decree adoptions in these cases, and dismissed the
petitions. The petitioners appeal. The evidence is reported.
General Laws (Ter. Ed.) C. 210, §5B, inserted by St. 1950,
c. 737, §3, is as follows: “In making orders for adoption,
the judge when practicable must give custody only to persons of
the same religious faith as that of the child. In the event that
there is a dispute as to the religion of said child, its religion
shall be deemed to be that of its mother. If the court, with due
regard for the religion of the child, shall nevertheless grant the
petition for adoption of a child proffered by a person or persons
of a religious faith or persuasion other than that of the child,
the court shall state the facts which impelled it to make such a
disposition and such statement shall be made part of the minutes
of the proceedings.” . . .
The petitioners obtained the children when they were about two
weeks old from the hospital where they were born and have had them
ever since. All of the evidence bearing on the ability of the petitioners
to care for the twins, including that contained in the reports mentioned
above, tended to show that the petitioners have a good home and
sufficient means, are fond of the twins, and are giving them adequate
care. The judge found that the petitioners are well equipped financially
and physically to bring up the twins, and that they have treated
them as their own children and intend to care for them and educate
them to the best of their ability. The judge further found that
the mother and “the natural father” of the twins are
Catholics. There was ample evidence to support this finding. The
mother did not cease to be a Catholic, even if she failed to live
up to the ideal of her religion. If that were the test of belonging
to a religious faith it is feared that few could qualify for any
faith. The petitioners are of the Jewish faith and intend to bring
up the twins in that faith. The mother consented in writing on both
petitions to the adoptions prayed for. She has never seen or spoken
to the petitioners, but she has stated that she knew they were Jewish
and was satisfied that the twins should be raised in the Jewish
faith. The petitioners were informed by their attorney before they
took the twins of the law relative to religion in adoptions, but
they decided to take a chance that the petitions would be allowed.
The petitioners have dark complexions and dark hair. The twins are
blond, with large blue eyes and flaxen hair. . . .
The judge also found that “there are in and about the city
of Lynn [which is near the residence of the petitioners] many Catholic
couples of fine family line and excellent reputation who have filed
applications with the Catholic Charities Bureau for the purpose
of adopting Catholic children of the type of the twins, and are
able to provide the twins with a material status equivalent to or
better than that of the petitioners, and with whom the twins would
be placed immediately.” This finding was in effect a finding
that it was “practicable,” within the meaning of that
word in §5B, to “give custody only to persons”
of the Catholic faith. . . .
Some argument is advanced that there was here no “dispute”
as to the religion of the twins and from that it is apparently sought
to draw the conclusion that the religion of the mother should be
disregarded. It would seem that there is a “dispute,”
since the guardian ad litem, as the representative of the children,
contends that their religion is Catholic, while the petitioners
at one stage in their argument seem to contend that it is not. But
even if there is no “dispute” we think that for purposes
of §5B these twins, too young to choose a religion for themselves,
must be deemed to belong to the Catholic faith for reasons hereinafter
stated. . . .
It is contended that §5B is unconstitutional as a law “respecting
the establishment of religion, or prohibiting the free exercise
thereof,” contrary to the First Amendment to the Constitution
of the United States, and as in some manner contrary to art. 2 of
our Declaration of Rights and to art. 11 and art. 46, §1, of
the Amendments to the Constitution of this Commonwealth. With this
we cannot agree. All religions are treated alike. There is no “subordination”
of one sect to another. No burden is placed upon anyone for maintenance
of any religion. No exercise of religion is required, prevented,
or hampered. It is argued that there is interference with the mother’s
right to determine the religion of her offspring, and that in these
cases she has determined it shall be Jewish. Passing the point that
so far as concerns religion she seems to have consented rather than
commanded and seems to have been “interested only that the
babies were in a good home,” there is clearly no interference
with any wish of hers as long as she retains her status as a parent.
It is only on the assumption that she is to lose that status that
§5B becomes operative. The moment an adoption is completed
all control by the mother comes to an end. . . .
The principle that children should, in general, be adopted within
the faith of their natural parents has received widespread approval,
as is attested not only by such decisions as Purinton v. Jamrock
but also by the fact that most of the States now have statutes more
or less similar to §5B. . . . We are not prepared
to hold either such decisions or the statute unconstitutional.
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