Petition of Goldman, 1954

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.


Source: 331 Mass. 648-653.

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