NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-11864

GREGORY T. MAGAZU & another1 vs. DEPARTMENT OF CHILDREN AND 

FAMILIES.

Worcester. September 10, 2015. - January 4, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Department of Children & Families. Adoption, Foster parents.

Constitutional Law, Freedom of religion. Religion.

Administrative Law, Substantial evidence.

Civil action commenced in the Superior Court Department on 

July 25, 2013.

The case was heard by Brian A. Davis, J., on a motion for 

judgment on the pleadings.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

David P. Bodanza (Amanda M. Mastalerz with him) for the 

plaintiffs.

Annapurna Balakrishna, Assistant Attorney General, for the 

defendant.

 

1 Melanie A. Magazu.
2

SPINA, J. Gregory T. Magazu and his wife, Melanie, appeal 

from a judgment of the Superior Court that dismissed their 

appeal from a final decision of the Department of Children and 

Families (department) denying their application to become foster 

and preadoptive parents because of their use of corporal 

punishment as a form of discipline in their home. The Magazus 

argue that the department's decision is inconsistent with its 

regulations, is arbitrary and capricious, and is not supported 

by substantial evidence where they were willing to agree not to 

use corporal punishment on a foster child. They also contend 

that, because physical discipline is an integral aspect of their 

Christian faith, the department's decision impermissibly 

infringes on their constitutional right to the free exercise of 

religion. We transferred the case to this court on our own 

motion. For the reasons that follow, we conclude that the 

department's decision to deny the Magazus' application is based 

on a reasonable interpretation of its enabling legislation and 

related regulations, is not arbitrary or capricious, and is 

supported by substantial evidence. We also conclude that 

although the department's decision imposes a substantial burden 

on the Magazus' sincerely held religious beliefs, this burden is 

outweighed by the department's compelling interest in protecting 

the physical and emotional well-being of foster children. 

Accordingly, we affirm the judgment of the Superior Court.
3

1. Statutory and regulatory framework. We begin with an 

overview of the relevant statutory and regulatory provisions 

that govern the foster care proceedings in this case. The 

Legislature has vested the department with the authority to 

provide substitute care for children when "the family itself or 

the resources available to the family are unable to provide the 

necessary care and protection to insure the rights of any child 

to sound health and normal physical, mental, spiritual and moral 

development." G. L. c. 119, § 1. See Blixt v. Blixt, 437 Mass. 

649, 663 (2002), cert. denied, 537 U.S. 1189 (2003) (State has 

compelling interest in keeping children safe from physical or 

emotional trauma that may scar them well into adulthood). In 

providing such care, "[t]he health and safety of the child shall 

be of paramount concern and shall include the long-term wellbeing of the child." G. L. c. 119, § 1. The department shall 

define the "best interests of the child" as including, among 

other considerations, "the effectiveness, suitability and 

adequacy of . . . placement decisions." Id.

In accordance with its authority, the department has 

promulgated regulations concerning eligibility requirements and 

standards of licensure for a foster or preadoptive parent. See 

110 Code Mass. Regs. §§ 7.100, 7.104 (2009). See also G. L. 

c. 119, § 37 ("The department shall make rules and regulations 

concerning the administration of its duties"). The department 
4

is required to evaluate an applicant's home and all members of 

the household. See 102 Code Mass. Regs. § 5.10(5) (1998). The 

assessment shall be completed by a social worker who has met 

specified qualifications, see 102 Code Mass. Regs. §§ 5.05(2), 

5.10(11)-(12) (1998), and must document, among other things, 

"parenting ability, including child rearing and discipline." 

102 Code Mass. Regs. § 5.10(5)(d)(6). An applicant must 

demonstrate, to the satisfaction of the department, numerous 

attributes, including "the ability: (a) to assure that a child 

placed in his or her care will experience a safe, supportive, 

nurturing and stable family environment which is free from abuse 

or neglect; . . . (d) to promote the physical, mental, and 

emotional well-being of a child placed in his or her care . . .

; and (q) to assume and carry out all other responsibilities of 

a foster/pre-adoptive parent as detailed in the standard written 

agreement between the [d]epartment and foster/pre-adoptive 

parents." 110 Code Mass. Regs. § 7.104(1).

Within ten working days after the completion of its 

comprehensive assessment, the department shall decide whether to 

license the applicant, see 110 Code Mass. Regs. § 7.107(5) 

(2009), and within ten working days thereafter shall provide 

written notice of its decision to the applicant. See id. at 

§ 7.107(6). In those cases where the department decides not to 

license the applicant, the written notice must include the 
5

reasons for such decision, as well as information about the 

applicant's right to appeal the determination. See id. at 

§ 7.107(6)(b). The regulations provide that once an applicant 

has been licensed as a foster parent and has completed the 

requisite parent training, the department and the foster parent 

shall enter into a written agreement that will govern the foster 

care arrangement. See 102 Code Mass. Regs. § 5.10(7)(a); 110 

Code Mass. Regs. § 7.111 (2009). The agreement "shall be 

renewed annually, and shall include at least the following 

terms: . . . (3) a prohibition against the use of any form of 

corporal punishment by foster/pre-adoptive parents upon any 

foster child(ren)." 110 Code Mass. Regs. § 7.111(3). The 

department shall reimburse foster parents for each child placed 

in their home at rates that the department has established for 

the provision of foster care. See 110 Code Mass. Regs. 

§ 7.130(1) (2008).

2. Factual and procedural background. The Magazus 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 

department for a "family resource license" that would enable 

them to become foster and preadoptive parents.2 During the 

 

2 It was the Magazus' intention to eventually adopt one or 

more of the foster children placed in their care. Consequently, 
6

application process, they completed the "Massachusetts Approach 

to Partnership in Parenting" training program and the "Family 

Resource License Study" (license study), as required by the 

department's regulations. See 110 Code Mass. Regs. § 7.107(1), 

(2) (2009). As part of the license study, the 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 

 

from the beginning of the application process, the department 

assessed the Magazus as a permanent placement. For ease of 

reference, we refer to the status of the Magazus during these 

proceedings simply as foster parents.
7

in private, the Magazus are of the view that a foster child 

would not actually witness any corporal punishment. Throughout 

the application process, the Magazus were forthcoming, honest, 

and cooperative in answering the department's inquiries, and 

they thought that they had been portrayed accurately and fairly 

in the license study.

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." The department determined 

that the Magazus had not met specific licensing standards, 

including the ability to sign the department's standard written 

agreement prohibiting the use of any form of corporal punishment 

on a foster child. See 110 Code Mass. Regs. §§ 7.104(1)(q), 

7.111(3). Therefore, the department concluded that it was 

unable to license the Magazus as an unrestricted foster or 

adoptive family.

The Magazus made a timely request for a so-called "fair 

hearing" pursuant to 110 Code Mass. Regs. § 10.06(4)(a) (2008). 

An evidentiary hearing was held on May 8, 2013, at which the 

Maguzus testified, as did three witnesses on behalf of the 

department. On June 24, 2013, a hearing officer affirmed the 
8

decision of the department not to approve the Magazus' 

application to become foster parents.

The hearing officer concluded that the Magazus had failed 

to show by a preponderance of the evidence that the decision did 

not conform with the department's regulations and policies, or 

that it was unreasonable. She found that the department 

expressly prohibits the use of corporal punishment on foster 

children, see 110 Code Mass. Regs. § 7.111(3), 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 
9

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.

The Magazus appealed the department's decision by filing a 

complaint for judicial review in the Superior Court pursuant to 

G. L. c. 30A, § 14. They alleged that their substantial rights 

had been prejudiced because the department's decision violated 

constitutional provisions (§ 14 [7] [a]), exceeded the 

department's authority (§ 14 [7] [b]), was based on errors of 

law (§ 14 [7] [c]), was not supported by substantial evidence 

(§ 14 [7] [e]), and was arbitrary or capricious (§ 14 [7] [g]). 

The Magazus also alleged that the department had violated their 

right to the free exercise of religion under the Federal and 

State Constitutions. The department filed the administrative 

record as its answer. Thereafter, the Magazus filed a motion 
10

for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 

(c), 365 Mass. 754 (1974), and Standing Order 1-96(4) of the 

Superior Court, Mass. Ann. Laws Court Rules, at 1138-1139

(LexisNexis 2015-2016).

Following a hearing, a judge denied the Magazus' motion for 

judgment on the pleadings and dismissed their complaint. The 

judge first concluded that the Magazus' substantial rights had 

not been prejudiced by the department's decision, and, 

therefore, they were not entitled to relief under G. L. c. 30A, 

§ 14 (7) (b), (c), (e), or (g). He stated that the 

administrative record in this case contained substantial 

evidence to support the department's rational belief that 

children who already have been traumatized by abuse should not 

be subjected to corporal punishment in their foster or adoptive 

homes, either directly or indirectly, for fear that the 

experience will revive or exacerbate their trauma. Further, the 

judge continued, the administrative record contained substantial 

evidence to show that the department's decision to deny the 

Magazus' application did not result from its desire to meddle in 

the Magazus' parenting of their own two daughters. Rather, the 

decision reflected the department's genuine concern that a 

foster child placed in the Magazus' care "likely would be 

subjected to potentially traumatic episodes of corporal 

punishment, if only from a distance, and that any child the 
11

[Magazus] ultimately might adopt likely would be subjected to 

potentially traumatic episodes of corporal punishment in a very 

direct way." Having determined that a substantial evidentiary 

basis existed for the department's concerns, the judge stated 

that the department had acted in a reasonable manner according 

to its statutory and regulatory authority in denying the 

Magazus' application to become foster parents.

The judge next concluded that the Magazus were not entitled 

to relief under G. L. c. 30A, § 14 (7) (a), for the purported 

violation of their constitutional right to the free exercise of 

religion. Relying on Wisconsin v. Yoder, 406 U.S. 205 (1972), 

and Attorney Gen. v. Desilets, 418 Mass. 316 (1994), the judge 

stated that the department's decision did not impose a 

"substantial burden" on the Magazus' ability to exercise their 

sincerely held religious beliefs. In the judge's view, the 

department's decision did not prevent the Magazus from 

disciplining their own two daughters in accordance with their 

Christian values, or otherwise coerce the Magazus into acting in 

violation of those values. Rather, the judge continued, such 

decision merely precluded the Magazus -- for wholly secular 

reasons -- from subjecting any child in the department's care to 

the Magazus' religiously based disciplinary practices. The 
12

judge determined that this result did not violate the Magazus' 

constitutional rights.3 The present appeal ensued.

3. Standard of review. Judicial review of a decision by 

the department is governed by G. L. c. 30A, § 14, and is 

"confined to the record," except in limited circumstances not 

present here. Id. at § 14 (5). See 110 Code Mass. Regs. 

§ 10.30 (2008) (decision by hearing officer is final decision of 

department and is subject to appeal under G. L. c. 30A). A 

reviewing court will not disturb the department's decision 

unless it determines that "the substantial rights of any party 

may have been prejudiced" because the decision was (a) in 

violation of constitutional provisions; (b) in excess of the 

department's authority or jurisdiction; (c) based on an error of 

law; (d) made on unlawful procedure; (e) unsupported by 

substantial evidence; (f) unwarranted by the facts; or (g) 

arbitrary or capricious, an abuse of discretion, or otherwise 

not in accordance with law. G. L. c. 30A, § 14 (7). See Doe, 

Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry 

 

3 Because the judge concluded that the Magazus had not 

satisfied their initial burden of demonstrating that the 

department's denial of their application imposed a "substantial 

burden" on their right to freely exercise their religious 

beliefs, the judge did not consider whether the department's 

prohibition on subjecting foster children to corporal punishment 

"pursues an unusually important governmental goal," and whether 

granting the Magazus an exemption from such prohibition "would 

substantially hinder the fulfillment of [that] goal." Attorney 

Gen. v. Desilets, 418 Mass. 316, 323 (1994), quoting L.H. Tribe, 

American Constitutional Law § 14-12, at 1242 (2d ed. 1988).
13

Bd., 470 Mass. 102, 108-109 (2014). "The court shall give due 

weight to the experience, technical competence, and specialized 

knowledge of the [department], as well as to the discretionary 

authority conferred upon it." G. L. c. 30A, § 14 (7). See 

Bulger v. Contributory Retirement Appeal Bd., 447 Mass. 651, 657 

(2006), and cases cited. "We ordinarily accord an agency's 

interpretation of its own regulation[s] considerable deference." 

Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 

228 (2010), quoting Warcewicz v. Department of Envtl. 

Protection, 410 Mass. 548, 550 (1991). See J.M. Hollister, LLC

v. Architectural Access Bd., 469 Mass. 49, 55 (2014). Such 

deference, however, is not unlimited, and a reviewing court will 

overrule an agency's interpretation of its governing statutes 

and regulations where such interpretation is "not rational." 

Ten Local Citizen Group, supra. See J.M. Hollister, LLC, supra.

4. Right to relief under G. L. c. 30A, § 14 (7) (b), (c), 

(e), or (g). The Magazus contend that the department's 

regulations do not preclude foster parent applicants from using 

appropriate corporal punishment on their own children, or 

disqualify such applicants from licensure. Rather, they 

continue, the regulations only prohibit the use of corporal 

punishment on a foster child. The Magazus assert that, in 

accordance with 110 Code Mass. Regs. § 7.111(3), they were 

willing to sign and comply with the department's standard 
14

written agreement that sets forth such prohibition. In their 

view, the department's concern that a foster child could be 

traumatized by living in a home where the foster parents' own 

children are physically disciplined is unwarranted where, as in 

this case, such corporal punishment would occur outside the 

sight and hearing of the foster child. Moreover, the Magazus 

argue that by effectively prohibiting the use of any physical 

discipline in a foster home, the department has improperly 

grafted a new requirement onto its regulations. The Magazus 

claim that, because the department's decision does not conform 

with its own regulations and is arbitrary and capricious, they 

have suffered substantial prejudice. Further, they continue, 

the department's decision is not based on substantial evidence 

where, in their view, they have satisfied all of the necessary 

requirements for licensure as foster parents. We disagree with 

the Magazus' contentions.4

 

4 Pursuant to 110 Code Mass. Regs. § 7.107(6) (2009), the 

written notice not to license an applicant as a foster parent 

shall include "the reason(s) for the decision." The Magazus 

point out that the only two regulations specifically cited in 

the written notice were 110 Code Mass. Regs. §§ 7.104(1)(q) and 

7.111(3) (2009), which require a foster parent to sign the 

department's standard written agreement prohibiting the use of 

corporal punishment on a foster child. That being the case, the 

Magazus seem to suggest that these are the only regulations on 

which the department's decision was based. Contrary to their 

suggestion, we read the entirety of the language in the written 

notice as more broadly informing the Magazus that the basis for 

the denial of their application was the department's concern 

about their use of corporal punishment, not merely their related 
15

The Magazus have the burden of showing, by a preponderance 

of the evidence, that the department's decision "was not in 

conformity with [its] policies and/or regulations and resulted 

in substantial prejudice to the [Magazus]." 110 Code Mass. 

Regs. § 10.23(a) (2008). The Legislature has vested the 

department with the authority to arrange substitute care for 

children whose own families are unable to protect their best 

interests.5 See G. L. c. 119, § 1. Consonant with its enabling 

legislation, the department has determined that an applicant for 

licensure as a foster parent must demonstrate, among other 

qualities, the ability "to promote the physical, mental, and 

emotional well-being of a child placed in his or her care." 110 

Code Mass. Regs. § 7.104(1)(d). The department's unwritten 

policy of not placing a foster child in a home where the parents 

use corporal punishment on their own children falls under the 

umbrella of this regulation.

 

inability to sign the written agreement. Indeed, the notice 

states that the licensing standards not met by the Magazus 

"include" their inability to satisfy 110 Code Mass. Regs. 

§§ 7.104(1)(q) and 7.111(3). The fact that the written notice 

did not specifically cite additional regulations pertaining to 

the department's responsibility to protect the safety and wellbeing of children placed in its care, see, e.g., 110 Code Mass. 

Regs. § 7.104(1)(d) (2009), is not significant where the reasons 

for the department's decision are readily apparent from the 

notice.

5 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." Kerins v. Lima, 425 Mass. 108, 112 n.6 (1997).
16

At the fair hearing, Jamie Caron, the regional clinical 

director for the department, testified that corporal punishment 

is not appropriate for children in need of substitute care 

through the department, and that individuals who use this form 

of discipline in their homes have not been approved as foster 

parents. She and Patricia Savelli, the adoption licensing and 

development supervisor for the department, both explained that 

the department's explicit prohibition against the use of 

corporal punishment on foster children, see 110 Code Mass. Regs. 

§ 7.111(3), arises from the fact that these children typically 

have a history of neglect or abuse.6 Caron acknowledged that the 

department does not have a written policy stating that parents 

who use physical discipline on their own children will not be 

approved as foster parents. Nonetheless, she pointed out that 

the department has an obligation to evaluate the "family 

dynamics" of a household, including whether foster children are 

treated in the same manner as biological and adopted children, 

 

6 The resource materials provided to the Magazus as part of 

the "Massachusetts Approach to Partnership in Parenting" 

training program state, in relevant part, that "[f]or 

children/youths who have been abused, spanking or smacking can 

be terribly damaging. Sometimes, of course, a child/youth's 

foster parents will not know for certain that a child/youth has 

been physically or sexually abused until the child/youth's 

behavior in the foster home so indicates. Therefore, using 

alternatives to physical punishment has two important benefits. 

First, it minimizes the risk of additional injury to a 

child/youth. Second, it helps break the intergenerational cycle 

of physical abuse."
17

both at the time of the foster care placement and into the 

future, given that the department's mission is to find permanent 

homes for foster children. Caron emphasized that the 

department's assessment is of "an overall family, family 

functioning, and how a child will fit into [a particular] home." 

She stated that "the use of corporal punishment for some 

children and not for others, can have a significant bearing on 

the family, those respective children's sense of belonging and 

their place within their family." Further, she continued, "any 

significant discrepancies in the practices with respect to 

parenting kids can lead to some struggles or some issues that 

[the department] think[s] are not optimal for all the kids 

involved." Caron expressed the department's belief that, where 

a foster child has been placed with "an open, expressive and 

communicative family," the foster child will be aware of and 

affected by the use of corporal punishment on other children in 

the home. According to Savelli, a foster child exposed to this 

form of discipline could reexperience feelings of trauma based 

on the child's history.7 Caron stated that because the 

 

7 Pursuant to G. L. c. 30A, § 11 (5), pertaining to the 

conduct of adjudicatory proceedings before administrative 

agencies, such "[a]gencies may utilize their experience, 

technical competence, and specialized knowledge in the 

evaluation of the evidence presented to them." Fair hearing 

officers who are employed by the department "shall have, at a 

minimum, two years of direct service experience as well as legal 

training and/or experience." 110 Code Mass. Regs. § 10.03 
18

department could not always be certain about the precise nature 

and scope of a foster child's prior trauma, it was neither 

realistic nor feasible for the department to attempt to place 

with the Magazus only a foster child who had not been the victim 

of physical or sexual abuse.

In the department's opinion, what made this case unique was 

the fact that, notwithstanding their awareness of the 

department's policy against corporal punishment, the Magazus had 

made it clear during their assessment that physical discipline 

is an important, albeit infrequently used, aspect of their 

parenting style. That being the case, Caron testified that the 

department reasonably assumed and was concerned that if a foster 

child was placed with and subsequently adopted by the Magazus, 

the child eventually would be subjected to corporal punishment 

just like the Magazus' own daughters. The Magazus' willingness 

to sign the department's standard written agreement, stating 

 

(2008). Consistent with the "great deference" we afford to the 

department's expertise and experience, Lindsay v. Department of 

Social Servs., 439 Mass. 789, 799 (2003), we conclude that the 

department was not required to present expert testimony 

regarding the harm that a foster child could experience as a 

consequence of being exposed to corporal punishment, either 

directly or indirectly, in a foster home. The hearing officer, 

based on her background and specialized knowledge, would have 

understood the nature and scope of such harm. See Alsabti v. 

Board of Registration in Med., 404 Mass. 547, 549 (1989), 

quoting New Boston Garden Corp. v. Assessors of Boston, 383 

Mass. 456, 466 (1981) (agency's decision will be upheld if it 

"could have been made by reference to the logic of experience" 

[emphasis in original]).
19

that they would not use corporal punishment on a foster child, 

did not alleviate the department's concerns about the use of 

physical discipline in the home and the use of such discipline 

on a foster child after adoption. In light of the Magazus' 

values and practices concerning discipline, which were not 

compatible with the department's expectations, Caron stated that 

the Magazus were not a "suitable match" for the department.8 

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 

 

8 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." Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015). 

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." Id. at 8.
20

is rationally related to the department's objectives in the 

placement of foster children. See generally Anusavice v. Board 

of Registration in Dentistry, 451 Mass. 786, 795 (2008) (where 

board's policy "is not contrary to the language of its enabling 

statute, and is rationally related to furthering the board's 

purpose to safeguard the public health and welfare, it will be 

upheld"); Arthurs v. Board of Registration in Med., 383 Mass. 

299, 312-313 (1981) ("It is a recognized principle of 

administrative law that an agency may adopt policies through 

adjudication as well as through rulemaking"). 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. Accordingly, the Magazus are not entitled to relief 

under G. L. c. 30A, § 14 (7) (b), (c), (e), or (g).

5. Right to relief under G. L. c. 30A, § 14 (7) (a), for 

violation of constitutional provisions. 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. They contend that the department's denial of 

their application to become foster parents substantially burdens 

their right to the free exercise of religion under art. 46, § 1, 

of the Amendments to the Massachusetts Constitution, amending 
21

art. 18 of the Amendments, and that the department has failed to 

demonstrate a sufficiently compelling State interest to justify 

this burden. Therefore, the Magazus continue, because the 

department's decision impermissibly infringes on their 

constitutional right, their application to become foster parents 

should be allowed. We disagree.

Article 46, § 1, of the Amendments 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] . . . ."9 See Commonwealth v. 

Nissenbaum, 404 Mass. 575, 578 & n.3 (1989). 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." Rasheed v. 

Commissioner of Correction, 446 Mass. 463, 467 (2006). We 

 

9 The right to freely exercise one's religion also is 

embodied in art. 2 of the Massachusetts Declaration of Rights, 

which ensures that no person "shall be hurt, molested, or 

restrained, in his person, liberty, or estate, for worshipping 

GOD in the manner and season most agreeable to the dictates of 

his own conscience; or for his religious profession or 

sentiments; provided he doth not disturb the public peace, or 

obstruct others in their religious worship." See Rasheed v. 

Commissioner of Correction, 446 Mass. 463, 466 (2006). In the 

present appeal, the Magazus' free exercise claim focuses on the 

purported violation of art. 46, § 1, of the Amendments to the 

Massachusetts Constitution, amending art. 18 of the Amendments.
22

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 

Desilets, 418 Mass. at 321-323.10 See Rasheed, supra; Society of 

Jesus of New England v. Commonwealth, 441 Mass. 662, 669-670 

(2004).

This balancing test requires that we determine whether the 

State action about which a party has complained (here, a 

 

10 In Desilets, 418 Mass. at 321, this court stated that it 

"should reach its own conclusions on the scope of the 

protections of art. 46, § 1, [of the Amendments] and should not 

necessarily follow the reasoning adopted by the Supreme Court of 

the United States under the First Amendment." This 

pronouncement arose as a consequence of the Supreme Court's 

decision in Employment Div., Dep't of Human Resources of Or. v. 

Smith, 494 U.S. 872 (1990), "a much criticized opinion that 

weakened First Amendment protections for religious conduct." 

Desilets, supra. See Abdul-Alázim v. Superintendent, Mass. 

Correctional Inst., Cedar Junction, 56 Mass. App. Ct. 449, 453-

454 & n.8 (2002). Prior to Smith, the Supreme Court had 

employed a balancing test to analyze free exercise claims under 

the First Amendment, requiring a State to identify a compelling 

interest that would outweigh the burden on the free exercise of 

religion. See Wisconsin v. Yoder, 406 U.S. 205, 214-215 (1972); 

Sherbert v. Verner, 374 U.S. 398, 403-409 (1963). See also 

Society of Jesus of New England v. Commonwealth, 441 Mass. 662, 

669 n.7 (2004). In Smith, supra at 878, the Supreme Court 

rejected this approach, holding that if the burden on free 

exercise is "merely the incidental effect of a generally 

applicable and otherwise valid provision, the First Amendment 

has not been offended." See Society of Jesus of New England, 

supra. We subsequently stated in Desilets, supra at 321-322, 

that when interpreting art. 46, § 1, of the Amendments, 

Massachusetts courts would adhere to the standards of First 

Amendment jurisprudence that predated Smith, and would continue 

to use the compelling State interest balancing test for claims 

alleging an impermissible burden on the free exercise of 

religion.
23

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." 

Desilets, 418 Mass. at 322. See Alberts v. Devine, 395 Mass. 

59, 73-74, cert. denied sub nom. Carroll v. Alberts, 474 U.S. 

1013 (1985); Attorney Gen. v. Bailey, 386 Mass. 367, 375, cert. 

denied sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). See 

also Yoder, 406 U.S. at 215 ("only those interests of the 

highest order and those not otherwise served can overbalance 

legitimate claims to the free exercise of religion"); Sherbert

v. Verner, 374 U.S. 398, 403-409 (1963). 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" (footnotes 

omitted). Desilets, supra at 322-323, quoting L.H. Tribe, 

American Constitutional Law § 14-12, at 1242 (2d ed. 1988). See 

Rasheed, 446 Mass. at 467, 472. "[T]he State's assertion of a 

compelling interest, and the balancing of that interest against 
24

the burden imposed on the exercise of religion, is considered in 

a concrete, pragmatic, and fact-specific way." Society of Jesus 

of New England, 441 Mass. at 671.

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. We disagree with this characterization of the 

department's purported constitutional infringement. The free 

exercise of religion "embraces two separate concepts, 'freedom 

to believe and freedom to act.'" Bailey, 386 Mass. at 375, 

quoting Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). See 

note 9, supra. "Religious beliefs -- what a person thinks, what 

faith he holds in his heart and mind -- are indeed protected 

absolutely" from governmental interference. Society of Jesus of 

New England, 441 Mass. at 676. See Sherbert, 374 U.S. at 402 

("The door of the Free Exercise Clause stands tightly closed 

against any governmental regulation of religious beliefs as 

such" [emphasis in original]); Murphy v. I.S.K.Con. of New 

England, Inc., 409 Mass. 842, 851, cert. denied, 502 U.S. 865 

(1991). "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." Society of Jesus of 

New England, supra. See Yoder, 406 U.S. at 220 ("activities of 
25

individuals, even when religiously based, are often subject to 

regulation by the States in the exercise of their undoubted 

power to promote the health, safety, and general welfare"); 

Alberts, 395 Mass. at 73 (freedom to act on religious beliefs 

subject to regulation for societal protection). 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.

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. Curtis v. School Comm. of Falmouth, 

420 Mass. 749, 761 (1995), cert. denied, 516 U.S. 1067 (1996), 

quoting Hernandez v. Commissioner of Internal Revenue, 490 U.S. 
26

680, 699 (1989). See Rasheed, 446 Mass. at 472; Desilets, 418 

Mass. at 322. "[A] 'substantial burden' is one that is coercive 

or compulsory in nature." Curtis, supra. "[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." Id. at 762, 

quoting Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 

U.S. 439, 450-451 (1988).

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. See, e.g., 
27

Rasheed, 446 Mass. at 474 (prohibiting prison inmate from 

acquiring Islamic festival meats that inmate believed he must 

consume to comply with faith constituted substantial burden on 

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. See Desilets, 418 

Mass. at 322, and cases cited.

"It cannot be disputed that the State has a compelling 

interest to protect children from actual or potential harm." 

Blixt, 437 Mass. at 656. This is especially true with respect 

to foster children whose need for safety, security, and 

stability is readily apparent. See generally Petition of the 

Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 

Mass. 573, 587-588 (1981), quoting Richards v. Forrest, 278 

Mass. 547, 553 (1932) ("The State as parens patriae may act to 

protect minor children from serious physical or emotional 

harm. . . . In such matters 'the first and paramount duty of 

courts is to consult the welfare of the child. To that 

governing principle every other public and private consideration 

must yield'"). 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 
28

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. Accordingly, the Magazus are not 

entitled to relief under G. L. c. 30A, § 14 (7) (a).

6. Conclusion. The judgment of the Superior Court 

dismissing the Magazus' appeal from the final decision of the 

department is affirmed.

So ordered.
CORDY, J. (concurring, with whom Botsford and Duffly, JJ.,

join). I concur in the court's conclusion that the Department 

of Children and Families (department) has a compelling interest 

in protecting the physical and emotional well-being of foster 

children, and that it could reasonably interpret its enabling 

legislation to deny an application to become foster and 

preadoptive parents because of the applicants' use of physical 

discipline as a form of disciplining their own children. I 

write separately to question the uniformity of the department's 

application of its standards for assessing the suitability of 

foster parents and their licensing across the department's 

western region, and the consistency of the rigor it applied to 

the plaintiffs' application compared to the applications of 

others who posed significant risks to the compelling interests 

the department is charged with protecting.1

I begin with several propositions that I expect would be 

beyond dispute. First, the department's filings for custody 

have been significantly increasing, some would say "soaring," 

 

1 In its 2015 annual report, the Office of the Child 

Advocate reported that on the basis of its reviews of G. L. 

c. 119, § 51A, neglect and abuse reports filed with, 

investigated, and supported by the Department of Children and 

Families (department) in the prior year, its staff had found 

"concerning trends" within foster homes and regarding the 

selection of certain foster homes. Of the § 51A reports it 

reviewed, more than sixty per cent involved children in foster 

homes. See Office of the Child Advocate, Annual Report: Fiscal 

Year 2015, at 9-10.
2

over the last several years.2 Second, the department is in dire 

need of qualified foster parents and homes to care for this 

burgeoning population of children who have been removed from the 

custody of their parents because of severe abuse and neglect. 

Third, the challenges facing foster parents can be as daunting 

as their role is important, and the department must provide them 

both an appropriate level of oversight and support to ensure the 

successful transition of the children in their care.

Turning to the plaintiffs and their interest in providing a 

safe, caring, and nurturing environment to this particularly 

vulnerable population, it is apparent from the record that in 

every respect (but for one) they 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 

 

2In June, 2014, the Boston Globe reported that from December 

2013, through May, 2014, the department had filed 2,000 court 

petitions to gain custody of children it determined to be at 

risk of abuse or neglect, a fifty-two per cent increase from the 

previous year. It further reported that in May, 2014, the 

department filed 265 petitions, a seventy per cent jump from 

May, 2013. See P. Schworm, State Filings for Custody of 

Children Soaring, Boston Globe, June 20, 2014, at A.1.
3

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 
4

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.
5

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.3 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, G. L. c. 119, 

§ 51A, reports of abuse and neglect had been filed against her;4

 

3 See generally, "Case Review: The Foster Home of Kimberly 

Malpass, September 30, 2015," prepared by the Executive Office 

of Health and Human Services, Department of Children and 

Families.

4 One of these reports, filed in June of 2012 (before she 

was licensed), alleged neglect of her three children and that 

one or more of her children had been beaten with a belt by her 

boy friend. After the woman was licensed, and six months prior 

to the death of one of the foster children placed in her care, 

the department received another report that the woman's boy 
6

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).5

Whether the department's process and standards resulting in 

the licensing of this foster mother is the norm or the 

exception, we do not know. Hopefully, it is the exception and, 

whatever the licensing standard actually is, it will be 

uniformly applied.

 

friend had been living in the home (unreported), was a drug 

user, was a "disciplinarian in the home and [had] hit [one of 

the foster children] in the head . . . when [the foster child] 

was not listening." Although it was apparent that she likely 

was not truthful in the subsequent "investigation," at least 

with respect to her relationship with her boy friend and their 

living arrangements, no action was taken except that it was 

"emphasized" to her that "all frequent visitors needed to be 

approved by [the department]."

5 Foster parents receive a daily financial stipend from the 

department for each child in their care, plus allowances for 

clothing, birthdays, and holidays.