In addition, the creation of “sexual orientation” as a protected status in the proposed regulation raises a host of policy questions within the purview of the General Assembly, not an executive agency. The term “sexual orientation” is not defined in the regulation. Is it intended to only refer to whether an individual is attracted to males, females, or both, or is there some connection to the individual’s conduct? Would a faith-based adoption agency discriminate on the basis of “sexual orientation” by declining to place a child with a single individual who has a lifestyle of numerous sexual partners? Would it be “sexual orientation” discrimination to decline to place a child with a non-monogamous couple that believes in “open” relationships with other sexual partners? This kind of dangerous Pandora’s Box ought not to be opened, and only the General Assembly has the authority to consider such drastic changes to Virginia law.

The Proposed Regulation Violates Religious Freedom

The proposed regulation’s disregard for faith-based adoption agencies squarely conflicts with the Commonwealth’s longstanding, venerable tradition of providing robust protection for the free exercise of religion. Article I, Section 16 of the Constitution of Virginia declares, in part, that “religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” Va. Const. Art. I, § 16. This language first appeared in the Virginia Declaration of Rights, a highly influential document that influenced Thomas Jefferson and James Madison when they drafted the Declaration of Independence and the Bill of Rights, respectively. Virginia Declaration of Rights, http://www.loc.gov/rr/program/bib/ourdocs/mason.html.

In addition, the Virginia Act for Religious Freedom, drafted by Thomas Jefferson, has been part of the Virginia Code for over two centuries. It declares that free exercise of religion is among “the natural rights of mankind; and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right.” Va. Code. Ann. § 57-1 (enacted Jan. 16, 1786). Jefferson viewed this statute as one of his greatest accomplishments, and his tombstone reads, “Here was buried Thomas Jefferson, author of the Declaration of American Independence, of the Statute of Virginia for Religious Freedom, and father of the University of Virginia.” Brief Biography of Thomas Jefferson, http://www.monticello.org/site/jefferson/brief-biography-thomas-jefferson. In 1986, the 200th anniversary of the Virginia Act for Religious Freedom, the General Assembly reaffirmed the importance of religious freedom by declaring the second week of January to be Religious Freedom Week in the Commonwealth, and by designating the 16th of January as Religious Freedom Day. Va. Code Ann. § 57-2.01.

In addition, Virginia’s Religious Freedom Restoration Act protects the free exercise of religion by declaring that “[n]o government entity shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability unless it demonstrates that application of the burden to the person is (i) essential to further a compelling governmental interest and (ii) the least restrictive means of furthering that compelling governmental interest.” Va. Code Ann. § 57-2.02(B). To “substantially burden” one’s religious exercise means “to inhibit or curtail religiously motivated practice.” Va. Code Ann. § 57-2.02(A).

Imposing the proposed regulation upon faith-based adoption placement agencies violates the principles cited above. The regulation would substantially burden the religious exercise of faith-based agencies by curtailing religiously motivated practice, namely, providing adoption services in accordance with the tenets of their faith. The government could not demonstrate that imposing the regulation is essential to further a compelling interest, nor could it prove that the regulation is the least restrictive means of furthering such an interest. The rights and interests of children, prospective adoptive parents, and adoption agencies are furthered and protected by existing law, and the proposed regulation does not enhance the well-being of children.

Conclusion

The ACLJ supports the invaluable work of faith-based adoption agencies, and strongly urges the rejection of 22 VAC 40-131-170(B). The proposed regulation would further a political agenda at the expense of Virginia’s children and faith-based adoption agencies. It is bad law and bad policy.