As written, the proposed regulation protects Virginia’s many faith-based adoption agencies from being forced to violate the tenants of their faith. Prior to the recent amendments, the regulation would have had a devastating impact upon faith-based adoption agencies that operate in accordance with the principles of a particular religion or denomination by forcing them to accept prospective adoptive or foster parents whose lifestyles or religious worldviews conflict with the agency’s religious principles. Many faith-based adoption agencies operate in accordance with their sincerely held religious belief that marriage is the union of a man and a woman, and the related belief that the optimal environment for children to learn and grow is in a home led by a married couple. History proves that including sexual orientation or gender in the list of protected classes drives some faith-based agencies out of the market, thus limiting services rather than expanding them.[1] The proposed regulation as written therefore serves to protect the best interest of the child by encouraging private faith-based agencies to provide adoption services.

            A faith-based agency’s religious objection to handling adoption placements for unmarried, cohabitating couples (whether of opposite-sex or same sex) is fully consistent with Virginia law. The Constitution of Virginia states that “only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.” Va. Const. Art. I, § 15-A. The Virginia legislature and the people of Virginia by constitutional amendment have expressed this important public policy, which elevates marriage between one man and one woman as the ideal family structure for raising children. 

           To require faith-based agencies to disregard this public policy would squarely conflict 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.

            Virginia’s Religious Freedom Restoration Act also 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). The proposed regulation preserves this longstanding right of religious exercise and protects the rights and interests of children, prospective adoptive parents, and adoption agencies.