The American Center for Law and Justice (ACLJ) strongly opposes 22 VAC 40-131-170(B), a proposed regulation that would force faith-based adoption placement agencies to either violate the tenets of their faith or forfeit their licenses. By way of introduction, the ACLJ is an organization dedicated to the defense of constitutional liberties secured by law. ACLJ attorneys have argued before the Supreme Court of the United States in a number of significant cases involving the freedoms of speech and religion. See, e.g., Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009); McConnell v. FEC, 540 U.S. 93 (2003); Lamb’s Chapel v. Center Moriches Sch. Dist., 508 U.S. 384 (1993); Bd. of Educ. v. Mergens, 496 U.S. 226 (1990); Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987).

The proposed regulation would jeopardize the best interests of children in pursuit of a political agenda by forcing religiously affiliated adoption agencies to close their doors or compromise their standards and principles. The regulation is entirely unnecessary, as married couples or individuals desiring to adopt a child have ample opportunity to do so without any need to trample upon the religious freedom of faith-based adoption agencies.

The Proposed Regulation Is Unwise and Unnecessary

Proposed regulation 22 VAC 40-131-170(B), which would apply to adoption placement agencies, states, “The licensee shall prohibit acts of discrimination based on race, color, gender, national origin, age, religion, political beliefs, sexual orientation, disability, or family status to:

  1. Delay or deny a child’s placement; or

  2. Deny an individual the opportunity to apply to become a foster or adoptive parent.” 22 VAC 40-131-170(B), 27:11 VA.R. 1219 (Jan. 31, 2011).

While the stated purpose of the regulation is to “ensure that activities, services, and facilities provided by [licensed private child-placing agencies] are conducive to the welfare of the children under their custody or control,” 27:11 VA.R. 1203 (Jan. 31, 2011), it would be counterproductive by harming the best interests of children. The inclusion of religion, sexual orientation, and family status as protected classes in the proposed regulation would have 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.

The proposed regulation would drive some faith-based agencies out of the market, thus limiting services rather than expanding them. In addition, it would virtually eliminate the ability of a biological parent to ensure that his or her child will be adopted by a family that shares the same religious worldview.