Virginia Regulatory Town Hall
Department of Social Services
State Board of Social Services
Minimum Standards for Licensed Private Child-Placing Agencies [22 VAC 40 ‑ 131]
Action Adopt new standards for licensed private child-placing agencies.
Stage Proposed
Comment Period Ended on 4/1/2011
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4/1/11  2:49 pm
Commenter: Erik Zimmerman, American Center for Law and Justice

Part 2 - Proposed Regulation 22 VAC 40-131-170(B)

Many faith-based adoption agencies operate in accordance with their sincerely-held religious belief that marriage is the union of one man and one woman, and the related belief that the optimal environment for children to learn and grow is in a home led by a married couple. These principles are fully consistent with the Constitution of Virginia, which 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.


Furthermore, Virginia law recognizes the difference between a married couple and an unmarried cohabiting couple in terms of fitness for adoption, stating, “[i]n determining the appropriate home in which to place a child for adoption, a married couple or an unmarried individual shall be eligible to receive placement of a child for purposes of adoption.” Va. Code Ann. § 63.2-1225(A). As such, a faith-based agency’s religious objection to handling adoption placements for unmarried cohabiting couples (whether opposite-sex or same sex) is fully consistent with Virginia law. The proposed regulation would contradict the important public policy expressed by the Virginia Constitution and the General Assembly elevating marriage between one man and one woman as the ideal family structure for raising children.


It is clear that, in general, children who live in a home led by a married man and woman are better off than children who do not. For example, children who grow up without a father have higher rates of poverty, illness or injury, incarceration, pregnancy, drug or alcohol abuse, and dropping out of high school than children who grow up with a father. National Fatherhood Initiative, The Father Factor, In addition, there is a disturbing relationship between children raised in a home led by an unmarried cohabiting couple and physical or sexual abuse. See, e.g., Associated Press, Children at higher risk in nontraditional homes; Abusive-boyfriend syndrome part of broader trend, experts worry, Nov. 18, 2007, As such, the proposed regulation harms the best interests of children by penalizing faith-based organizations that promote the raising of children in homes led by a married couple.


The regulation is also unnecessary because a married couple or individual whose lifestyle or worldview is inconsistent with the tenets of a particular adoption agency has numerous other options available to them. A directory of licensed child-placing agencies recently prepared by the Department of Social Services lists over 75 different agencies licensed for adoption, foster care, and/or independent living services in Virginia. Virginia Dep’t of Social Servs., Div. of Licensing Programs, Directory of Licensed Child-Placing Agencies, Jan. 2011, The large number of existing agencies ensures that any prospective adoptive parent will be able to find an agency suitable to his or her needs.


The Proposed Regulation Is Invalid


Protection for “sexual orientation” status is conspicuously absent from the Virginia Code, despite various efforts to enact legislation that would add “sexual orientation” as a protected class. The proposed regulation is just the latest of many ultra vires attempts to add “sexual orientation” as a protected status in Virginia law without legislative approval.


In 2006, Governor McDonnell, then acting as Attorney General of Virginia, concluded that an executive order changing the Commonwealth’s nondiscrimination policy to include “sexual orientation” as a protected class was unconstitutional. His opinion stated, “the addition of sexual orientation as a protected employment class within state government was intended to, and in fact did, alter the public policy of the Commonwealth. . . . [C]hanging the public policy of the Commonwealth is within the purview of the General Assembly; therefore, that portion of Executive Order No. 1 is beyond the scope of executive authority and, therefore, unconstitutional.” Va. A.G. Op. No. 05-094, 2006 Va. AG LEXIS 12 (Feb. 24, 2006) (emphasis added).


Previous Attorney General opinions had similarly concluded that the addition of “sexual orientation” status as a protected class in Virginia would require the approval of the General Assembly. See, e.g., Va. A.G. Op. No. 02-089, 2002 Va. AG LEXIS 79 (Nov. 8, 2002) (“[W]ithout enabling legislation, the Fairfax County School Board has no authority to include sexual orientation in its nondiscrimination policy.”); Va. A.G. Op. No. 02-029, 2002 Va. AG LEXIS 64 (Apr. 30, 2002) (concluding that enabling legislation is required to allow “(1) Fairfax County to prohibit discrimination due to sexual orientation or (2) the Fairfax County Human Rights Commission to investigate cases involving alleged discrimination based on sexual orientation”). As such, the proposed regulation unconstitutionally attempts to legislate public policy through executive regulation.

CommentID: 16653