I write on behalf of the Catholic Charities of the Diocese of Arlington in opposition to the proposed language of 22 VAC 40-131-170, which would add the following language to the “Program Statement” section of the Standards for Licensed Child-Placing Agencies:

B.    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.

We urge DSS to reject this proposed regulation for three primary reasons.

First, designating “sexual orientation” and “family status” as protected classifications could force faith-based (and possibly other) adoption service providers to choose between either violating their religious and moral beliefs regarding marriage, family life and human sexuality, or being driven out of providing adoption services altogether.  This sad scenario already has played out in other jurisdictions, including Massachusetts and the District of Columbia.

Many religious organizations provide adoption services in Virginia, including Catholic Charities of the Diocese of Arlington, which has provided such services for nearly 65 years.  Until now, these organizations have had the freedom to make adoption placements in a manner consistent with their religious beliefs, including in situations involving a cohabiting couple (whether an unmarried heterosexual couple or a homosexual couple), or an individual or couple who otherwise lives contrary to the organization’s moral and religious principles.  That freedom should not be infringed upon.

In addition, because respect for human life and the dignity of the human person is a central tenet of the Catholic faith, and the provision of adoption services is an important means by which the Church pursues and promotes that core belief, any regulation forcing Catholic institutions to choose between violating their religious beliefs or not providing such services would constitute a substantial infringement on religious freedom.   

Second, the proposal to make a protected classification of “sexual orientation” for purposes of adoption services has no support in federal law or in any enactment of the General Assembly.  Moreover, the Attorney General’s office, in numerous formal opinions, has held that state agencies and other state entities lack the authority to create such new classifications in the absence of express statutory policy.  See, e.g., Atty. Gen. Ops. 02-029, 02-089, 05-094, among others. 

Since 1997, the General Assembly has on more than 30 occasions considered and rejected bills adding “sexual orientation” to various state nondiscrimination statutes. It is the role of the elected members of the General Assembly, and not of state executive departments, to set policy for the Commonwealth.  Absent enabling legislation, a state agency has no authority to include sexual orientation in a nondiscrimination policy, particularly since its inclusion as a protected classification has been so often rejected by the General Assembly. 

Federal law similarly provides no support for the proposed regulatory language, as Congress has never acted to prohibit discrimination generally on the basis of sexual orientation.

Third, the proposed regulation’s prohibition on discrimination on the basis of “religion” and “age” may create concerns for some religious providers of adoption services.  While Catholic Charities of the Diocese of Arlington does not do so, a religious organization might reasonably choose to provide services only to its own members or to those who share its core beliefs, rather than offering services to the general public.  Their freedom to make such a choice should not be infringed by the state.

With respect to “age,” adoption services are unique in that, unlike employment or other situations, adoption creates a lifelong parent-child relationship.  Drawing upon their experience, an adoption services provider might reasonably take age into consideration when determining the qualifications of adoptive parents. For example, a potential adoptive couple who are elderly, even if otherwise in good health, might create an unacceptable risk that the adopted child would be left parentless a second time before reaching adulthood.

For the reasons discussed above, Catholic Charities of the Diocese of Arlington urges DSS to reject the proposed language of 22 VAC 40-131-170(B).

Sincerely,

Art Bennett

President & CEO

Catholic Charities of the Diocese of Arlington