The proposed Minimum Standards for Licensed Private Child-Placing Agencies limit the nondiscrimination obligation of such agencies to nondiscrimination on the basis of race, color or national origin. Among other things, the proposed regulations delete from the original proposal nondiscrimination on the basis of sexual orientation. Many religiously affiliated child-placing agencies argued that requiring them to provide adoption services to gay and lesbian couples would violate their religious beliefs.

 There is no categorical exclusion of homosexuals as adoptive parents in Virginia, and homosexual individuals may adopt children. But a homosexual couple may not jointly adopt a child in Virginia. Virginia law provides “In 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.”

 Data indicate that homosexual individuals probably have adopted a significant number of children in Virginia. Nationwide, 21 percent of male-partnered unmarried couples and 31 percent of female-partnered unmarried couples reported children living with them. Studies have found from 8% to 34% of adopters were single. It is fair to assume that some proportion of those single adoptive parents is gay or lesbian. It is also fair to assume that single gay individuals have adopted children in Virginia because in Virginia, any individual, gay or straight, is eligible to adopt a child.

Furthermore, gay and lesbian couples may have adopted children in other states where it is legal to do so and then moved with their children to Virginia. Under the Full Faith and Credit Clause of the Constitution, Virginia would be bound to recognize those adoptions and accord all the rights of adoptive parents under Virginia law to the homosexual couple. Gays and lesbians are parenting a significant number of children in Virginia, individually and as same sex couples.

 It is hard to construct a rational argument that adoption by a gay or lesbian individual meets the test of the best interest of the child, but joint adoption by a gay couple does not. Striking “sexual orientation” from the nondiscrimination clause of the proposed regulations does not prevent gays and lesbian individuals from adopting children in Virginia, and does not prevent gay couples who have adopted children in other states where it is legal to do so from moving to Virginia with their children. It only prevents gay couples from adopting in Virginia, a result that is irrational, unsupportable, and open to constitutional challenge. The Supreme Court has held “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained . . . . .” No opponent of adoption by gay couples has explained the purpose of that restriction when adoption by gay individuals has been and will continue to be permitted in Virginia.

In these circumstances, however, there is a competing constitutional value. The right of fair treatment of gay couples must be balanced against the religious liberty of faith based adoption agencies. A licensed adoption organization should not be forced to choose between relinquishing its license or violating its religious beliefs. A straightforward solution in Virginia would be to include a narrowly drawn “conscience clause” that would exempt religiously affiliated organizations from providing adoption services to unmarried couples when doing so would violate the organization’s religious beliefs. A similar rule, applicable to health care providers that are recipients of federal funds, has been in effect for many years. The broad nondiscrimination provision in the original proposed regulations would continue to apply to all other licensed adoption providers, assuring that all unmarried couples, gay and straight, could adopt children when it is in the best interest of the child.