Tiffany Barrans, American Center for Law & Justice
Support for 22 VAC 40-131-170(B) (part 1) (repost after error)
The American Center for Law and Justice (ACLJ) strongly supports the current version of 22 VAC 40-131-170(B). As amended, the proposed regulation strikes the appropriate balance between protecting against discrimination, keeping the primary focus on the best interests of the child, and protecting faith-based organizations that provide adoptive services. 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).
Despite numerous public comments, the proposed regulation does not prohibit adoptions for or discriminate against homosexuals. Under current law and practice in Virginia, married couples or individuals desiring to adopt a child have ample opportunity to do so. Prior to the recent amendments, the regulation would have discriminated against religiously affiliated adoption agencies by forcing them to close their doors or compromise their standards and principles. But as written, the regulation protects the best interests of the child and the longstanding, venerable tradition of protecting the free exercise of religion.
The Proposed Regulation Does Not Prohibit Homosexual Individuals from Adopting.
As originally drafted, proposed regulation 22 VAC 40-131-170(B) stated that adoption agencies, “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). After a notice and comment period, the regulation currently states that adoption agencies, “shall prohibit acts of discrimination based on race, color, or national origin status to:
1. Delay or deny a child’s placement; or
2. Deny an individual the opportunity to become a foster or adoptive parent.”
These amendments do not result in banning homosexuals from adopting children. Under Virginia law, both married and single individuals, regardless of their gender or sexual orientation, are permitted to adopt children. The law states, “[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). One’s sexual orientation is not a factor. Virginia law treats all unmarried couples equally, regardless of the gender or sexual orientation. Current law and adoption practices in Virginia provide ample opportunity for all to adopt. Therefore, the removal of gender and sexual orientation from the “protected classes” neither discriminates against homosexual individuals, nor equates to a ban on adoption for homosexual individuals.
Moreover, the current law thus treats both the heterosexual and homosexual individual equally. 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, http://www.dss.virginia.gov/pub/pdf/childplacedir.pdf. 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 Virginia Constitution recognizes marriage as between a man and a woman, Va. Const. art. I, § 15-A.