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.
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.
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.