The ACLU of Virginia opposes changes to 22VAC40-130-10 that would remove the prohibition on discrimination against prospective adoptive parents based on gender, age, religion, political beliefs, sexual orientation, disability, or family status (the “antidiscrimination provision”).  We submit these comments to rebut the Attorney General’s contention that the Board lacks authority to enact the antidiscrimination provision, and the argument of some private agencies that the antidiscrimination provision infringes on their religious freedom.  

1.    The Board Has the Authority to Enact the Antidiscrimination Provision

    The ACLU of Virginia finds no basis for the opinion of the Attorney General, set forth in the April 12, 2011 memorandum from Allen T. Wilson, that the Board does not have the authority to adopt the antidiscrimination provision because it “does not comport with applicable state law or public policy.”  Notably, neither the memorandum nor any other public document explains what law or public policy is violated by the antidiscrimination provision, so it is difficult to respond to the Attorney General’s claim.  However, our research finds no state law or public policy that is contrary to the antidiscrimination provision.

    Section 63.2-217 provides that “[t]he [State] Board [of Social Services] shall adopt such regulations, not in conflict with this title, as may be necessary or desirable to carry out the purpose of this title.”  It should go without saying that regulations ensuring that agencies consider the widest available range of prospective parents serve the Code’s purpose of ensuring that children are placed with appropriate parents.  Nor is there any provision of Title 63.2 that conflicts with the antidiscrimination provision.  

Possibly, the Attorney General is referring to the “public policy” embodied in Virginia’s constitutional amendment and statute prohibiting the recognition of marriages between persons of the same sex.  See Va. Const. Art. I, § 15-A; Va. Code § 20-45.2.  If so, this is a red herring.  The antidiscrimination provision does not require the recognition of same-sex marriages, nor does it require agencies to allow unmarried couples, whether of the same sex or opposite sex, to adopt.  It simply requires that gay and lesbian individuals be treated the same as heterosexual individuals.  

Possibly, the Attorney General is referring to the fact that Title 63.2 contains no explicit authorization for the Board to adopt the anti-discrimination provision.  But no such explicit authorization is required.  There is no equivalent of the “Dillon Rule” for state agencies.  “The Dillon Rule provides that municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable.”  Schefer v. City Council of City of Falls Church, 279 Va. 588, 593 691 S.E.2d 778, 780 (2010) (citations and internal quotation marks omitted) (emphasis added).  By contrast, the Board is expressly empowered by statute to adopt any regulations that advance the purposes of the title.

The April 12 memorandum states that the antidiscrimination provision should be eliminated in order to “ensure consistency with federal law, 42 U.S.C. § 671.”  But there is nothing in that statute that conflicts with the antidiscrimination provision.  Paragraph (a)(18)(A) of the statute states that the state shall not “deny to any person the opportunity to become an adoptive or a foster parent, on the basis of the race, color, or national origin of the person, or of the child, involved.”  But the statute does not prohibit states from extending protection against discrimination to other categories of prospective parents.  

Finally, I note that every member of the Board has taken an oath to “support the Constitution of the United States.”  Va. Code § 49-1.  Enacting regulations to prevent invidious discrimination is consonant with that oath as well as the Board’s statutory authority.  

2.    The Antidiscrimination Provision Does Not Violate the Religious Freedom of Adoption Agencies.

The ACLU of Virginia is sensitive to the important constitutional right of religious liberty and strongly advocates for the right of each person to practice his or her religion consistent with the demands of his or her own conscience.  However, when a private organization, even a private religiously-affiliated organization, performs a quintessentially governmental function -- such as certifying adoptive parents or placing children in foster care -- it should do so in a non-discriminatory fashion.  Having chosen to act in the state’s capacity, these agencies must be held to the same standard as if the state had itself performed the contracted activities.

Every adoption must be approved by a circuit court judge – a state actor – and adoption is therefore fundamentally a governmental function.  As entities responsible for evaluating the fitness of potential adoptive parents, adoption agencies are the gatekeepers to this governmental process.  They should not be permitted to close the gate on potential parents based on factors that are unrelated to their ability to be good parents, such as religion, sexual orientation, or disability.  Further, allowing adoption agencies puts the circuit judges who approve adoptions in the position of enforcing private agencies’ religious preferences.

            Moreover, most of the private agencies licensed to perform adoption services are also licensed for foster care services, including the placement of children with foster parents.  Again, this is unquestionably a governmental function because foster children are in state custody.  Discrimination limits the pool of foster parents available to these vulnerable children who are in desperate need of homes.  Indeed, allowing agencies to discriminate based on their religious beliefs may result in a child losing a placement with the most suitable family.

Religious freedom is not a license to deny vulnerable children loving parents just because those parents do not conform to a particular aspect of theological doctrine.  By running an adoption service, adoption agencies have entered the secular world—and must follow secular rules.