Virginia ‘conscience clause’ allows discrimination in adoption
Virginia Gov. Bob McDonnell signed a bill into law this month that will allow state-subsidized adoption agencies to reject potential parents because of their sexual orientation.
Virginia will join North Dakota and become the second state to allow a “conscience clause” when the law takes effect on July 1.
The conscience clause bill, Senate Bill 349, states that no private child-placing agency shall be required to consent to the placement of a child in foster care or an adoptive home if such placement would violate the agency’s “religious or moral convictions or policies.”
The bill codifies a State Board of Social Services decision from 2011 that refused to add protections to forbid discrimination in adoption on the basis of sexual orientation, age, gender, political beliefs, religion, disability or family status (i.e., single parent, person in unmarried couple, divorced person, etc.). Private agencies are only prohibited from discriminating against potential parents based on race, color or national origin, as is required by federal law.
It was already illegal for same-sex couples or unmarried couples to adopt jointly in Virginia, meaning that only one person in such a couple could have legal custody.
Advocates say the law will allow faith-based agencies like Catholic Charities to exercise their religious freedom, but opponents say it amounts to state-sponsored discrimination and will prevent children from finding permanent homes.
According to a report from UCLA’s Williams Institute, about 2,100 adopted children are being raised by LGBT individuals or couples in Virginia. The report, which was presented in opposition to SB 349, said that 40,000 lesbians and gay men might be prospective adoptive parents in Virginia.
One adoptive mother in a same-sex partnership in Virginia told The American Independent that she and her partner were considering adopting a child into their relationship, but that recent legislation made them more hesitant.
“This law could very well deny many children who need happy, healthy, loving homes and role models … stable relationships and the opportunity to have them,” said the mother, who requested anonymity. “Even prior to this law, there were too many children languishing in the system, needing homes. Now, my fear is that it will only get worse.”
The conscience clause allows faith-based organizations to discriminate based on their convictions, but it also allows any other private agencies to do the same. As such, any of Virginia’s 77 private adoption agencies could reject potential parents because of their sexual orientation.
“I do have faith that there will be adoption agencies out there that have the great wisdom and love in their hearts to do the right thing and realize that loving, stable parents can be same-sex or heterosexual,” the mother said. “The experiences that adoptive same-sex parents have with these agencies going forward will be a true indicator of the effects of this bill.”
LGBT rights advocates condemned the law.
“We’re very disappointed that the governor signed this legislation,” said James Parrish, executive director of Equality Virginia, a LGBT advocacy group. “Virginia leads all states in the percentage of children who age out of foster care. We should be working on policies that promote the best interests of the child.”
According to Virginia Performs, a government website that monitors state agencies, 32 percent of youths in foster care turned 18, thus aging out of the system, before finding a permanent home. Virginia also ranked last for average wait time, with 18.6 months between termination of custody from the original parents and adoption.
There are currently 1,321 children in Virginia with the goal of adoption, and 2,150 children were adopted during the last fiscal year, said Joron Moore-Planter of the Department of Social Services. Both public and private agencies can apply for state funding for adoption services through grants, Moore-Planter said.
Parrish said he also worried about LGBT youth in foster homes who may suffer because of the conscience clause.
Because the law prohibits the state from denying funds to agencies that follow their moral or religious convictions, private agencies could force LGBT youth to receive “ex-gay” therapy or remove them from LGBT support groups without punishment, Parrish said.
The decision to pass the conscience clause came largely along party lines. In the evenly divided Senate, the legislation passed 22-18, with Democratic Sens. Charles Colgan and Phillip Puckett joining all 20 Republicans to support the bill. It easily passed the Republican-controlled House and McDonnell, a Republican, signed it into law.
“This is a tremendous protection for our religious freedom here in Virginia,” said Victoria Cobb, president of the Family Foundation of Virginia, a conservative lobbying group. “Last year, there were folks that essentially sought to shut down some of these agencies by requiring them to go against their convictions.”
Cobb said that state and federal law called for religious freedom for private entities and that adoption agencies should be no different, even though they receive public funding.
“We believe you shouldn’t have to check religious freedom at the door in order to partner with the state to provide these kinds of services,” Cobb said.
But the American Civil Liberties Union of Virginia disagreed. In a statement, ACLU of Virginia said it supported and often fought for religious freedom, but did not feel it should override equal rights in the case of publicly funded adoption agencies.
“The ACLU is sensitive to the important constitutional rights of religious liberty and strongly advocates for the right of each religious institution to practice its own faith,” the ACLU statement said. “However, when a private 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.”
Virginia is for lovers, sometimes
The conscience clause represents another example of recent legislation that has left some gays and lesbians feeling unwelcome in their home state.
After McDonnell signed the bill into law, gay Christian activist Mel White of Lynchburg, Va., wrote an opinion piece in the Lynchburg News & Advance announcing that he and his partner had decided to leave Virginia.
“We thought that in 10 years our witness would have helped in some small way to change Virginia for the better,” said White, the founder of Soulforce, a group that promotes nonviolent resistance to support LGBT causes. “In fact it’s gotten worse. And though we are genuinely sad about leaving Lynchburg, it’s much easier to move knowing that members of the Assembly, the governor and a majority of the voters of Virginia have spoken. Gays and lesbians are not welcome here.”
In addition to the conscience clause legislation, White mentioned the state’s 2006 marriage amendment, which was approved by 57 percent of voters. The vote banned same-sex marriage in Virginia’s constitution and also prohibited anything “that intends to approximate the design, qualities, significance, or effects of marriage.”
“Of all the states with constitutional amendments prohibiting marriage equality, Virginia became the most strident and mean-spirited,” White said.
Parrish, from Equality Virginia, said the movement against equal rights for the LGBT community was led by a small fraction of Virginians that didn’t represent the true views of the citizenry.
“We’re up against a very concentrated effort from a small number of interest groups,” Parrish said, “but the majority of Virginians believe that LGBT groups should be protected from discrimination.”
Parrish cited workplace discrimination laws that would protect potential employees from bias based on their sexual orientation. Despite reported support from a significant majority of Virginians, Parrish said, the House of Delegates has consistently refused to even discuss the bills on the floor.
During the 2012 session, legislators proposed seven bills that would have prohibited discrimination based on sexual orientation in the workplace. None made it out of committee.
Parrish said Equality Virginia would work with its allies to push for changes in the General Assembly next year and also examine the details of the conscience clause to see if it violated the Constitution.
“There are members of the General Assembly who would like to create a climate where LGBT people would feel more welcome elsewhere and move,” Parrish said. “But we’re not going to move. We’re going to continue to work to change the laws and push for policies for equal protection.”