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Virginia Adoption Agencies Can Legally Discriminate Based on Sexual Orientation

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By HVpolitics on December 16, 2011

There are 81 private child-placement agencies in Virginia, and 42 of them are faith-based. At least 1,200 children statewide are awaiting adoption, and nearly 6,000 of them are in foster care.

Yet, the commonwealth just made it legal for licensed adoption agencies and foster facilities to discriminate on the basis of — get a look at this list — a potential parent’s “sexual orientation, religion, age, gender, disability, political beliefs, or family status.”

Virginia’s new motto might as well be “Moving Backwards.”

Former Democratic Gov. Timothy Kaine’s administration added an anti-discrimination provision in 2009, but that didn’t become a contentious issue for public debate until this year, when conservative legislators and groups complained.

The Virginia State Board of Social Services voted 7-2 back in April to strip the protections barring adoption agencies from discriminating against prospective parents. The rules were finalized Wednesday by a 5-1 vote and won’t take effect until May 1, 2012.

Virginia allows married couples and single people to adopt or become foster parents, but bars unmarried couples from doing so.

If Newt Gingrich and Kim Kardashian have taught us anything, it’s that opposite sex married couples are not always the face of loving stability.

American Civil Liberties Union of Virginia Legal Director Rebecca Glenberg branded the decision “terrible,” adding litigation is “under consideration” and a strong possibility.

“It disserves children (by) allowing adoption agencies to exclude a wide range of potential adoptive parents,” she told MSNBC.

Many of the faith-based agencies said the rules put in place by Gov. Kaine would trample their religious freedom. As much as it seems wrong, private, faith-based adoption agencies should be allowed to do as they see fit. The new rules passed by the board also apply to non-private adoption agencies.

Virginia Governor Bob McDonnell and the state’s attorney general, Ken Cuccinelli, who both took office in 2010, opposed the non-discrimination changes proposed by Kaine. As Cuccinelli said in a letter to the board, sexual orientation is not a protected status.

At the federal level, the protected classes are generally race, color, religion, national origin, and sex. Not sexual orientation, as Cuccinelli notes. On a legal level, removing the provisions barring discrimination is not the same thing as authorizing it. Basically, what Virginia is now doing is removing the additional protections passed by Kaine’s administration and rolling them back to constitutionally protected classes.

Doesn’t make it morally or ethically right, but legally there’s nothing technically wrong with what has happened. If this change is just to prevent the gays from adopting, it feels like using a nuclear bomb to kill a single terrorist. Just have the courage to discriminate.

This might be the first time the phrase “Think of the children!” can be used un-ironically. It’s also safe to assume this story is far from over once it begins its way through the courts.

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