by Emilio Jaksetic
Virginia’s statutory adoption conscience clause prohibits any requirement that forces private child-placing agencies to violate their religious or moral convictions when participating in the placement of a child for foster care or adoption. Virginia Democrats have advocated repeal or nullification of the clause on the grounds that the clause permits unequal, discriminatory treatment.
In February 2021, the House of Delegates passed HB 1932 to repeal the conscience clause despite objections from Republicans and Catholic adoption agencies. (See the article in The Virginia Star.) The bill was referred to a Senate Committee on Rehabilitation and Social Services, where it died. (View the legislative history.)
The list of Virginia Democrats who support repeal or nullification of the adoption conscience clause is extensive.
- Former Governor Terry McAuliffe, running for Governor this year, advocates repeal of the conscience clause.
- Delegate Hala S. Ayala, D-Woodbridge, running for Lt. Governor this year, was a patron of HB 1932.
- All Virginia Democrats in the U.S. House of Representatives voted for H.R. 5, the Equality Act, which, if enacted into law, would have had the practical effect of nullifying any state law that has a conscience clause like Virginia’s.
- Attorney General Mark Herring, running for re-election this year, signed a joint letter to the U.S. Senate urging passage of H.R. 5, the Equality Act, which would have the practical effect of nullifying Virginia’ adoption conscience clause.
I have not found any recent statements by Senators Mark Warner and Tim Kaine about their positions on current H.R. 5, the Equality Act. However, both have supported an earlier version of such legislation. It seems reasonable to infer they would support the current H.R. 5 if it advances in the Senate.
The support by Virginia Democrats for repeal or nullification of Virginia’s adoption conscience clause faces a constitutional obstacle posed by the Supreme Court’s recent decision in Fulton v. City of Philadelphia (June 17, 2021).
In the Fulton case, the Supreme Court reviewed the decision of the City of Philadelphia to refuse to refer children to Catholic Social Services (a foster care agency) because CSS would not certify same-sex couples to be foster parents due to CSS’s religious beliefs about marriage. In support of its refusal to deal with CSS, the City of Philadelphia cited the non-discrimination provisions of City contracts and a Fair Practices Ordinance. The Supreme Court held that the City of Philadelphia’s action violated the Free Exercise Clause of the First Amendment of the U.S. Constitution. Although there were three separate concurring opinions, no Supreme Court Justice dissented from conclusion that the City of Philadelphia violated the Free Exercise Clause of the First Amendment by demanding that CSS certify same-sex couples as foster parents despite its religious beliefs about marriage.
Significantly, the Supreme Court decision in the Fulton case did not involve a claim of religious liberty under a conscience clause statute. The Supreme Court upheld a claim of religious liberty under the First Amendment of the U.S. Constitution. So, even if Virginia Democrats continue to pursue — and achieve — repeal or nullification of Virginia’s adoption conscience clause, private child-placing agencies operating in Virginia still would be able to invoke the First Amendment to protect themselves from state-imposed requirements that would force them to violate or act contrary to their religious convictions and beliefs.
Virginia Democrats face a dilemma:
Should they continue to pursue repeal or nullification of Virginia’s adoption conscience clause despite the Supreme Court decision in the Fulton case (which recognizes the exercise of religious conscience even without a statutory basis)?
or…
Should they reconsider their opposition to Virginia’s adoption conscience clause in light of the constitutional principles enunciated by the Supreme Court in the Fulton case?
Which course of action Virginia Democrats take will be very revealing about their position on religious liberty under the U.S. Constitution, as well as their respect for constitutional principles. Virginians should ask Democrats running for office this November to state clearly and unequivocally their views about Virginia’s adoption conscience clause in light of the Fulton decision.
Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.
