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Just two months before leaving office, former Governor Tim Kaine left Virginians an unwanted present in the form of proposed changes to adoption guidelines for private agencies (see the Washington Post Virginia Politics Blog). These proposed regulations — by a Social Services Board still dominated by Mr.Kaine’s appointees — slowly working their way through the process, seek to force private adoption agencies to place children in foster care or for adoption with parents irrespective of faith or sexual orientation. It would force faith-based adoption agencies to either abandon their principles or cease providing adoption services (as did Catholic Charities in Massachusetts, after more than 100 years, when that state’s Supreme Court imposed such regulations by judicial fiat).

The proposal under discussion here goes far beyond any policy currently in Virginia law. The Virginia Code clearly details who is eligible to adopt. In § 63.2-1201.1, it plainly states:

Nothing in this section shall be construed to permit any child to have more than two living parents by birth or adoption, who have legal rights and obligations in respect to the child, in the form of one father and one mother.

There is no mistaking Virginia’s intent. The current regulatory proposal, which includes prohibition of discrimination based on sexual orientation, contradicts the intent of the General Assembly.

Nondiscrimination policies that include sexual orientation, whether enshrined in law or implemented through internal constructs, and regardless of their legal weight, highlight the inevitable and unavoidable clash between the unalienable fundamental right of religious liberty and the postmodern era of sexual freedom. While one may agree or disagree with the actions of individuals or private organizations that express their faith in these ways, their fundamental right to do so is at risk with these proposed regulations. Faith-based family organizations have assisted children for decades without unnecessary intervention by government entities. It is very clear that homosexual special interest groups have no concern with preserving religious liberty in pursuit of their political agenda.

Upon learning about these proposed regulations weeks ago, The Family Foundation immediately contacted the governor’s office. At that time, we were assured that Governor McDonnell does not support the current non-discrimination proposal and the current proposal would not stand. To ensure our voice was known where it needed to be, we submitted our official public comment and encouraged pastors to do so as well. After the public comment period closed, Governor Bob McDonnell publicly weighed in, telling the Washington Post:

I know I had said during the campaign that I would essentially keep our adoption laws — which I think are good — the way they are now. … I don’t think we ought to force Catholic Charities to make [the proposed regulations] part of their policy or other similar situated groups. Many of our adoption agencies are faith-based groups that ought to be able to establish what their own policies are. Current regulations that say you can’t discriminate on the basis of race, color or national origin I think are proper.

Since then, concern has mounted based on the circulation of incorrect information stating Governor McDonnell must act by April 15. However, this is an incorrect interpretation of a section of the Code (§ 2.2-4013) that details the time frame for the Notice of Intended Regulatory Action stage, not the proposed stage. The public comment website shows that the adoption regulations are completing the proposed stage, not the NOIRA stage.

A chart published by the Virginia Department of Planning and Budget is extremely helpful in understanding how the circuitous regulatory process works: The proposed adoption regulations currently are in the bottom box of the middle column (not the second box of the first column). Correct reading of Virginia Code and regulatory process shows that the Board of Social Services has no less than 15 and no more than 180 days from April 1 (April 16 through September 28) to adopt the proposed regulations and submit them for full executive branch review. As displayed in column three of DPB’s chart, the proposed regulations must then pass several more reviews prior to final acceptance, including reviews by DPB, the corresponding cabinet secretary, possibly by the attorney general (see Attorney General Ken Cuccinelli’s stated disapproval in the Washington Post) and the governor, then go through at least one more public comment period. The Department of Social Services already has amended the regulations and will present these changes to the Board of Social Services at an upcoming meeting. During any of these stages, the governor can reject or make changes to the proposal.

This adoption proposal, which tramples religious liberty, is a significant overreach through regulation into uncharted waters prohibited by Virginia Code and Virginia Constitution and will not be tolerated. The Family Foundation has been actively involved in seeing that these proposed regulations are not adopted and will continue to monitor the issue very closely.

Early last week, the Court of Appeals of Virginia rendered a decision in a custody case and used the Marriage Amendment as a key element in their decision. (Damon v. York, see opinion here).

The case should sound familiar. Two women, one of whom had a child from a previous heterosexual marriage, lived together in Virginia. They then “briefly traveled” to Canada and were “married” under a Canadian law authorizing same-sex marriage. Eventually, there are accusations of child neglect and investigations by the Department of Social Services. The child involved was placed in the shared custody of the natural father and maternal grandmother. The “marriage” quickly dissolves, and a battle over visitation ensues.

Evidence was presented to the Virginia Beach Juvenile and Domestic Relations Court and visitation was denied to the former girlfriend of the biological mother. She appealed, and the case was accepted by the Court of Appeals.

In its decision, the court agreed with the lower court, arguing essentially that the former girlfriend had no “legitimate interest” in receiving custody. In addition to other legal reasons, the court decided that because the Canadian “marriage” was “void in all aspects” under Virginia law, it could not grant any visitation. It cited the Marriage Amendment to the Virginia Constitution, ratified by voters in 2006, and the Marriage Affirmation Act, passed by the General Assembly in 2004, as the binding law.

Of course, almost nothing of this case was reported in the Mainstream Media. It is very interesting that the media has no time to report the standing of the Marriage Amendment when it is upheld as binding law in a case. Yet, as in the case of Lisa Miller and her little girl Isabella, it is mentioned in every newspaper despite its absence in the courts’ decisions.   

In this latest custody battle, the Court of Appeals pointed out that “the interest of parents in the care, custody and control of their children — is perhaps the oldest fundamental liberty interests recognized by the Court.” Unfortunately, in a nation where words like “parents” and “family” and “marriage” are redefined, such legal standards are undermined every day. For example, the plaintiff seeking visitation used contrived phrases, such as “quasi-stepparent” and ”functional equivalent of a family member” to try to force herself into custody where she had no legal standing. With such nonsense, it’s amazing the case got this far up the legal ladder. Fortunately, the court got the decision right.