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January 23, 2020

Today, the ACLU of Virginia Executive Director Claire Gastañaga testified in front of the House Committee on Health, Welfare and Institutions, Social Services subcommittee in support of HB 1051, which would repeal provisions that allow adoption and foster care agencies to turn away prospective parents on the grounds of religious freedom. Below is her statement:

"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 their religion (or not to worship) consistent with the demands of their own conscience. Nonetheless, when a private organization, even a private religiously affiliated organization, performs a quintessentially governmental function -- such as certifying adoptive parents or placing children with foster parents -- it must do so in a non-discriminatory fashion in the same way as the government would if providing those services directly. 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 activities.

"Every adoption must be approved by a circuit court judge – a state actor – and adoption is therefore fundamentally a governmental function. 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 marital status, race, religion, sexual orientation or gender identity, national origin or disability.

"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 – they are “our” children. State law should not enable policies or actions or fund agencies that use factors other than the best interest of the child to limit the pool of foster parents available to these vulnerable children who are in desperate need of forever homes or to refuse to serve any child. Allowing agencies to make decisions regarding children in need of foster care on any basis other than the child’s best interests may result in a child losing a placement with the most suitable family.

"It is time we return to the time when our adoption and foster care agencies were held to one overarching standard – making decisions in the best interest of children. This legislation would do that by requiring any agency that wishes to perform what are essential government functions to live up to the same legal and constitutional standards that the government itself would have to meet. Choosing to offer or to contract to offer what are services that would otherwise be governmental functions means choosing to comply with government rules, and child placing agencies that do not wish to do so should not be licensed or funded by any public agency."

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