Gov. Terry McAuliffe (D) on Friday issued a bulletin to local social service divisions throughout the commonwealth that, following the legalization of same-sex marriage in Virginia, adoption between same-sex spouses is both legal and recognized as valid in the state.
The bulletin is a natural extension of marital rights that were previously denied to same-sex couples under Virginia’s constitutional ban on marriage, known as the Marshall-Newman Amendment. Both a U.S. District Court judge and the 4th Circuit Court of Appeals found the ban unconstitutional earlier this year, rulings that were cemented into place last week when the U.S. Supreme Court declined to hear an appeal of the case.
Prior to the legalization of marriage equality, under Virginia law, only a married heterosexual couple or an unmarried individual, regardless of sexual orientation, was able to adopt. Friday’s order clarifies that same-sex couples, whether married in Virginia or out of state, will be recognized as parents for the child or children in question, just as their heterosexual counterparts are. McAuliffe told social services directors that the state would be following up with more information after his office, along with the office of Attorney General Mark Herring (D), reviews all applicable statutes and regulations governing adoption, in order to ensure that all necessary amendments are made to fully recognize same-sex couples.
“Now that same-sex marriage in Virginia is officially legal, we owe it to all Virginians to ensure that every couple is treated equally under all of our laws, no matter whom they love,” McAuliffe said in a statement. “This historic decision opened the door to marriage equality, and now it is my sincerest hope that it will also open more doors for Virginia children who need loving families. By formally recognizing that same-sex couples can now legally adopt, we are more fully complying with the ruling in this important case, and sending the message once again that Virginia is open and welcoming to everyone.”
According to the ACLU of Virginia, same-sex couples will not only be allowed to adopt jointly, but to adopt the children of their legally married spouse, also known as a “second-parent adoption,” as long as the child has no other legal parent. Virginia law presumes that children born during a marriage to a spouse are considered the legal offspring of both spouses. The ACLU of Virginia says that those couples with children born before same-sex marriage was legalized on Oct. 6, 2014, should be able to get an amended birth certificate that lists both spouses as a legal parent.
Equality Virginia, the commonwealth’s major LGBT rights group, issued a statement praising McAuliffe’s directive.
“Equality Virginia applauds Governor McAuliffe for formally recognizing that same-sex couples now have the same rights as all other married couples in Virginia, including the right to adopt a child together,” said James Parrish, the group’s executive director. “For lesbian and gay couples who plan to or are already raising children together, the freedom to marry also means that they are able to better protect their children by providing them with two legal parents.”
However, same-sex couples will still face some of the discriminatory hurdles they faced when they were unable to get married. For instance, the General Assembly’s 2012 “conscience clause” bill, which was signed into law by former Gov. Bob McDonnell, still allows adoption or foster care agencies to discriminate against prospective parents on a number of traits, including sexual orientation, based on “religious convictions,” even if those agencies receive state funding. A similar bill, passed earlier this year, allows genetic counselors to refuse service to patients based on “deeply held moral or religious beliefs.” With Republicans controlling both chambers of the General Assembly, it is likely that next year’s legislative session could see the introduction of similar bills that would grant businesses or public accommodations the right to discriminate against same-sex couples by claiming religious objections to marriage equality.
Kirsten Bokenkamp, a spokeswoman for Equality Virginia, said the organization will be fighting any legislation that attempts to introduce a “conscience clause”-type exemption or that would allow discrimination against people for who they are or whom they love. Bokenkamp noted that the Family Foundation, a Virginia-based right-wing think tank that advocates for “pro-family” causes that has been very influential in lobbying Republican members of the General Assembly, has already called for such legislation.
In a statement on the organization’s website, Family Foundation President Victoria Cobb insisted that the fight over same-sex marriage is far from over, expressing hope that the Supreme Court will eventually weigh in on the matter. Cobb added, “[W]e will work with the General Assembly to ensure that, while same-sex marriage is legal in Virginia, the rights and freedoms of those who disagree with the redefinition of marriage are treated equally and are not discriminated against in their religious practice, education, business or employment.”
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