Our defense against the Left’s assault on free speech and religious liberty continues, virus or no virus. We told you about how we filed lawsuit on behalf of our client, Hadassah Carter. She is a realtor who has been being harassed, targeted, and discriminated against by the Virginia Real Estate Board for including a Bible verse – John 3:16 – on her website and phrases like "Jesus Loves You" in her email signatures.
Every lawsuit in Virginia is started with the filing of a Complaint at the local court. Then the person being sued, in this case the Virginia Real Estate Board, files an answer or a motion to dismiss.
The Virginia Real Estate Defense Board (VREB) has now filed its motion to dismiss and a brief arguing that the government cannot be sued for violating your constitutional rights.
The basis of the argument is a legal doctrine called sovereign immunity. This is the idea that a government cannot be sued without its consent. The VREB argued that because the Virginia legislature had not consented for it to be sued for violating a constitutional right, our client’s case should be dismissed.
The argument has, however, a slight problem. A series of decisions from both the United State Supreme Court and the Virginia Supreme Court say that sovereign immunity does not apply to constitutional claims.
In its self-appointed mission to take away your constitutional rights, the Left did not let either the facts or the law deter it.
For example, on the facts, our client was never charged with discrimination but leftist bureaucrats insisted that Hadassah’s display of “God so loved the world He sent His only Son” meant that she would not serve Muslims or Buddhists, when she in fact had Muslim and Buddhist clients.
As for the law, if the Government cannot be sued for violation of a constitutional right because it does not want to be, well, then no constitution would mean much. Any government would have the means to violate your constitutional rights with impunity. This is why sovereign immunity does not apply to a constitutional claim. Nobody can just sue a state like they would sue you or I, the government would need to consent (such consent is called a tort claims act); but for violation of constitutional rights, consent is not required.
Not content with the argument that when the government wants to violate your free speech and religious liberty rights, you should not be able to do anything about it, the VREB made a second argument about standing.
Standing is the legal rule that nobody can sue if they weren’t harmed by the person they sue. To give an example, if Larry hits Moe, then Moe could sue Larry, but Curly would not be able to sue Larry for hitting Moe. (The rule is more complex than this but this example is good enough for our purposes.)
Hadassah is challenging the constitutionality of a presumption in a statute. A presumption which was the basis of why she was investigated by the VREB and then forced to choose between her job and her conscience and that limits what she can say in her advertisements about herself.
The VREB then made the argument that neither the investigation nor the job loss – brought about because it insisted her employer take down all religious statements – are enough harm to give her standing.
It has a certain: “We can punch you but you can’t punch us back” flavor.
Of course, this ignores case law that says a “chilling effect” on free speech, i.e. making somebody afraid to say something, is enough to give standing for someone to sue for violation of their free speech rights.
So, on March 30th, we filed a brief in defense of Hadassah and made, in legalese, the arguments that we have touched upon above.
Keep us and her in your prayers. We will keep you informed as our ongoing case in defense of Hadassah goes to court.
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