A Virginia court judge issued a recent decision against a challenge to that state’s Virginia Values Act (VVA) brought by two Christian churches, three Christian schools, and a pregnancy center.
Following the decision, Virginia Attorney General Mark Herring issued a statement declaring victory:
“Our landmark civil rights protections will remain in place, and Virginia will remain a place that is open and welcoming to all, no matter what you look like, where you come from, how you worship, or who you love. I was proud to support passage of the Virginia Values Act and am so proud of our work to successfully defend the law twice against legal attack. As CNBC recently confirmed when it named Virginia its ‘Best State for Business,’ inclusion and diversity make our Commonwealth stronger.”
Herring’s mention of having twice successfully defended the VVA referred to his previous win in federal court in a March 2021 challenge to the controversial act. After that earlier victory, Herring said this:
“Every Virginian deserves to live without fear of being discriminated against because of whom they love, what they look like, where they come from, or how they worship. Discrimination will never be tolerated in the Commonwealth and I will continue to do all I can to defend the Virginia Values Act and protect Virginia’s LGBTQ community.”
In the state’s brief to the federal court, Herring had claimed that the the VVA’s purpose originated from the fact that “Virginia’s elected leaders sought to protect the Commonwealth’s more than 300,000 LGBT residents from the type of discrimination that has long infected public life.”
Note well the fundamental claim justifying the VVA — the allegedly continuing “discrimination that has long infected public life.” Note, too, that in the federal court case brief, Herring admitted that in the nine months the VVA had at that point been on the books, not a single discrimination claim had been filed in state courts.
Now, let’s go to the challengers’ side of this case, who were represented by the Alliance Defending Freedom, the Arizona-based public interest law firm that specializes in religious freedom litigation and has to date compiled 13 Supreme Court victories in its efforts.
In the state court, the challengers pointed out that:
That “rather than protect values, the [VVA] forces people of faith to adopt a particular government ideology under threat of punishment. [The VVA] purports to forbid businesses and organizations from discriminating on the basis of sexual orientation and gender identity, but in practice it tramples on the free exercise and free speech rights of religious ministries like Plaintiffs.
“The [VVA] went into effect July 1, 2020, and now threatens the biblical foundations that plaintiffs were established upon because the act lacks any effective religious exemptions for these ministries. A day before signing [the VVA], the Governor [Ralph Northam] signed HB 1429, which requires the ministries and other employers that provide health insurance to cover medical treatment that promotes a certain ideology about gender and sexuality.
“Specifically, it mandates that if the ministries wish to offer health insurance to their employees, they must cover sex reassignment and ‘gender affirming’ medical procedures — actions that violate their religious convictions.”
In other words, it doesn’t matter whether the people of the churches, schools and pregnancy center are thus associated in part due to their commonly held religious beliefs — beliefs the practice of which is guaranteed by the First Amendment — the state has a law on its books that says no such right exists in the state of Virginia.
But wait a minute, the VVA hasn’t been invoked in even one claim of discrimination, even though, according to Herring, such discrimination has “long infected public life.” One wonders if the VVA was passed to protect individuals from a form of discrimination that isn’t actually a problem of such long-standing severity as Herring claimed.
Let’s compare that to what lies in wait for the churches, schools, and pregnancy center if they try to practice the religious freedom guaranteed to them by the First Amendment:
The VVA “puts the Ministries in an impossible position: They must either abandon the religious convictions they were founded upon, or be ready to face investigations, an onerous administrative process, fines up to $100,000 for each violation, unlimited compensatory and punitive damages and attorney-fee awards, and court orders forcing them to engage in actions that would violate their consciences …
“Even merely posting their religious beliefs on their own websites could subject the ministries to prosecution and exorbitant fines. These penalties could easily exceed a million dollars, ruin the ministries financially, and make continuing their Christian missions impossible.”
The issue on which the judges in both the state and federal courts decided against the challengers to the VVA concerned their “standing” to bring suit. In effect, the judges said the challengers had suffered no harm and therefore had no basis on which to challenge the VVA.
Put another way, in order to assure their right to exercise their First Amendment rights, the challengers must first endure the bureaucratic and legal nightmare of defending themselves against the VVA, a process likely to have catastrophic financial consequences for their activities regardless of the legal outcome.
In other words, the mere threat of prosecution under the VVA is a real obstacle to the full enjoyment of the rights and protection afforded by the First Amendment. That is called “soft totalitarianism” and it is at the heart of much of the Left’s agenda for America.