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Judge says churches haven't shown Virginia will punish them for violating new LGBTQ law

Self-censorship isn't enough for legal standing to challenge Virginia Values Act, according to court.

Updated: July 19, 2021 - 11:08pm

The Facts Inside Our Reporter’s Notebook

Christian ministries failed to convince a Virginia judge last week that they are suffering ongoing harm from a new state law banning employment discrimination based on sexual orientation and gender identity.

"Is there an actual controversy here?" Loudoun County Circuit Judge James Plowman asked the lawyer for Calvary Road Baptist Church, Community Fellowship Church, Community Christian Academy and pro-life ministry Care Net at the Friday hearing.

They had made "speculative claims" about how the Virginia Values Act (SB 868), which took effect about a year ago, would be enforced, the judge said. "There are not reasonably foreseeable actions to be taken against these [religious] institutions" from the language of the law itself.

The ministries had engaged in "undisputed" self-censorship and chilled speech, past and ongoing, in response to the crippling financial penalties available under the law, argued Denise Harle, senior counsel for the Alliance Defending Freedom (ADF). 

They have removed religious beliefs on "biblical marriage," sexuality and gender that presumably violate the law from their own websites, she said, adding: "That alone is enough" for the plaintiffs to show they have standing to bring an "ordinary pre-enforcement challenge seeking a declaration of what the law means."

Last fall, ADF challenged the law as a violation of the Virginia Bill of Rights and state Religious Freedom Restoration Act for forcing ministries to violate their beliefs. It cited the omission of "any effective religious exemptions" for ministries that require employees to affirm their beliefs.

They face investigations, $100,000 fines per violation, "unlimited compensatory and punitive damages" and court orders that force them to violate their conscience, ruining them financially and making their Christian missions "impossible," the complaint charged.

Another law (HB 1429), signed a day before SB 868, prevents ministries from obtaining health insurance that doesn't cover sex reassignment surgery and related transgender medical procedures, such as hormone therapy.

They are forced to hire employees that violate their beliefs and then, if they choose to provide health insurance, pay for employees' gender procedures, the suit said.

'Jaws of a trap' the government set

Judge Plowman characterized the harm the ministries have suffered as "self-inflicted" rather than forced by the year-old law. "Adultery is on the books, too," he said: "You've got to have a reasonable possibility of prosecution" to obtain legal standing.

Harle and Plowman mentioned a declaration filed by Attorney General Mark Herring's office, but disagreed over its implications.

The original May 13 declaration by Herring's civil rights section chief, Thomas Payne, said his office "has not received, filed, or investigated any complaints against religious institutions (including houses of worship, schools, and nonprofit organizations)" under the law in its first 10 months on the books.

Herring's office cited this purported non-utilization of the law against religious institutions to argue that the plaintiffs can't show they would ever be targeted by it. But it conceded that Herring's office may bring actions in cases involving a "pattern or practice" of discrimination under the law.

In a May 27 filing, Payne disclosed that his declaration incorrectly said his section had not "received" any complaints under the Virginia Values Act. It had actually received 10 complaints in the law's first five months, seven related to employment discrimination, Payne said, and referred those to the U.S. Equal Employment Opportunity Commission.

In oral argument Friday, Harle said the "pattern and practice" language, in tandem with the early-stage investigations by Payne's section, confirm that the ministries are a likely enforcement target under a law "created out of an animus" against their beliefs.

The 4th U.S. Circuit Court of Appeals, which has jurisdiction over Virginia federal courts, recently said state laws are presumed to be enforced if state officials "don't disclaim an intent to enforce a law," Harle said. "Plaintiffs are sitting in the jaws of a trap that the government has set."

Assistant Solicitor General Jessica Samuels sought to distinguish that 4th Circuit decision, which concerned abortion providers challenging a North Carolina ban on pre-viability abortions, from the lawsuit against the Virginia Values Act. 

Even though North Carolina had not enforced abortion restrictions against providers since 1973, when the Supreme Court legalized abortion nationwide, the appeals court rejected the state's claim that abortion providers lacked standing because "they do not face a credible threat of prosecution" under the 2015 amendments to abortion law.

"Establishing standing does not require that a litigant fly as a canary into a coal mine before she may enforce her rights," the 4th Circuit said.

This is a "fundamentally different situation," Samuels argued, with a new state law that has never been applied and has yet to be interpreted by a court. Plaintiffs have the burden to demonstrate their standing, and they can't do it by "taking a position and then challenging the government to dispute it."

Judge Plowman asked Harle to cite "specific adverse claims based on present" facts. The plaintiffs' lawyer said ministries had long engaged in the same conduct — publicly sharing their religious beliefs on marriage, gender and sexuality — and while some had stopped in fear of the law, others continued and could now face ruinous fines at any time.

This theory of standing would allow "any plaintiff to plead their way into court" without current facts, Assistant Solicitor General Jessica Samuels told the judge.

Plowman agreed that Harle's argument would open a "huge barn door" to plaintiffs, and he rejected self-censorship and chilled speech as evidence of present harm, dismissing the claims against the Virginia Values Act.

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