Carmichael Religious Liberty Contest With Virginia - Initial Report of January 15, 2009 Hearing

The January 15^th hearing on the matter of a temporary injunction for the Plaintiff in Carmichael v. Commonwealth went as well as could be hoped. The Judge was very gracious. She treated me with due respect and was careful to hear me out on each point.

     It was very difficult work preparing for the extremely important hearing. This issue has been a losing proposition for everyone who has brought the matter before a court in the last twenty years. Our uphill battle is on a steep slope. Taking the case myself, without the aid of a professional litigator, was not my preferred method but it is the path that the Lord has presented to us. I laid as much evidence as I thought proper on the scale. I had some more evidence, but it was probably not necessary at this stage.

    The judge noted on the record that I had witnesses who could attest to certain things that the opposition objected to at the hearing.

    The judge possibly hinted at having an opinion on the matter but said that I had presented many things to her that she needed to read. She also needed to ‘Shepherdize’ some of the case law to make sure that it was sound. She told us that she would issue the ruling as soon as she could.

    I apologize for not getting news out earlier. I am still overwhelmed by the administration, that is necessary in my ministry, that was backlogged due to my working on this case. I have not caught up yet, but I need to get the news out to you in this cursory form to give you a sense of how things went. Of course, the big news will come when we receive the Court’s ruling.

    We presented the following points, to contradict the Defendant’s assertions, by presenting evidence in law with copies of the Virginia Code and Virginia and United States case law.

1. The Attorney General, Robert McDonnell, is rightly named as a person upon whom injunction will lie, on the basis of Va. Code §2.2-511

2. Va. Code §46.2-300 does not rise to the level of a “compelling” governmental interest to trump religion or the Plaintiffs motion for injunction since it provides for exceptions for reasons other than religion.

3. Va. Code §46.2-320 does not rise to the level of a “compelling” governmental interest to trump religion because it says “The Department may deny (driver’s license application for the reasons in this case).” It does not say “must deny….”

4. Va. Code §46.2-323 does not rise to the level of a “compelling” governmental interest to trump religion because the only mandate in that code says “The Department shall not issue a license” for only those things related to residency requirements rather than those things in the first part of paragraph B. Even with that mandate that the Department “shall not” issue a license, it says that the Commissioner can make a waiver on the basis of a good cause shown.

5. Section 666 of the U.S. Health & Human Services code cannot rise to the level of a “compelling governmental interest.”

State Va. law and public policy takes a strong stand for the preservation of freedom of religion on the basis of Va. Const. Art. I, §16 and Va. State Codes §57-1, §57-2, §57-2.01, §57-2.02.

Va. Code §2.2-616 shows that Va. State law and public policy takes a strong stand against violation of federalism and the intrusion of federal acts that go against Virginia law and policy that protects its citizens.

42 USC §666(d) indicates the requirement is waiverable by the Secretary of Health & Human Services.

42 USC §666 must be mitigated by the 42 USC §2000bb, et seq., the federal Religious Freedom Restoration Act.

Other states grant waivers on the basis of religion, §666 notwithstanding.

Printz v. United States citing New York v. United States, says “The Federal Government may not compel the States to enact or administer a federal regulatory program.” 521 U.S. 898, 926 (1997)

6. The government cannot prevail because they cannot sustain the burden required by Va. Code §57-2.02 to prove a “compelling” governmental interest to the “person” of the Plaintiff by the standard of “clear and convincing” evidence.

Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, 521 U.S. 507 (2007)

Bowen v. Roy, 476 U.S. 693, (1986)

Callahan v. Woods, 736 F.2d 1269 (1984)

Stevens v. Berger, 428 F. Supp. 896 U.S. Dist. Ct. E.D. N.Y (1977)

Horen v. Commonwealth, 23 Va. App. 735 (1997)

Ballweg v. Crowder Contracting Co., 247 Va. 205(1993)

Perry v. Commonwealth, 3 Gratt (Va.) 632 (1885)

7. Injunction is warranted. Thompson v. Smith, 155 Va. 367 (1930). Va. Code §46.2-320 fails to fix the principles by which Department may deny an application in an unconstitutional delegation of legislative power or else the government officer abused their discretion by willfully ignoring the positive laws protecting religion. The Plaintiff has a property right in the use of his automobile in the ordinary course of life, ministry and business in the pursuit of happiness and safety. Waiting to defend a charge of driving without a license is not a suitable alternative.

8. A State can not grant a privilege subject to the agreement that the grantee will surrender a constitutional right, even in those cases where the State has the unqualified power to withhold the grant altogether, and where such a condition is imposed upon the grantee, he may ignore or enjoin the enforcement of the condition without thereby losing the grant. Alexandria v. The Texas Co., 172 Va. 209

Now we just obey and trust.

David Alan Carmichael