Rights Are Not Privileges That Can Be Blocked by Sovereign Immunity

27th January, 2017
Daily Report
Sara Totonchi

The Georgia Supreme Court is poised to make a decision that will affect all Georgians and our ability to protect our rights as guaranteed by the Georgia State Constitution. The legal concept at issue—that the state cannot be sued, unless the state consents—is called sovereign immunity. In a case that is currently under consideration, the state is urging the Georgia Supreme Court to apply this concept more broadly than ever before to halt laws from being challenged.


There are several problems with applying sovereign immunity to claims that the state is violating the Georgia Constitution.


First, if the state has the authority to decide when it can be sued, then the state has the power to pick and choose which constitutional rights it will allow Georgians to enjoy—converting our constitutional rights into unenforceable privileges.


Second, to bar lawsuits against the state that seek to stop the enforcement of an unconstitutional law will do nothing to further the historical purpose of sovereign immunity. The original purpose of sovereign immunity was to protect the state's coffers from large monetary awards. The lawsuits at issue now, however, seek only to prevent the state from violating our constitutional rights. The state's fiscal bottom line is not at issue. Sovereign immunity has never prevented citizens from suing to stop the enforcement of an unconstitutional law. And it shouldn't prevent citizens from doing so now.


Third, the Georgia Constitution plays the important role of limiting state powers. But broadening sovereign immunity to cover all constitutional claims against the state would erase some of these limitations. In many instances, Georgians would lose the ability to ask a judge to declare a law unconstitutional, freeing the state to pass unconstitutional measures without having to worry about ever facing judicial review.


If the Georgia Supreme Court were to decide that the state cannot be sued, then we would lose the ability to protect our rights by asking a court to declare the action of the state unconstitutional or asking the court to order the state to not enforce an unconstitutional law or regulation. Here are some examples of what could happen:


• For example, if the General Assembly made it a felony to publish articles critical of the General Assembly, a reporter would face an unfair choice: relinquish her right to free speech or exercise that right and face criminal prosecution.

• If the General Assembly were to criminalize gun ownership, then gun owners would have to give up their guns or face criminal prosecution.

• If the General Assembly were to create a state church and require attendance, the citizens would have to attend the state church or face punishment—even if such attendance violated their faith.


Through the Bill of Rights in Article I of the Georgia Constitution, as citizens of Georgia, we have specifically reserved to ourselves numerous rights, including the rights to due process, equal protection, free exercise of religion, free speech, a free press, bear arms, and access to courts.


As Georgians, we must be able to exercise our right to access the courts so we may protect our constitutional rights.

Our rights are not privileges.


Sara Totonchi

Southern Center for Human Rights


(The Southern Center for Human Rights, along with GeorgiaCarry.Org, the Goldwater Institute, and the Anti-Defamation League, has filed an amicus brief in Lathrop et al. v. Deal, Governor et al.)