Religious Liberty Needs Open Courtrooms to Survive



This afternoon, the House Judiciary Committee is holding a hearing on ”The State of Religious Liberty in America.” Among the witnesses will be Colby May, Director and Senior Counsel of the Washington office of the American Center for Law and Justice (ACLJ), one of the premier pro-religious liberty groups in America. Colby May goes to court all the time to protect religious liberty, taking advantage of the 7th Amendment rights protected by the Founding Fathers to enable Americans to exercise our faith without infringement by the federal or state governments. His testimony recognizes that, ”The courts and the judges that preside over them will largely determine the strength of America’s religious liberties.” And he is testifying about the recent instances in which courts have failed to protect our rights against a college administrator, such as has happened at the University of California in the Christian Legal Society v. Martinez case.

I hope Members and witnesses remember that to survive, religious liberty needs open courtrooms. Any measure to restrict the ability of Americans to file a lawsuit in court compromises our ability to defend our religious liberty. So, for instance, the Judiciary Committee’s original bill to toughen sanctions against attorneys under the Federal Rules of Civil Procedure could have resulted in a nonprofit’s or small-sized law firm’s refusal to take on a religious liberty lawsuit because of potential attorney sanctions. That’s why the committee added a rule of construction to exempt lawsuits over constitutional issues from application of the proposed sanctions. Similarly, the application of the Supreme Court’s decisions in the Iqbal and Twombly cases could result in the dismissal of a religious liberty case that would otherwise proceed to the discovery, if the attorney can’t provide the threshhold level of documentation needed to meet the stricter pleading standards enunciated by the Court in those cases. A plaintiff seeking to protect religious liberty rights against an overbearing college or business might find it difficult to meet the standards if witnesses to the behavior at issue are afraid to come forward without a subpoena.

The Founding Fathers didn’t differentiate between lawsuits to protect constitutional rights and lawsuits for negligence; they designed the civil justice system for all causes. The “tort rerform” movement could continue to spark conflict with social conservatives over the access to civil justice, unless Americans tell Congress and state legislatures to keep courtroom doors opened.