Rob Boston of Americans United writes about a new bill proposed in the Tennessee state legislature that would make it considerably harder to bring church/state suits to court. State Sen. Randy McNally (yeah, his parents should be beaten for that one) introduced SB 965. The bill does two rather contradictory things:
As introduced, affords local governments an opportunity to implement a written policy governing invocation practices before a lawsuit is filed on establishment clause grounds; requires a plaintiff send notice of the alleged violation to the local government before filing a lawsuit; prohibits repetitious communications sent to local governments with intent to induce the government to forgo a lawsuit.
So if you want to sue a school or local government for violating the Establishment Clause, you have to write to them first and give them a chance to fix it (which is not a bad idea, and I don’t know of any organization involved in such matters that doesn’t already do that), but you better not write to them multiple times. That would be a “repetitious communication” and that’s also illegal. Rob Boston responds:
Just to be clear, it’s Americans United policy to send a letter any time we believe a government entity is in violation of the First Amendment. Our hope is that by explaining where local officials have gone wrong, we can persuade them to make changes and settle the matter outside of court.
We do that because it’s the right thing to do. It just makes sense. But there is nothing in federal law that requires us to do it. I don’t believe a state legislator in Tennessee can draft new rules for how cases are filed in federal courts.
They can’t. This would be struck down in a heartbeat. The federal courts are bound by the Federal Rules of Civil Procedure, not by state law.