Portland, Oregon Civil Litigation Defense Attorneys - Kaempf Law Firm PC

A Blog by John Kaempf

Churches and Religious Schools Should Consider Having a Lawyer Review Their State’s Constitution and the State Appellate Cases Construing It To See If They Have Legal Protections Against Lawsuits Beyond Those Provided By The U.S. Constitution.

All 50 states have their own constitution. Religious entities should consider having a lawyer check the constitution of the state where they are located concerning its free exercise of religion and free speech protections, as well as state appellate cases interpreting these clauses. U.S. Supreme Court cases construing the U.S. Constitution grab the headlines. But state constitutions and the state appellate cases interpreting them should not be overlooked because they often provide greater protections to free speech and the free exercise of religion. Also, state constitutions often contain additional protections against civil lawsuits.

For example, Article I, section 2 of the Oregon Constitution provides: “All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.” Article I, section 3 of the Oregon Constitution states: “No law shall in any case whatever control the free exercise, and enjoyment of religious opinions, or interfere with the rights of conscience.” In Meltebeke v. BOLI, 322 Oregon 132, 146 (1995), abrogated on other grounds by State v. Hickman, 358 Oregon 1 (2015), the Oregon Supreme Court recognized that these provisions of the Oregon Constitution “are obviously worded more broadly than the federal First Amendment, and are remarkable in the inclusiveness and adamancy with which rights of conscience are to be protected from governmental interference. It is difficult to fully appreciate why Oregon’s pioneers approved these broad and adamant protections. However, the history of religious intolerance was fresh in the minds of those who settled Oregon, many of whom themselves represented relatively diverse religious beliefs.”

Many state constitutions also provide additional protections to defendants facing a civil lawsuit. For example, Article 1, section 10 of the Oregon Constitution states, in relevant part, that “justice shall be administered without delay.” Oregon appellate cases hold that this constitutional clause applies to civil lawsuits, and even a 6-year delay in suing is too long, and bars such a “delayed” case.

Therefore, for example, this state constitutional provision can be asserted as a complete defense to lawsuits brought many years after the alleged event. This includes child sex abuse lawsuits based on alleged repressed memories of the claimed abuse decades ago. This is important because in Oregon, for example, the civil child abuse statute of limitations states that alleged victims can sue until age 40, and even later if they claim repressed memories of the abuse. In the author’s opinion, that statute violates the “justice without delay” clause of the Oregon Constitution, and it should be challenged in court, which could get that type of lawsuit dismissed.

In June 2018, 11th Circuit Court of Appeals Judge Richard Pryor, writing for The National Review, noted that state courts have “been indispensable in protecting freedom and pointing the way to reform.” In Federalist No. 51, James Madison argued that “in the compound republic of America,” the U.S. Constitution would provide a “double security” for liberty. By dividing power between two distinct governments, and then by subdividing the powers of those “distinct and separate governments,” they would “control each other, at the same time that each will be controlled by itself.”

Judge Pryor, as part of a book review, further stated that “the conventional narrative about federal-state relations” is “that federal officers are the good guys, states are the bad guys, and the Supreme Court of the United States, above all, safeguards our liberty by enforcing the federal Constitution.” He recognized that, actually, “the U.S. Supreme Court is an all-too-frequent foe of freedom,” and that “state constitutions, as charters of liberty, predated the federal constitution, many provisions of which owe their origin to state constitutional guarantees.” He urges state courts and lawyers to “restore the important role of state constitutional law.”

Therefore, while U.S. Supreme Court decisions get most of the attention, state constitutions and the state appellate cases interpreting them also need to be consulted when determining the rights of religious entities facing civil lawsuits seeking money or possible government penalties.

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