I looked up the bill I discussed below. Interestingly, Professor Erwin Chemerinsky’s opinion of the bill, as expressed in his Post editorial, is the opposite of the drafters’ stated intention.

In his article, Chemerinsky states that the bill, which prevents victorious plaintiffs in freedom of religion suits from collecting attorney’s fees, is designed to dissuade lawyers from taking on such cases. That is, if Albert feels like his freedom of religion rights are being infringed upon and he wants to sue for it, lawyers will shy away from the case unless Albert can pay out of pocket for their services.

The bill, however, says that allowing plaintiffs to collect fees if they win (thereby incentivizing lawyers only to take on cases that will likely succeed) chills the expression of religion in others. That is, the fear of being sued for infringing on the rights of others is more worthy of protection than the damage caused to those who are infringed upon:

A BILL

To amend the Revised Statutes of the United States to eliminate the chilling effect on the constitutionally protected expression of religion by State and local officials that results from the threat that potential litigants may seek damages and attorney’s fees.

The only people who can now sue, provided this law is signed by the president, are those who can afford to fully fund a lawsuit.

In my mind, this excessively burdens the victims of oppression and emboldens those who would oppress (read: the religious right, Congress and other legislatures). It runs counter to reason for Congress to make it more difficult for people to sue for oppression. All that plaintiffs can get now is injunctive relief (the court tells the defendant to stop). It is now less likely that injunctive relief will be sought, which will correlates to an increased likelihood of activity that would be subject to injunction.

Now having read the bill I agree even more strongly with Chemerinsky: This is a gift to the regressive right.

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