A few problems with God's class action against gays

Lowering the Bar - I know exactly what you're thinking—one god isn't enough gods for a class action...

Well, you're forgetting that there is such a thing as a defendant class action. See Fed. R. Civ. P. 23(a) (providing that "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members"). Most class actions of course are brought by plaintiffs seeking justice for some wrong done to the public at large, such as the diabolical marketing tactics employed to make consumers think Crunchberries cereal is made with real fruit. But defendant class actions do exist—here's an opinion, for example, certifying a class of over 9,000 people who benefited (knowingly or not) from a Ponzi scheme. So, the fact that there is only one plaintiff (actually, two) and many defendants in God v. Homosexuals is not necessarily a problem.

There are a few problems with this case, though.

Let's start with the plaintiffs. Most reports of this case, filed on April 30 in the federal District of Nebraska, refer to it as "Driskell v. Homosexuals," but Ms. Driskell makes clear in the very first paragraph that she is bringing the case on behalf of the actual plaintiffs, God and Jesus Christ. Can they sue in federal court? Well, if a corporation can do that, I don't see why these entities couldn't. Let's call them a "partnership" or "unincorporated association," and I think under Rule 17 and Nebraska law they are good to go.

The problem is, they need a lawyer. "An individual can represent himself in legal proceedings in his own behalf, but one who is not an attorney cannot represent others." Steinhausen v. Homeservices of Nebraska, Inc., 289 Neb. 927 (2015). That includes entities, as the court held in Steinhausen with regard to limited liability corporations. Here the plaintiffs aren't representing Themselves, and Driskell isn't a lawyer. (She claims to be their "ambassador," but that won't cut it.) Case dismissed.

There is of course reason to believe that Driskell didn't clear this lawsuit with the plaintiffs to begin with. When Ernie Chambers sued God in Nebraska back in 2007, his case was dismissed because he was never able to serve God (with a summons, I mean). Chambers argued that service was unnecessary because God is omniscient and so He already had notice of the lawsuit, but the judge said Chambers still had to follow the rules. When Chambers appealed, arguing that Nebraska courts should take judicial notice of God for this purpose, at least three people offered to represent the Lord on appeal but He did not get involved. My point is, we can assume that God is present in Nebraska but there is no evidence He is interested in litigating there.

Even if He's changed his mind, and setting aside Driskell's lack of a license, it's not clear what the petition is asking the court to do. It appears to be seeking a declaratory judgment that homosexuality is a sin, but the Establishment Clause prevents a court from declaring that kind of thing. Plus, assuming the court had diversity jurisdiction (Driskell doesn't identify a basis for federal-question jurisdiction), it would have to apply the law of the state where it's located. Driskell cites a number of Bible verses that do seem to support her position that homosexuality "is ambomination," but no Nebraska laws at all.

If Driskell is asking the court to take some kind of action against the defendant class, she has the additional problem that she hasn't identified who they are. She has sued "Homosexuals, Their Given Name Homosexuals [and] Their Ali[a]s Gay," which is really not very specific. There are almost certainly homosexuals in Nebraska, but Driskell hasn't identified even one who could be a potential class representative. Until and unless she finds one, names him or her as a defendant and serves that person, there's nothing for the court to do.

Finally, this also seems like one of those cases where the plaintiff may have pleaded herself out of court by alleging facts that show she can't or shouldn't win. The two that jump out at me are paragraphs 24 and 25 (agreeing with the defendants that God loves them), and the last paragraph, citing Lamentations 3:22: "It is [because] of the Lord's mercies that we are not consumed, because His compassions fail not." The court has to assume the allegations are true at this stage. If His compassion is unfailing, then I think His lawsuit has to be dismissed.