The House Judiciary Committee held hearings yesterday on HR 2679, the "Public Expression of Religion Act of 2005." This bill is being pushed heavily by the religious right because it would prohibit the awarding of legal fees to successful plaintiffs in establishment clause cases. Currently, if you sue the government for a constitutional violation and are successful - if the court agrees that the government has acted unconstitutionally - the judge, at his or her discretion, may order the agency that violated the constitution to pay reasonable legal fees for the other side. This is mandated in Federal law under 42 U.S.C. § 1988. HR 2679 would leave that in place, but exempt only one type of lawsuit from that rule - lawsuits based on establishment clause grounds.
Naturally, the religious right wants this bill to pass very badly because it would make it far more difficult for plaintiffs to bring suits against the government. And remember, they can only be awarded legal fees if they win the suit. What that means, in essence, is that the religious right is trying to rig the game. They lose such cases often in court and that frustrates them. So rather than develop better arguments to compete on a fair playing field, they want to rig the rules of the game to make it more expensive for the other side to play the game. But in the process, they are damaging key constitutional rights.
It's not by accident that the very first clause of the first amendment forbids the establishment of religion, nor is it by accident that among the first rights mentioned is the right to petition the government for the redress of grievances. When the government acts in an unconstitutional manner, it is absurd to expect the individual citizen who petitions the court to bring that unconstitutional action to an end to have to pay the cost of bringing the suit. The religious right, of course, knows this; that's why they aren't challenging the award of legal fees in general but only in the case of establishment clause cases - the ones they keep losing.
Among the people testifying for the bill yesterday morning was Mat Staver, director of the religious right legal group. Staver, you might remember, was the genius behind what I wrote at the time was the single dumbest argument ever presented before a Federal court. When the Massachusetts SJC ruled that that state's constitution required the recognition and protection of gay marriages, Staver filed suit asking the Federal courts to overturn the decision on the grounds that the ruling violated the constitutional guarantee that each state would have a republican form of government. It took the district and appeals courts about 3 minutes to dismiss that suit - I imagine 2 1/2 minutes of that time was spent trying to stifle their laughter - and the Supreme Court rightly denied cert on the appeal. You can read his testimony here.
Marc Stern, representing the American Jewish Congress, also testified before the committee, but he testified against the bill. See his testimony here. Since Stern is a considerably brighter and more honest legal scholar than Staver, his testimony is far more compelling. As he points out, the legislation has clearly not been well thought out. It actually declares that only injunctive relief can be issued by the courts - the courts wouldn't even be able to make declaratory judgements in such cases.
Stern also notes that this legislation unfairly tips the balances against one side in court proceedings without regard to the merit of their claims. As an example, let's say a teacher decides to lead her class in prayer (despite the multiple court rulings that forbid this in the public schools). If the school allows her to do so and the family of one of the students in her class files suit on establishment clause grounds, they must bear the full cost of the litigation. Even if they win the case, if it costs a million dollars to fight such a case all the way to the Supreme Court - and it likely would - they have to be prepared to pay that million dollars even though the government has clearly acted in an unconstitutional manner here.
But let's reverse the example. Let's say that the school refuses to allow the teacher to lead her class in prayer and the teacher decides to sue, claiming that this ruling violates her right to free speech and free exercise of religion. Because the suit is on grounds other than the establishment clause, this legislation would not apply and the teacher could recover the legal costs if she wins the suit, while those objecting to the policy on the other side, because their suit would be on establishment clause grounds, would not.
Heck, we don't even have to go that far, we can look at a real world example. Remember the case in Nevada last week where the school cut off the microphone of a graduation speaker when she spoke about her religion? She's now going to sue the school district claiming a violation of her freedom of speech, a case I think she has a good chance of winning. And if she wins that suit, she'll likely have the legal fees of the Rutherford Institute, the group representing her in the suit, reimbursed by the school district. And that is at it should be.
But let's say that the school district did the opposite and required students to pray and take part in religious exercises rather than forbidding them. The school district would also get sued, of course, but this time that suit would be based on the establishment clause. And under this legislation, if you sue the government to prevent them from compelling your religious observance, you have to foot the bill yourself even if a court finds that they acted unconstitutionally.
The result, of course, is that it strongly reduces the ability of citizens to prevent the government from violating the constitution, and in a clearly unequal manner. For the religious right, it means that suits they approve of are far easier to bring and more plentiful, while suits they oppose are much harder to bring. It further means that if they have a winning legal argument, they don't have to pay for it, while the other side has to pay the full cost of keeping the government within its constitutional boundaries even if they have acted in a flagrantly irresponsible manner.
In short, they're trying to rig the game in their favor to avoid losing so often in court. But in the process, they put the right to petition the government for redress of grievances at enormous risk and remove any incentive for states, localities or the federal government to avoid establishment clause violations. It's very, very dangerous legislation. I urge all of my readers to contact their representative and urge a vote against it.
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I did a half-hearted Google search for "HR 2679" to see what other discussions I can find about it, particularly how those in support of it view it as. I only clicked one of the results leading to a supportive blog post, but it's clear from only that that the support is based on the assumption that this bill will stop the "evil atheistic" ACLU from getting paid.
That's it. That's the only reason given to support the bill.
How likely is this to pass, really? The Religious Right may be great at getting people to vote according to their anti-homosexual bigotry, but they aren't omnipotent. Their anti-evolution bills have a way of dying in committee, for example, even in state legislatures that they control.
It seems to me (though, admittedly, I'm not even close to an expert on such things) that this bill is grossly unconstitutional in its own right, and surely doomed (since it *wouldn't* fall under the establishment clause) to be struck down in court almost immediately. Surely the legislators themselves recognize this. Since this isn't the kind of issue that's easy to use to whip up the base - regulating damages in a lawsuit, even with the evil, atheistic ACLU, isn't nearly as emotionally powerful as defending your children against the homasexshuls - what are the chances that they'll just quietly let it die as a lost cause?
Seraph wrote:
I don't know, to be honest. I suspect that if it comes to the floor for a vote, it would pass the House but fail in the Senate. As of now, the bill has no sponsor in the Senate and that's a good sign.
This is more ridiculous posturing. On the off chance it did pass it would be quickly overturned by the Supreme Court. Scalia would dissent and possibly Alito but even his dissent would be unlikely. As much of an ideologue as he is even he wouldn't be likely to try to justify it. That said I tend to agree with Ed - it would fail the senate, likely it will die in the house.
It strikes me that, if HR 2679 were to become law, it itself would violate the Establishment Clause, since it would be a law benefiting establishments of religion.
Every time I think I've seen it all, the RR comes up with something even more outrageous. And we're supposed to be "liberals" who want "change".
For what it's worth, this bill prompted me to get off my lazy ass and finally join the ACLU. Tho I have to credit Larry Fafarman for alerting me to this bill's existence, so he's actually responsible for my joining. :-)
My God, what did we do with religious issues before the ACLU? My God, what did we do in the classroom when we recited the pledge, said we were one nation under God and proceeded to be educated? My God, when did people forget that this country was founded by religious people who never intended the establishment clause to be taken literally? When did people misunderstand that it is Congress that can make no laws regarding the establishment of religion? My God, when did people not realize that it was Hugo Black, a Supreme Court Justice and known member of the Ku Klux Klan who erected the separation of Church and State? My God, when did stupidity prevail and people lose track of the fact that the ACLU, who's roots are in communism all the way down to it's founder, intend to sanitize this country of its religious heritage? They win. Sure, after Hugo Black they win. Establishment Clause issues are big money for the ACLU. They aren't protecting anyone's religious freedom. They have, thanks to Hugo Black, and activist judge and a bigot with an agenda, mauled and blugdeoned the Establishment Clause of the First Amendment.
Rosalie, thank you for stopping by to spew every bullshit right wing talking point you've ingested uncritically for your entire life.
Ed Brayton - Sorry it took so long to respond to Mr. Brayton's nonsense that the right is rigging the game when it comes to PERA which we so truly hoped would have passed in the Senate. Alas it did not. However, just to set the record straight, in what other instance can you think of where people can sue because they are taxpayers? That's right. People who, on the mere sight of a monument of the Ten Commandments or a nativity scene in the town square, decide to file suits because they are "taxpayers". In no other area of law does the Court allow this kind of legal standing to bring challenges. So stop the nonsense, Brayton. The religious right isn't rigging the game, they would like to see an end to "offended observers" -- people who "feel" upset at the sight of a Manger and need to sue to feel better. We are truly tired of it. There are no federal taxpayer suits allowed in any other context aside from Establishment Clause suits. The Supreme Court will be taking a look at whether taxpayer suits under the Establishment Clause make sense under our constitutional framework. Here's hoping such suits will no longer be tolerated. It began with Hugo Black and hopefully it will end now.
Ed Brayton - Sorry it took so long to respond to Mr. Brayton's nonsense that the right is rigging the game when it comes to PERA which we so truly hoped would have passed in the Senate. Alas it did not. However, just to set the record straight, in what other instance can you think of where people can sue because they are taxpayers? That's right. People who, on the mere sight of a monument of the Ten Commandments or a nativity scene in the town square, decide to file suits because they are "taxpayers". In no other area of law does the Court allow this kind of legal standing to bring challenges. So stop the nonsense, Brayton. The religious right isn't rigging the game, they would like to see an end to "offended observers" -- people who "feel" upset at the sight of a Manger and need to sue to feel better. We are truly tired of it. There are no federal taxpayer suits allowed in any other context aside from Establishment Clause suits. The Supreme Court will be taking a look at whether taxpayer suits under the Establishment Clause make sense under our constitutional framework. Here's hoping such suits will no longer be tolerated. It began with Hugo Black and hopefully it will end now.
Ed Brayton - Sorry it took so long to respond to Mr. Brayton's nonsense that the right is rigging the game when it comes to PERA which we so truly hoped would have passed in the Senate. Alas it did not. However, just to set the record straight, in what other instance can you think of where people can sue because they are taxpayers? That's right. People who, on the mere sight of a monument of the Ten Commandments or a nativity scene in the town square, decide to file suits because they are "taxpayers". In no other area of law does the Court allow this kind of legal standing to bring challenges. So stop the nonsense, Brayton. The religious right isn't rigging the game, they would like to see an end to "offended observers" -- people who "feel" upset at the sight of a Manger and need to sue to feel better. We are truly tired of it. There are no federal taxpayer suits allowed in any other context aside from Establishment Clause suits. The Supreme Court will be taking a look at whether taxpayer suits under the Establishment Clause make sense under our constitutional framework. Here's hoping such suits will no longer be tolerated. It began with Hugo Black and hopefully it will end now.