STACLU on HR 2679

Jay from Stop the ACLU posted one of his "blogbursts" about HR 2679, which is going to be the subject of hearings in the Senate (designated SB 3696), yesterday and his post linked to one of mine in an attempt to refute it. That post was picked up by many other blogs, all of whom appear to have posted it without any consideration of whether it actually made any sense or not. The problem is that the argument he cited to refute mine didn't even touch on my argument at all. Here's the part where he cites me:

Despite all of this some people are trying to claim, like the ACLU, that this law would prevent people who were actually injured by an arm of the state forcing religious views on people such as a school forcing children to pray from being able to afford to defend themselves.

He then goes on to attempt to refute my argument by quoting something written by Rees Lloyd:

Rees Lloyd dismisses this claim in a selected excerpt from a preview I recieved of his speech this Wednessday:

PERA is narrowly drawn to impact only on Establishment Clause cases, and no other civil rights claims. Arguments have been raised that this, somehow, creates an Equal Protection violation. It is respectfully suggested that this is an argument without merit; the law makes distinctions in myriad instances, including as to what kind of civil wrongs can result in attorney fee transfers by court orders.

The problem, obviously, is that the quote from Lloyd does not even attempt to engage my argument. I didn't make any argument about the bill creating an equal protection violation, so I'm a bit baffled as to why Jay thinks that Lloyd's statement "dismisses" my claim. His argument, as it is, is completely empty of content. Okay, so the law makes myriad distinctions. That certainly doesn't justify making this distinction. Here's his attempt to justify singling out establishment clause cases:

Further, Establishment Clause cases are the only claims of which I am aware that are allowed to proceed without any showing that the plaintiff has suffered any economic, physical, or mental damage, or been deprived of the exercise of any right, but is merely offended at the sight of a symbol which has a religious aspect. In all other categories of claims of which I am aware, mere "taking offense" is not even cognizable for a claim or cause or action. Thus, the distinction made in PERA is a rational one, and preserves attorney fee transfers in cases in which an actual economic, physical, or mental injury, or deprivation of right, other than mere offense, is suffered.

There are two basic problems with this argument. First, he pretends that all establishment clause cases are cases involving someone merely taking offense at a symbol, but that simply is not the case. Many successful establishment clause cases have involved government coercion of forced religious exercises. It wasn't so long ago that schools forced all students to recite Christian prayers, even if they were Jewish, Muslim, Hindu, atheist, or something else. That's not merely taking offense, that is a direct violation of their rights.

And does anyone doubt that schools like the Indian River district in Delaware, where they tell students at school board meetings that if they don't wanna be called "Jew boy" they better convert to Christianity, would return to that in a heartbeat if the courts would let them? Does anyone doubt that some states and localities would, if they thought they wouldn't be sued for it, institute mandatory religious instruction and mandatory prayer again? Under HR 2679, if they did so, any citizen who chose to challenge that rule to keep the government within its constitutional boundaries would have to foot the bill himself, which is exactly what Congress sought to avoid when they passed the law allowing fee shifting in civil rights cases.

Other establishment clause cases involve the use of our tax dollars to pay for public displays for only one religion (Christianity, of course), or involve allowing only Christian groups access to public forums. Now, the STACLU crowd dismisses cases like that out of hand because, of course, they're in the Christian majority and they get their way. But if a city they lived in decided to use their tax dollars to pay for a Ramadan display but no other, or decided only to allow Muslim or Jewish groups to put up their displays on the grounds of city hall, their tune would change in a millisecond. To force a man to pay tax dollars to support a religion he does not adhere to, Jefferson said, is sinful and tyrannical. Yes, there is actual harm done when we are forced to do so - and the STACLU crowd would agree with that completely if it wasn't their religion being supported with our tax dollars.

The second problem is that he ignores completely the text and structure of the establishment clause. He points out that establishment clause cases are the only ones where it's possible to challenge a law without claiming a direct violation of rights, but he ignores the fact that the establishment clause, by its very language, demands that this be the case. The establishment clause is the only clause in the first amendment that is not tied to a specific right. The rest are given explicitly named freedoms - freedom of the press, freedom of speech, the right to peacably assemble - and they are worded by forbidding Congress to interfere with those freedoms.

The establishment clause, on the other hand, does not name a specific right that the clause forbids abridgement of, it is a general prohibition on religious establishments. But if all challenges to legislative acts have to be accompanied by the violation of an explicit right, that would render the establishment clause unenforcable, wouldn't it? Now, we can argue all day long about whether this or that establishment clause decision was correct, but this bill would esssentially make all establishment clause cases unenforcable in court - unless a rich citizen wants to foot the bill for the suit. Do we really want the courts to be open only to the wealthy? That is precisely what the Congress sought to avoid when they passed a law allowing fee shifting in successful suits agianst the government.

They wanted to make sure that anyone could challenge the government in court in an attempt to keep them within their constitutional authority, and do so with competent legal representation, without being wealthy. And this bill would destroy that. The STACLU crowd would scream holy hell, and offer all these reasons, if an attempt was made to do away with fee shifting in free exercise cases (and I'd be screaming right by their side). The only difference here is that they don't like the outcome of most establishment clause cases. They don't like that the other side keeps winning in court. And since they can't make their legal arguments any stronger and win in court on a level playing field, they're trying to hobble the opposition so they can't even get on the field. That's all this is about.