Bill Would Drop Lawyer Fee Damages in Religious Battles

July 7, 2008 - 8:06 PM

(CNSNews.com) - The "Christmas tree wars," fought each year over public religious displays often end up in court, but congressional legislation taken up recently by a House Judiciary subcommittee would prohibit damages and attorney fees from being awarded to plaintiffs in such First Amendment cases.

Mathew Staver, founder and chairman of the conservative Liberty Counsel, testified in favor of the Public Expression of Religion Act of 2005 (PERA). He later told Cybercast News Service that he does not "believe the opposition presented any reasonable arguments to not move forward with this bill. I think it's a bill that should be passed and is long overdue."

The battles over public religious displays, which happen year-round, but are more prevalent during the Christmas season, revolve around the Establishment Clause in the First Amendment to the U.S. Constitution. It states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..."

Civil libertarians often refer to the clause as "the constitutional separation of church and state," words that do not actually appear in the Constitution. Conservatives believe the First Amendment gives them the right to practice their religion in public without interference from the government.

PERA (H.R. 2679), proposed by Rep. John Hostettler, (R-Ind.) would amend two federal laws (42 U.S.C. 1983 and 1988) that the congressman reportedly said are currently used by groups like the American Civil Liberties Union (ACLU) "to extort behavior out of individuals."

If PERA is not enacted, Staver said frivolous litigation by the ACLU will drain the funds that the federal government needs to spend on infrastructure and education.

Rees Lloyd, a former ACLU employee who went on to work as a judge advocate for the American Legion, also testified in favor of the bill; his written testimony stated that there is no need for the ACLU to have its attorney fees paid in religious display cases it challenges in court.

"As a former ACLU attorney, I know to a certainty that the ACLU's litigation is carried out by staff attorneys, or by pro bono attorneys who are in fact precluded from receiving fees under the ACLU's own policies," said Lloyd.

He provided many instances in which he felt unjustified attorney fees were paid to the ACLU:

$1 million was given to the ACLU by the Dover, Pa., School Board in the "Dover Design Theory Case" when the ACLU claimed that teaching "intelligent design" alongside Darwinian Theory violated the Establishment Clause.

Another involved a Ten Commandments monument that was ordered removed from Alabama's state judicial building in 2003. The ACLU and sister organizations received $500,000 in attorney fees.

Lloyd also cited the Redlands, Calif., City Council, which voted to remove the cross in 2005 from its City Seal because the ACLU threatened to sue. Lloyd said the only reason given for the vote was the fear that court-awarded attorney fees would take away taxpayer funds needed for city services.

Because the city could not afford to change all of the seals, employees who had badges -- police, fire, emergency services -- were called in and had holes drilled through the crosses of their badges to comply with the ACLU's demands.

The threat of such attorney fees, according to Lloyd, "is having a chilling effect on the exercise of fundamental First Amendment rights."

Staver added that "some government officials will back down whenever they are threatened by the ACLU, even though they are right, simply because the law is confusing and they don't want to risk having to pay the ACLU's attorney fees."

Marc Stern of the American Jewish Congress, an opponent of the PERA bill, admitted in his written testimony that it is "true that local government bodies have foregone litigating Establishment Clause defenses against claims of free exercise or religious free speech because of concern about attorney's fees."

However, Stern said that if PERA is enacted the government "will rue the day that they supported this legislation."

"What possible reason could there be for treating citizen litigants substantially less well than prison litigants?" he asked.

Stern said PERA was proposed and supported by people with the "mistaken view that Establishment Clause litigation is brought only by those who detest religion, and who seek a naked public square."

According to Stern, "the only practical way to make sure that all these claims" regarding alleged violations of the Establishment Clause, "can be heard is to ensure that access to the courts is on an equal footing."

But according to Staver, this argument is irrelevant because "these claims are typically brought by public interest organizations, already financed by public, charitable support."

Staver added that Establishment Clause jurisprudence is "confusing" and "conflicted" and that even the U.S. Supreme Court justices are confused about the issue. The justices, he said, "rule in one way on one case and the opposite way on another with no rationale between the two."

"We should not punish government officials for a misstep in this constitutional minefield," said Staver.

Stern offered a final warning in the close of his written testimony: "It is a sad fact of human nature that some of those who today protest official efforts to impose religion will, when they hold the reins of power, not hesitate to impose their secular views on others. When that happens, as it inevitably will, the sponsors of H.R. 2679 will rue the day that they supported this legislation."

The ACLU did not return phone calls seeking comment for this article.

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