The Public Expression of Religion Act
HR 2679 would apply to any lawsuit regarding the establishment of religion by state or local government, in violation of the Constitution--from forced school prayer to the public funding of religion. The law, now in committee, would keep plaintiffs in such cases from seeking damages or attorney's fees if they win.
Why would Congress consider putting that kind of limit on citizens who have been injured by the government in this way? Over the weekend, I watched the webcast of Thursday's House Constitution Subcommittee hearing on the bill to find out. (I know I know, it's a sad way to spend the weekend what can I say...). The panel consisted of 3 in support of the bill and 1 against, American Jewish Congress counsel Marc Stern.
I've picked out the choice quotes from participants and posted them below, but the essential message is this: PERA would embolden governments to err on the side of establishing religion; it would increase the financial burden on those whose rights have been violated should they decide to seek their day in court; and it could have a severe disincentive effect, reflected in an exchange between Mr. Stern and committee member Jerrold Nadler (D-NY) [My transcription]
Nadler: Under this bill, what would stop a recalcitrant governing authority in a local government from violating a federal court order?More quotes below the fold. You can also read Americans United response against the bill here. The American Legion supports the bill in a press release here.Stern: Nothing….It is an open invitation for people to defy the Constitution in the interest of political convenience at their will.
Chairman Steve Chabot (R-OH) offers this rationale in his opening statement:
[T]he threat of litigation against state and local officials alleging that they have violated the Establishment Clause often forces states and localities to cave to demands to remove even the smallest religious references on public property. Most localities do not have the money to pay not only their own, but also the plaintiff’s, attorney’s fees if they receive an adverse judgment.Nadler countered [my transcription]:And, Establishment Clause case law is so confusing and the outcome in these cases so unpredictable that it is virtually impossible for a locality to foresee the outcome in any given case.
We recognize that the independent judiciary is the bulwark of our liberties, allowing people to go to court and force the government to respect their rights. We recognize this by allowing them to seek damages where the government has done damage. We recognize this by ensuring-just as we have done with the Voting Rights Act—that people who can prove their rights have been violated can get attorney’s fees paid, so people with valid claims will be able to go to court, and not be damaged by huge attorney’s fees….The Chairman talks about localities being hurt by attorney’s fees. They only get hurt by attorney’s fees if they are judged wrong by the courts—if they damaged individual rights of somebody. And it’s better that the government be damaged by attorney’s fees when the government has violated someone’s rights than that the victim of that deprivation of rights, the victim of unconstitutional practices, be damaged.Panelist and PERA supporter Mathew Staver (Liberty University Law School) made his best argument this way:
If the Justices of the United States Supreme Court are conflicted over the meaning of the Establishment Clause – and they are—and if professors and judges in lower courts are conflicted—and they are—then it is particularly inappropriate to punish governmet officials with the threat of damages and attorney fees for a mere misstep in this constitutional minefield.And the highlight from Stern's testimony finds a different, unspoken rationale for the bill: [my transcription, my emphasis]
This act leaves citizens worse off the inmates in prison. Inmates get capped attorney’s fees. Here, a proven violation of the Establishment Clause resuts in no attorney’s fees. Secondly, it’s simply not true that the Establishment Clause is uniquely difficult. . . . It’s clear, from the testimony of my colleagues on the panel, that the chief beef here is not with the attorney’s fee statute, but with the substance of constitutional law, and that’s plainly beyond this committee’s competence.The extended text submitted by each panelist can be found at the hearing website.
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Attorney’s fees can be abused. They also make possible and vindicate constitutional rights that otherwise would go un-vindicated. If you want to deal with abuse, then deal with abuse. This bill doesn’t deal with abuse. It deals with one type of rights that the committee happens to disfavor. It’s not a permissible basis for legislation.