Inopportune time for bill attacking Establishment Clause

By K. Hollyn Hollman

September 27, 2006

With religious wars raging around the globe, it seems an especially inopportune time to take the religious freedom Americans enjoy for granted. Yet some members of Congress are doing just that. With only a few legislative days left, the leadership of the House of Representatives this week made room on its calendar to debate and vote on a measure that it knew would not be taken up by the Senate, but that they bargained would gain them popularity with voters this fall.

The measure is an attack on the Establishment Clause—the provision in the First Amendment that keeps government from interfering with religion, guards against the government's use of religion for political purposes, and ensures that government does not act in a way that prefers one religion over another. The specific legislation limits judicial remedies in Establishment Clause cases and prohibits courts from granting attorneys' fees to those who bring successful constitutional challenges.

The bill carries the misleading name "Public Expression of Religion Act," as if our religious freedom depended on public (governmental) agencies promoting religion. Religious expression is not threatened by the enforcement of the Establishment Clause, but it is protected by it. The Establishment Clause, along with the Free Exercise Clause, promotes religious freedom for all by protecting against government sponsorship of and interference with religion. It leaves the promotion of religion to the voluntary efforts of individuals and faith communities.

The First Amendment's protections, however, are not self-enforcing. Where a government official or public school advances religion, excludes particular religious expression, or take sides in religious matters, litigation may be necessary to ensure the protection our constitution provides. Often such cases are brought on behalf of those from minority faiths and at great personal expense. It is not uncommon to hear about plaintiffs in such cases being ostracized, mistreated, or even physically threatened. Yet without those who are willing to challenge unconstitutional acts by government, we all would enjoy much less freedom. It is patently unfair to single out those who protect certain constitutional rights for ill-treatment.

The big picture is lost on many of the bill's proponents. By citing the cases they don't like and some of interest groups that bring them, they inflame passions and threaten far greater damage to religious freedom than any particular case could do. Governmental officials should be encouraged to uphold constitutional values, not invited to ignore them. Yet this legislation, like the floor debate this week, would give tacit encouragement to government officials to put politics above principle whenever they find it politically advantageous to do so.