[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



               PUBLIC EXPRESSION OF RELIGION ACT OF 2005

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 2679

                               __________

                             JUNE 22, 2006

                               __________

                           Serial No. 109-118

                               __________

         Printed for the use of the Committee on the Judiciary





      Available via the World Wide Web: http://judiciary.house.gov
                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona                JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin                CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida

                     Paul B. Taylor, Chief Counsel

                      E. Stewart Jeffries, Counsel

                          Hilary Funk, Counsel

                 Kimberly Betz, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member



                            C O N T E N T S

                              ----------                              

                             JUNE 22, 2006

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress from the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     2
The Honorable John N. Hostettler, a Representative in Congress 
  from the State of Indiana, and Member, Subcommittee on the 
  Constitution...................................................     4
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Member, Subcommittee on the 
  Constitution...................................................     7

                               WITNESSES

Mr. Rees Lloyd, Commander, District 21, The American Legion
  Oral Testimony.................................................    10
  Prepared Statement.............................................    12
Mr. Mathew D. Staver, Founder and Chairman, Liberty Counsel, 
  Interim Dean, Liberty University School of Law
  Oral Testimony.................................................    32
  Prepared Statement.............................................    35
Mr. Marc D. Stern, General Counsel, American Jewish Congress
  Oral Testimony.................................................    72
  Prepared Statement.............................................    74
Professor Patrick Garry, Associate Professor of Law, University 
  of South Dakota School of Law
  Oral Testimony.................................................    97
  Prepared Statement.............................................    99

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Member, Subcommittee on the Constitution.......................   180
Additional Information submitted by Mathew D. Staver, Founder and 
  Chairman, Liberty Counsel, Interim Dean, Liberty University 
  School of Law..................................................   182
Additional Information submitted by Marc D. Stern, General 
  Counsel, American Jewish Congress..............................   183
Prepared Statement of the Alliance Defense Fund concerning H.R. 
  2679, the ``Public Expression of Religion Act of 2005''........   184
Prepared Statement of Steven W. Fitschen, President, The National 
  Legal Foundation...............................................   198
Letters for the hearing recorded inserted by the Honorable Robert 
  C. Scott:
    Letter from Ruth Flower, Legislative Director, Friends 
      Committee on National Legislation, to The Honorable Steve 
      Chabot, dated June 19, 2006................................   225
    Letter from Wade Henderson, Executive Director, and Nancy 
      Zirkin, Deputy Director, Leadership Conference on Civil 
      Rights, to Members of the Judiciary Committee, dated June 
      21, 2006...................................................   226
    Letter from Caroline Fredrickson, Director, American Civil 
      Liberties Union dated June 22, 2006........................   227
    Letter from the American Civil Liberties Union, et. al., 
      dated June 22, 2006........................................   230
    Letter from the Reverend Barry W. Lynn, Executive Director, 
      Americans United for Separation of Church and State, to 
      Chairman Chabot and Ranking Member Nadler, dated June 22, 
      2006.......................................................   232

 
                         PUBLIC EXPRESSION OF 
                          RELIGION ACT OF 2005

                              ----------                              


                        THURSDAY, JUNE 22, 2006

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:03 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
Chabot (Chairman of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order.
    This is the Judiciary Committee's Subcommittee on the 
Constitution. I am Steve Chabot, the Chairman. I want to thank 
everyone for being here this morning.
    The House Constitution Subcommittee convenes today to 
consider H.R. 2679, the Public Expression of Religion Act, 
commonly known as PERA, which was introduced by the 
distinguished gentleman from Indiana, Congressman John 
Hostettler, who is with us here this morning.
    PERA amends 42 U.S.C. Sections 1983 and 1988 to prevent the 
use of the legal system in a manner that extorts money from 
State and local governments and inhibits their constitutional 
actions.
    Federal statute 42 U.S.C. 1983 is the statute that allows 
people to sue State and local governments for alleged 
constitutional violations of their individual rights. Federal 
statute 42 U.S.C. 1988 is the Federal fee-shifting statute that 
allows prevailing plaintiffs in lawsuits filed under 1983 to be 
awarded attorney's fees from the defendant. And the defendant 
in that case would generally be a governmental entity.
    Consequently, under 42 U.S.C. 1983, parties can sue State 
and local governments claiming their individual rights were 
violated and demand attorney's fees in the case under 42 U.S.C. 
1988 if they prevail at any stage of judicial review.
    Because of these laws, the 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 
for not only their own, but also the plaintiff's, attorney's 
fees if they receive an adverse judgment. And Establishment 
Clause case law is oftentimes 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.
    PERA addresses this problem by amending 42 U.S.C. 1983 to 
permit only injunctive relief in cases alleging violations of 
the Establishment Clause. PERA also amends 42 U.S.C. 1988 to 
disallow the award of attorney's fees to prevailing parties in 
cases alleging violations of the Establishment Clause.
    PERA will level the playing field against groups such as 
the ACLU who have won millions of dollars in attorney's fees 
while extorting State and local governments into suppressing 
the religious speech and free exercise of religion of private 
individuals, for example, tearing down veterans' memorials that 
happen to have religious symbols on them, removing the Ten 
Commandments from public buildings, booting the Boy Scouts off 
public property, or blotting out crosses from official county 
seals. This happened in California.
    Again, I would like to thank our witnesses for being here 
today. And we will get to you very soon.
    And that is the balance of my statement. I would now yield 
to the gentleman from New York, Mr. Nadler, for the purpose of 
making an opening statement.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chairman, I want to join you in welcoming our witnesses 
today.
    I think we can agree that the topic of today's hearing is 
of monumental importance, albeit for differing reasons. The 
good news is that this legislation is not yet another attempt 
at stripping the Federal courts of the jurisdiction to hear 
cases if some in Congress think they won't like the answer the 
Federal courts might give.
    The bad news is that today for the first time since the 
enactment of Section 1983 in 1871 we are considering 
legislation that would single out a particular group of 
individuals whose first amendment rights have been violated by 
the Federal Government or by the government and deny them 
remedies available to everyone else under Section 1983. These 
are people whose rights have been violated by the Government or 
by someone acting under color of law and who have been able to 
prove that in a court of law. By denying them the normal relief 
of monetary damages and the ability to petition for attorney's 
fees we are not just denying them their day in court, we are 
telling Government officials everywhere that Congress thinks it 
is okay if they violate people's religious liberty.
    Because remember, anyone who loses a case--when the 
Government loses a case here, the court will have found that 
they violated someone's religious liberty. It is especially 
galling after we have just completed most of the work on the 
reauthorization of the Voting Rights Act, although I must say 
it seems that some of the majority party aren't too happy with 
that, in which we enhanced the attorney's fees, enhanced the 
attorney's fees provision in that bill that this Committee 
reported by adding a right to be awarded the cost of expert 
witnesses.
    As this Committee stated in its report, ``The Committee 
received substantial testimony indicating that much of the 
burden associated with either proving or defending a Section 2 
vote dilution claim is established by information that only an 
expert can prepare. In harmonizing the Voting Rights Act of 
1965 with other Federal civil rights laws, the Committee also 
seeks to ensure that those minority voters who have been 
victimized by continued acts of discrimination are made 
whole.''
    I would warn my colleagues that starting down this path of 
denying proven victims of discrimination by the Government--
that is what we are talking about, Section 1983 where someone 
acting under color of law, a Government official, violated 
someone's constitutional rights, in this case, someone's 
constitutional rights under the first amendment liberty 
provisions--starting down this path will only lead to depriving 
other unpopular groups of their civil rights remedies.
    It wasn't so long ago that attacks on unelected judges and 
ACLU lawyers stirring up trouble was the common language of the 
militant segregationists, those who said that if it weren't for 
those unelected judges and those ACLU lawyers and those 
carpetbaggers coming down here, no one would be questioning our 
Jim Crow practices that our local Black people are so happy 
with.
    It is distressing and sadly ironic that today the same 
language is being used to gut the nation's oldest and most 
durable civil rights law. It is all reminiscent of Governor 
Wallace's infamous 1963 inaugural speech in which he said, 
``From this day, from this hour, from this minute we give the 
word of a race of honor that we will tolerate their boot in our 
face no longer. And let those certain judges put that in their 
opium pipes of power and smoke it for what it is worth.'' I 
think the governor would feel right at home on this Committee 
today, as would some of the majority witnesses.
    Or the notorious southern manifesto signed by Members of 
both houses of this Congress in defiance of the Supreme Court's 
school desegregation decisions: ``We regard the decisions of 
the Supreme Court in the school case as a clear abuse of 
judicial power. It climaxes a trend in the Federal judiciary 
undertaking to legislate in derogation of the authority of 
Congress and to encroach upon the reserved rights of the States 
and of the people.''
    Does this sound familiar? This is the rhetoric we are 
hearing on this bill. It is the rhetoric we are hearing on the 
other court-stripping legislation.
    I raise this not to suggest that any Members of this house 
are segregationists. Far from it. I do recall the overheated 
rhetoric of a half-century ago to urge caution. Unpopular 
minorities--and those are the people in these cases, people 
defending the religious liberty of unpopular minorities and 
decisions defending the rights of unpopular minorities against 
the will of the majority have always inflamed passions. People 
have always questioned our system of checks and balances and 
especially the role of the independent judiciary.
    Recourse to an independent judiciary is the bulwark of our 
liberties. We recognize--and remember, if you look at the 1936 
Stalinist Constitution of the Soviet Union, it looked 
wonderful, right to free expression, right to freedom of 
speech, freedom of the press, freedom of religious and anti-
religious propaganda, as they quaintly put it. The only problem 
was there was no real recourse. There was no way to enforce 
those rights.
    If you sought to enforce the rights, you got shot. In this 
country, you go to court until now. If this bill passes or the 
other court-stripping bills, we limit the right of people to go 
to court to defend their rights.
    We recognize people's liberties. We recognize that the 
independent judiciary is the bulwark of our liberties by 
allowing people to go to court and force the Government to 
respect their rights.
    We recognize this by allowing them to receive damages where 
the Government has done them. 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 that people with valid claims will be able to go 
to court and not be damaged--will be able to go to court, 
number one and number two, not be damaged by huge attorney's 
fees.
    I would remind my friends--and let me say the Chairman 
talks about localities being hurt by attorney's fees. They are 
only getting hurt by attorney's fees if they are judged wrong 
by the courts, if they damaged individual rights of somebody. 
And it is better that the Government be damaged by attorney's 
fees when the Government has violated someone's rights than 
that the victim of the deprivation of those rights, the victim 
of unconstitutional practices be damaged.
    I would remind my friends that this legislation is not 
limited to religious symbols in public places. This legislation 
applies to any violation of the Establishment Clause. This 
would include forced prayer, not a voluntary prayer, but forced 
prayer. And if Government forcing your child to say a prayer of 
another faith is not the establishment of religion then the 
phrase has no meaning.
    It is an election year. The months leading up to elections 
have long been known as the silly season. We all understand 
that. But get an earmark for a bridge or something. Leave the 
first amendment and our civil rights laws out of it.
    Thank you. I yield back.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Indiana, Mr. Hostettler, the chief 
proponent of the bill, is recognized for the purpose of making 
an opening statement.
    Mr. Hostettler. I thank the Chairman. And I want to thank 
you for calling this important hearing today as the legislature 
acts in our constitutionally independent capacity.
    I first introduced the Public Expression of Religion Act in 
the 105th Congress a few years before this election year after 
I realized that the imposition of attorney's fees in these 
kinds of cases were jeopardizing our constituents' 
constitutional rights. An example of this was in 1993 when the 
Indiana Civil Liberties Union, which is affiliated with the 
American Civil Liberties Union, mailed a letter to all the 
public educators in Indiana. And I think we have some excerpts 
from that. And I will read.
    First of all, the heading is from the Indiana Civil 
Liberties Union. And the footing states that the Indiana Civil 
Liberties Union is an affiliate of the American Civil Liberties 
Union. The letter states, in part, this: ``Dear Educator, the 
Indiana Civil Liberties Union has received several calls 
recently from school boards throughout the State concerning 
prayer at graduation. The Supreme Court has held clearly and 
explicitly that prayer at graduation is `forbidden by the 
Establishment Clause of the first amendment.' And there are no 
exceptions or loopholes.''
    ``No member of the school board, no teacher, no principal, 
no invited clergy and student speaker may take the podium and 
invite the audience to pray. If you decide to hold graduation 
prayer anyway as a matter of principle, four things will 
probably happen. One, we will sue both the school corporation 
and any individuals who approved or authorized graduation 
prayers. Two, we will win. The Supreme Court has already 
decided the issue.
    ``Three, you will pay your own and our attorney's fees, an 
amount that could run as high as a quarter of a million 
dollars. Your insurance will not cover it because it is a 
deliberate violation of law. So the money will come directly 
from property taxes.'' The letter ends this way, ironically 
enough. ``The ICLU does not enjoy litigation. We and you have 
better things to do with our time. You have better things to do 
with your money.''
    These threats to teachers who are highly unlikely to be 
able to pay their own attorney's fees, let alone the exorbitant 
attorney's fees of the ICLU, make it very likely that educators 
would capitulate to the ICLU before even checking to make sure 
the ICLU has their facts right, which in one particular case 
they didn't. What makes this even more difficult for States and 
localities is that the jurisprudence in Establishment Clause 
cases is about as clear as mud. Different districts and even 
the Supreme Court itself flip-flops on issues.
    For instance, last year the Supreme Court handed down two 
Ten Commandments decisions on the same day with a different 
decision in each. In the Van Orden case, the court applied the 
Marsh test of historical perspective to determine that the Ten 
Commandments in a public venue was constitutional. While the 
McCrary case used the Lemon test to determine that the Ten 
Commandments in a public venue was unconstitutional, clear as 
mud.
    Our constituents who are being threatened with these 
lawsuits know that even if they are right they will have to pay 
their own attorney's fees to take the gamble that the court 
will muddle through one more time the jurisprudential mess of 
the Establishment Clause and come out on their side. If a court 
chooses to use the Marsh test, they might win. If the court 
chooses to use the Lemon test, they might lose. It is a toss-
up.
    Unfortunately, many of our constituents do not have the 
means or time to set aside a small fortune every year to defend 
their constitutional rights against these liberal 
organizations. Nor do they look kindly on the fact that their 
constitutional rights have become subject to the whims, 
literally, of unelected judges. But that issue is for another 
hearing.
    Regardless, many do not wish to roll the dice to have their 
day in court. So they capitulate to these organizations and 
their often questionable pronouncement of what is or is not 
constitutional. The majority of the cases the ACLU and its 
affiliates represent are facilitated by staff attorneys or 
through pro bono work. So any attorney's fees awarded to them 
is icing on the cake. It is a win-win situation for them right 
now.
    On the other hand, cities and States have to consider where 
the attorney's fees would come from if they lose their case and 
have to pay the ACLU. Where would the money come from, from the 
taxpayers? States and localities have limited resources with 
which to fight court battles. Thus, another reason that they 
are capitulating before they even go to court.
    This was the case recently with the Los Angeles County 
seal. The ACLU threatened to sue Los Angeles County if they did 
not remove the small cross from the county seal. The previous 
seal is available along with the new seal.
    The county was forced to choose between paying to change 
the seal or paying to go to court and possibly pay exorbitant 
attorney's fees to the ACLU. In the end, the L.A. county 
commissioners in a three to two vote decided to ignore the will 
of the people of Los Angeles County and pay to change the seal 
instead of paying to go to court. They had been advised by 
their attorneys that if they lost in court they would not only 
have to change the seal, but they would additionally have to 
pay attorney's fees.
    Mr. Chairman, opposition to PERA is based in no small part 
on the reality of the Establishment Clause jurisprudence as it 
has come today. I mentioned the two cases earlier, and I point 
out that as that case was without--Mr. Chairman, I ask for an 
additional minute.
    Mr. Chabot. Without objection, the gentleman is granted an 
additional minute.
    Mr. Hostettler. --that as that case was decided before the 
most recent changes to the Supreme Court, namely the addition 
of Chief Justice Roberts and Justice Alito that, in fact, in 
one particular case the majority found that the public display 
of the Ten Commandments was constitutional. Whereas in the 
other case, Justice Breyer changed his vote, so to speak, and, 
therefore, as a result of one person's vote, the case in 
McCrary County was found to be unconstitutional.
    But given the fact that Justice Alito has taken Sandra Day 
O'Connor's place, whose position in both cases, in my humble 
opinion, was on the wrong side, the simple fact of the matter 
is we will not need Stephen Breyer's opinion in the future.
    Mr. Chairman, I believe it is time to bring this extortion 
to an end. The Public Expression of Religion Act would make 
sure that these cases are tried on their merits and are not 
merely used to extort money either via settlements or 
attorney's fees. I yield back the balance of my time.
    Mr. Chabot. I would ask unanimous consent that the 
gentleman be given an additional minute and the gentleman would 
yield to me for a moment.
    Mr. Hostettler. Yes, I will yield to the gentleman.
    Mr. Chabot. Could we have that pulled up again, what we had 
there before that showed the seal of California? If I am not 
mistaken, Mr. Hostettler, the one on the left there was the old 
version. And it is pretty hard to see the cross on there, but 
there is a statue of, I believe, a pagan goddess there in the 
middle.
    Mr. Hostettler. Yes.
    Mr. Chabot. About at her arm level there, the cross to the 
right there, that is the cross, I believe. It is pretty hard to 
see on there.
    Mr. Hostettler. Yes, sir.
    Mr. Chabot. About, I think I understand it is maybe one-
sixth the size of the cow there at the bottom. The cross is 
removed there on the right. But the pagan goddess on there, 
that was okay, but the cross was removed?
    Mr. Hostettler. It is my understanding that the pagan 
goddess was not the subject of the ACLU's concern, that the 
cross was the subject of the concern. L.A. County changed the 
goddess in hopes of fending off a future potential lawsuit.
    Mr. Chabot. Okay.
    Mr. Hostettler. That is my understanding.
    Mr. Chabot. Very good. Well, thank you very much, Mr. 
Hostettler. The gentleman's time has expired.
    The gentleman from Virginia is recognized for the purpose 
of making an opening--if he would like to make an opening 
statement, or not, either way.
    Mr. Scott. Sure. Thank you, Mr. Chairman.
    Mr. Chairman, it is just nice to see the representative of 
the American Legion here because the last few years we have 
seen our budget deteriorate about $9 trillion, and they have 
been leaving veterans behind. As a matter of fact, just 
recently we have slashed $6 billion from what is needed to meet 
current veterans' health-care needs over the next 5 years.
    We have prevented 1 million new veterans from enrolling in 
V.A. medical care. We have doubled and tripled health-care fees 
for 4 million military retirees under 65. More than 30,000 new 
veterans are waiting for their first appointment at the V.A., 
double the number from a year ago. We have doubled the co-pays 
for prescriptive drugs. We have opposed ending the tax on 
military families pensions and concurrent receipts for disabled 
veterans.
    As a matter of fact, Mr. Chairman, when we talk about what 
we are doing with our budget, this chart shows that all our 
money is going to interest on the national debt with a little 
bit going to education, a little bit going to homeland 
security. And what falls off the truck, the veterans get.
    But the veterans who happen to be multi-millionaires, 
however, Mr. Chairman, we are going to help this afternoon 
because those with States over $1 million we are going to 
eliminate most of the estate tax on those multi-million dollar 
estates. So when they die with millions of dollars--if they die 
with millions of dollars, we will be right there to help them 
out.
    So, Mr. Chairman, I would hope that if we are going to be 
patriotic that we would fulfill our responsibilities to our 
veterans, not have a three-quarters of a trillion dollar tax 
cut going only to dead multi-millionaires. And I say dead 
multi-millionaires because there is no tax for the first $1 
million of the estate under the former law. And now it is up to 
about $2 million per person. That is $4 million per couple tax-
free. But we are going to make sure those with even more than 
that get tax relief to the tune of about three-quarters of a 
trillion dollars and fully phased in over 10 years.
    Mr. Chairman, this particular bill--it is interesting if 
you violate the Establishment Clause, no disincentive. But if 
you violate the free speech part, free exercise part of the 
same amendment, then I guess you can get attorney's fees. This 
is a picking and choosing which constitutional rights we are 
going to actually enforce. It is a real bad precedent. And I 
would hope we would defeat the bill if it ever comes up.
    I yield back.
    Mr. Chabot. The gentleman yields back.
    The Chair would just note that the purpose of this hearing 
is on PERA, not necessarily veterans' benefits. But since the 
gentleman from Virginia has mentioned the national debt, for 
example, I would note that I came here in 1994. And prior to 
that when the gentleman's party was in control for 40 years we 
didn't have a balanced budget. And that is when much of the 
debt was run up.
    And at least for 4 or 5 of the years we had a balanced 
budget since the current majority party is in control now. I 
very much would like to get back to a balanced budget.
    And let me just conclude with saying that when the 
gentleman talks about the Federal inheritance tax or the death 
tax, I would just say that philosophically I believe that when 
the Government can take away 55 percent of what a person has 
when they die I think that is confiscatory and immoral.
    And I think that we ought not tax people when they die. And 
this is money that they paid taxes on throughout their life. 
But that is not the purpose of this hearing. But the gentleman 
brings it up, so there are two sides to many things.
    And I will--well, the gentleman from New York, unless the 
gentleman from----
    Mr. Nadler. I will just point out--I don't want to get into 
an overlong discussion of economics at the moment, although it 
does implicate the question of why this question is a veterans 
issue when there are so many other issues that really affect 
veterans as opposed to this nonsense.
    But I would simply point out given what the Chairman said 
that when Ronald Reagan took office, the national debt of the 
United States accumulated from George Washington through Jimmy 
Carter was $794 billion. Twelve years later when George Bush 
the first left office, the national debt was $4.3 trillion. 
There is almost quintupled. It started declining when Clinton 
was in office. It is now greatly accelerating again.
    And one other thing, the stuff I hear when our party was in 
control of Congress, et cetera, et cetera, don't forget that 
during that period that Republican presidents for most of the 
time, not to mention a Republican Senate. This is fortunately 
or unfortunately not a parliamentary system with a unicameral 
legislature. So you can't just look at the House, as much as I 
wish maybe we should.
    I yield back.
    Mr. Chabot. We could carry on this all day.
    But the gentleman, Mr. Lloyd here, who I think is a 
veteran, obviously will, I am sure, in his testimony discuss 
why, in fact, there are veterans who care about this particular 
issue.
    I would like to introduce our witness panel at this, at 
this time, if we could.
    Our first witness today is Rees Lloyd. Mr. Lloyd is a long-
time civil and workers' rights attorney in California and a 
Vietnam-era veteran of the U.S. Army who currently serves as 
commander-elect of district 21 of the American Legion 
Department of California, which embraces some 23 posts and over 
6,000 members in Riverside, California.
    Mr. Lloyd was once a staff attorney with the ACLU of 
Southern California, which recognized him for ``pioneering 
efforts in the area of workers' rights,'' and a pro bono 
attorney for the late Cezar Chavez, founder and president of 
the United Farm Workers of America.
    Mr. Lloyd currently serves as special counsel for civil 
rights to California department commander Wayne Parrish and as 
Director of the Defense of Veterans Memorials project of the 
Department of California.
    Excuse me.
    He was named American Legionnaire of the Year 2004-2005 for 
the 40,000-member fifth area of the Department of California. 
Mr. Lloyd has served as a principle spokesman for the American 
Legion regarding Establishment Clause litigation and the Public 
Expression of Religion Act.
    And we welcome you here, Mr. Lloyd. And I am going to 
introduce the rest of the panel here before we get to you.
    Our second witness is Mathew Staver.
    I am pronouncing that right, I assume?
    Mr. Staver serves as the Interim Dean of Liberty University 
School of Law and is the founder and chairman of Liberty 
Council, a national non-profit litigation, education and policy 
organization. He has written 10 books, most of which focus on 
constitutional law and has published hundreds of articles on 
constitutional law. He has presented many continuing legal 
education credit courses to attorneys, law professors and 
judges regarding the 42 U.S.C Sections 1983 and 1988.
    Mr. Staver has argued in numerous State and Federal courts 
across the country and has more than 110 published legal court 
opinions. Mr. Staver has written numerous briefs before the 
United States Supreme Court and has argued twice before the 
high court as lead counsel.
    We welcome you here, Mr. Staver.
    Our third witness is Marc Stern, Assistant Executive 
Director of the American Jewish Congress and co-director of its 
commission on law and social action. Mr. Stern was consulted 
widely by numerous Jewish and non-Jewish organizations 
interested in maintaining the separation of church and State 
and is interviewed often by the broadcast and print media.
    Mr. Stern has been named one of the 40 to 50 most 
influential leaders of the American-Jewish community. Mr. Stern 
has taken the lead role in coalitions assembled by the 
American-Jewish Congress, which have produced guidelines 
utilized by the Clinton administration to clarify contentious 
church-State issues in American society today. These guidelines 
include Religion in the Public Schools, Religion in the Federal 
Workplace and Public Schools and Religious Communities, a first 
amendment Guide. Mr. Stern has written numerous briefs, 
monographs, legislative testimony and articles on a variety of 
civil rights and civil liberties issues.
    And we welcome you here, Mr. Stern.
    Our fourth and final witness will be Professor Patrick 
Garry. Professor Garry is an associate professor of law at the 
University of South Dakota School of Law and a visiting 
professor at George Washington School of Law. Patrick Garry has 
a J.D. with honors and Ph.D. in constitutional history from the 
University of Minnesota.
    Before joining the faculty at the University of South 
Dakota School of Law, Professor Garry was awarded a research 
fellowship at the Freedom Forum Media Studies Center and was a 
visiting scholar at Columbia University Law School. He also 
served as an adjunct professor at St. John's University and a 
research project adviser at the Center for Media Law and Ethics 
in the University of Minnesota.
    Patrick Garry is a contributor to the Oxford Champion to 
the United States Supreme Court and has published seven books. 
His first book was included in the distinguished studies in 
American legal and constitutional history. Professor Garry's 
study of Justice Oliver Wendell Holmes appears in Great 
Justices of the U.S. Supreme Court, and his scholarly articles 
have been published in a variety of journals.
    We very much welcome our entire panel here this morning. 
Obviously we have a very distinguished panel.
    And it is the practice of the Committee to swear in all 
witnesses appearing before it. So if you would, if you would 
all please stand and raise your right hand.
    Do you swear that in the testimony you are about to give 
you will tell the truth, the whole truth and nothing but the 
truth, so help you, God?
    All witnesses have indicated in the affirmative.
    And, without objection, all Members will have 5 legislative 
days within which to submit additional materials for the 
record.
    [The prepared statement of Mr. Conyers is located in the 
Appendix.]
    Mr. Chabot. And before we get started, you are probably 
familiar with the 5-minute rule. But each of you will have 5 
minutes to testify. We actually have a lighting system which 
when you begin there will be a green light. That will be on for 
4 minutes. The yellow light will be on for 1 minute, letting 
you know it is time to kind of wrap up. And the red light will 
come on, at which time we hope you will be finished. If not, we 
will give you a little bit of leeway. But we hope to not have 
to gavel anybody down.
    We also apply the 5-minute rule to ourselves here. So we 
are pretty careful about that to be fair.
    So if there are no questions, Mr. Lloyd, you are recognized 
for 5 minutes.

       TESTIMONY OF REES LLOYD, COMMANDER, DISTRICT 21, 
                      THE AMERICAN LEGION

    Mr. Lloyd. Thank you very much----
    Mr. Chabot. If you could turn the light on. You just push 
the--or turn the mike on. Yes, I am sorry. And if you will pull 
the box kind of toward you there. We will begin your time here 
at that time.
    Mr. Lloyd. Thank you very much, Mr. Chairman and Members of 
the Committee. And it is indeed a great honor for me to be able 
to address you today on this important legislation on behalf of 
the American Legion, the largest wartime veterans organization 
in the world, with 2.7 million members, and indeed on behalf of 
the entire Legion family of Legion, auxiliary and sons of the 
American Legion, with some 4 million members.
    I can assure you that we regard this as an extremely 
serious matter. Our veterans memorials all over the nation are 
threatened by lawsuits. And we are being precluded from 
effectively exercising our rights to petition before the courts 
and before our elected bodies at the local level because of the 
threat of attorney fees being imposed, including on us if we 
have the audacity to intervene in such cases and fight the ACLU 
and others in protection of our veterans memorials because we 
run the risk then of having those fees shifted to us. And I 
would ask that that be considered carefully by the Congress 
when it considers civil rights.
    I was very, very interested in the comments of Mr. Nadler, 
and I thank him for referencing the civil rights legislation, 
civil rights of our country. I have been involved as a civil 
rights attorney my entire professional life. It was my honor, 
among other things, to represent Cezar Chavez and the farm 
workers movement for almost 20 years until the day of that 
great man's death. And in that time, I would say, Mr. Nadler, 
we fought those battles because they needed to be fought----
    Mr. Nadler. Nadler.
    Mr. Lloyd. Nadler--not because we were getting paid. 
Because when I worked for him, I got all the frijoles and 
tortillas I could eat, and that was it. We fought them because 
they needed to be fought, and they were right.
    And today we are told that the ACLU and others will not 
fight the battles for what they believe to be the civil rights 
under the Establishment Clause unless they are enriched at 
taxpayer expense. And I object to that notion.
    Mr. Nadler. I ask that that be stricken from the record.
    Mr. Chabot. Let us let the----
    Mr. Nadler. It is an unfair aspersion about the ACLU.
    Mr. Chabot. The witness is entitled to his opinion. And if 
it is his opinion, it is his opinion.
    Mr. Nadler. The fact that the ACLU has said it will not 
fight unless it gets paid. It is not true.
    Mr. Lloyd. It is true that the opponents of this bill have 
stated that if you remove the attorney fee provision these 
suits will not be brought. In fact, it is in the testimony that 
is written here today. So it is true.
    And I don't believe the ACLU has ever intended, or anybody 
in it ever believed, that that was the basis. Certainly, when I 
was an ACLU attorney we never did that. As a civil rights 
attorney, as a member, former attorney for the ACLU and for 
Cezar, I am appalled that this is what would happen to the 
civil rights movement, the civil rights effort, to have to 
depend on attorney fees.
    We are trying to defend our veterans memorials in 
California where we had the precedent of the Mojave Desert 
Veterans Memorial across a rock outcrop built in 1934 by vets 
to honor vets. When it was incorporated into the Mojave Desert 
Preserve, a lawsuit is filed. It is 11 miles off the highway. 
It is in the middle of the desert. You have to drive to it to 
be offended by it. A judge says tear it down and gave the ACLU 
$63,000.
    In the Mount Soledad case that many people in the country 
are aware of at this time--that cross was there since 1913. 
Fifty years ago they established the memorial. Today a Federal 
judge has ordered it be destroyed by August 1 or we will fine 
you $5,000 a day. We can't enter that case as parties and 
intervene because the Legion will then risk having to pay the 
ACLU's attorney fees. And that shouldn't be.
    It is not a one-way--it is a two--it is not a two-way 
street. It is one-way. If the ACLU prevails, it gets its funds. 
If it loses, it doesn't have to pay them because there is a 
different standard. And the different standard is you have to 
show that it was frivolous. It is not at all the prevailing 
party gets their attorney fees.
    And with reference to the remarks of Representative Scott, 
which we appreciate very much, we are dealing with those issues 
and other legislative matters. But I will say there is an easy 
way to find the money to pay the veterans benefits that are 
due. Stop the judges from giving millions to the ACLU and 
others to sue our veterans memorials and give us the ability to 
fight back on a level playing field where we don't risk having 
those fees imposed on us and where we can appeal to local 
elected bodies who will listen to us who today don't because 
their minds are made up. They say we have no choice, including 
in Los Angeles, including at Redlands where they are drilling 
holes through the crosses on the badges because they can't 
afford to make the changes that are due.
    Gentlemen, I don't think Congress ever intended the 1976--
not the 1871 Civil Rights Act, but the 1976 Civil Rights 
Attorney Fees Act, 42 U.S.C. 1988 to be used in this way. The 
country got along under the Civil Rights Act since 1871 until 
1976 without an attorney fee provision, and we can if we 
eliminate it today.
    And I thank you. I am out of time.
    [The prepared statement of Mr. Lloyd follows:]
                    Prepared Statement of Rees Lloyd
    Mr. Chairman and Honorable Members of the Subcommittee on the 
Constitution:
    It is my great honor to appear before you today to offer testimony 
in support of the passage of the Public Expression of Religion Act, HR. 
2679, PERA, on behalf of The American Legion, the largest wartime 
veterans' organization in the world with 2.7 million members. It is 
also poignant that I should appear before you on June 22, the 
anniversary of Congress' recognition of the Pledge of Allegiance in 
1942, and the day on which in 1944 what has been described as the 
greatest social legislation of the 20th Century, the GI Bill, was 
signed into law.
    In testifying before you, I preface my remarks by stating that I do 
not appear before you as an inveterate hater of the American Civil 
Liberties Union (ACLU) or related organizations bringing Establishment 
Clause litigation and seeking and receiving taxpayer-paid attorney fees 
therefore, although I believe that PERA must be passed to stop the 
exploitation of the law for attorney fee profits in such cases.
    I have been a civil rights attorney for some twenty-five years. I 
was an ACLU of Southern California staff attorney for approximately two 
years immediately after graduating from law school and passing the 
California Bar, and had been on a fellowship with the ACLU while in law 
school. I have devoted my professional career to the defense of civil 
and workers rights. Among other things, I was for some twenty years, 
and until the day of his death and beyond, a volunteer attorney for the 
late Cesar Chavez, the founder and president of the United Farm Workers 
of America, AFL-CIO, whom we honor in California today for his great 
contributions to civil rights. Cesar Chavez was, indeed, a great 
American, he mentored me when I was an independent trucker engaged in a 
nationwide strike during the so-called Arab Oil Embargo, and it was 
Cesar Chavez who urged me to go to law school and his recommendation 
that secured my admission. It is a little known fact that Cesar Chavez 
was also a veteran, serving four years in the U.S. Navy when his 
country called. He was, in his humility and self-sacrifice, the 
greatest man I ever knew, or will know, and I will always walk in his 
shadow.
    I state this not for self-aggrandizement, but, rather, to indicate 
to you that I speak to you from the heart, and based on a lifelong 
commitment to the defense of civil rights, from participation in 
Resurrection City in the Poor People's Campaign of Dr. Martin Luther 
King in 1968, to the present moment, in which I am privileged to 
participate in a great cause, the cause of veterans, the cause of the 
defense of American values by The American Legion Family of Legion, 
Auxiliary, and Sons of the American Legion, altogether involving some 4 
million members.
    Neither The American Legion, nor I as its representative in these 
proceedings, believe that passage of PERA is a partisan issue, a 
conservative or liberal issue, a Republican or Democrat issue, or an 
ideological one. The American Legion believes it is an American issue, 
a civil rights issue that transcends all partisan, party, or 
ideological allegiances.
    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. 
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.
    Concisely stated: The American Legion believes that passage of the 
Public Expression of Religion Act is essential for the protection of 
civil rights, for all Americans and not limited to special interests, 
and for the preservation of the purpose and integrity of the attorney 
fee provisions of the Civil Rights Act, 42 U.S.Code Section 1988, the 
Equal Access to Justice Act (EAJA), and all other federal statutes 
which were benevolently intended to benefit the poor and advance civil 
rights, and are now resulting in the opposite; are resulting in 
unintended financial enrichment; and are trammeling and throttling the 
exercise of First Amendment rights to freedom of speech, to petition 
for redress of grievances to the judicial and legislative branches,
    In particular, but without limitation, The American Legion believes 
this reform legislation is absolutely necessary if we are to be able to 
preserve and protect our veterans memorials, and, indeed, all public 
displays of symbols of our American heritage which have a religious 
aspect, from litigative attacks under the Establishment of Religion 
Clause of the First Amendment by special interests, epitomized by, but 
not limited to, the ACLU, the primary source of such Establishment 
Clause litigation, and the primary recipient of literally millions of 
dollars of attorney fees from such litigatio--even though the ACLU in 
fact has no actual attorney fees.
    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. Notwithstanding, the ACLU regularly seeks, and receives, 
attorney fees in Establishment Clause cases at market rate, usually 
$350 an hour in California. Although the courts know that ACLU clients 
in fact incur no attorney fee obligation, and that ACLU incurs no fee 
obligation to volunteer cooperating attorneys, as far as known, no 
judge has simply said ``no'' to ACLU attorney fee requests, even though 
there is no evidence that any attorney fees were incurred. Thus, 
benevolently intended fee provisions are being used as a bludgeon 
against public entities to surrender to ACLU's demands, and to obtain 
profits in the millions. (See, examples cited below, and in American 
Legion Magazine reports submitted as Attachments hereto.)
    Further, it must be emphasized that there is nothing in the law 
today to bar declared enemies of America, including without limitation 
terrorists who we are warned are in fact in our midst, from following 
the precedents being set by the ACLU and others to bring lawsuits to 
destroy or desecrate our veterans memorials, or other public displays 
of symbols of our American history and heritage if they contain a 
religious aspect, and then to exploit federal law, including the Civil 
Rights Attorney Fees Act, 42 U.S. Code Section 1988, and related acts, 
including the Equal Access to Justice Act (EAJA), which also should be 
reformed, to demand that the courts award them taxpayer-paid attorney 
fees for such Establishment Clause litigation attacks.
    Frankly stated, if PERA is not passed, if EAJA and all other 
federal statutes which may provide attorney fees in Establishment 
Clause cases are not also reformed, there is nothing in the law to 
prevent such an abuse and exploitation by terrorists or their 
sympathizers.
    The American Legion urges this reality to be considered in acting 
on PERA.
    The threat of imposition of such fees is having other, and very 
real, consequences: Benevolently intended attorney fee statutes 
designed to advance First Amendment rights, including the right to 
petition for redress, are now being exploited for financial profit in 
Establishment Clause litigation, to effectively prevent The American 
Legion and others from meaningful participation in such Establishment 
Clause litigation in the exercise of the right to petition. Simply 
stated, as an attorney, acting under the Code of Professional 
Responsibility, I must advise The American Legion and others I 
represent based on what the law is, not what I would like it to be. 
Without PERA, I necessarily have to advise The American Legion that if 
the organization does seek to intervene in lawsuits against veterans 
memorials as a party, it risks having a court order it to pay the 
attorney fees of the ACLU.
    Thus, the very threat of imposition of attorney fees is having a 
chilling affect on the exercise of fundamental First Amendment rights.
    Further, the threat of imposition of attorney fees in Establishment 
Clause controversies is effectively depriving Americans of the right of 
speech and to petition elected bodies for redress because those elected 
bodies at the local level cannot in fact consider contrary views and 
deliberate because they so fear imposition of attorney fees in such 
matters by the courts that they believe they have no deliberative 
choice as they must protect taxpayer funds which are needed for 
essential local services. In short, their minds are made up before the 
first objection of a citizen is heard, nullifying effective exercise of 
the freedom of speech and to petition for redress before local elected 
bodies.
    Thus, the citizen's right to be heard, and the very deliberative 
process of our representative democracy, are being distorted and denied 
by the threat of, and actual imposition of, attorney fees on taxpayers 
in Establishment Clause litigation.
    The threat of imposition of attorney fees is very real, and it 
manifestly is being used as a bludgeon by the ACLU and others to compel 
surrender to their demands to in effect secularly cleanse the public 
sphere, including at veterans memorials.
    Although most Americans remain unaware of it--and are outraged when 
they learn of it--Courts are awarding taxpayer-paid attorney fees to 
the ACLU and others literally in the millions of dollars annually, 
against towns, school boards, cities, counties, states, and the 
potential of imposition of such fees on The American Legion or others 
who would desire to intervene in such cases to participate fully in 
those judicial proceedings, as parties, to apprise the judiciary of 
their views on the importance of protecting our veterans memorials or 
other public display of symbols of our American heritage.
    Passage of PERA is essential as the very threat of imposition of 
attorney fee awards in Establishment Clause cases, including those at 
veterans memorials, has intimidated elected bodies into surrender to 
the demands of the ACLU and others to remove or destroy symbols of our 
American heritage if they have a religious aspect, rather than run the 
risk of imposition of often massive attorney fees on taxpayers, or upon 
intervening private parties, like The American Legion in defense of 
veterans memorials.
    All across the nation, lawsuits are being brought under the 
Establishment Clause to remove or destroy symbols of our American 
heritage from the public sphere if they have a religious aspect, 
principally the Christian Cross, but also the Star of David, both of 
which are present in the hundreds of thousands in our twenty-two 
National Cemeteries, from Arlington in the East to Riverside National 
Cemetery in California, and across the sea at American cemeteries in 
Europe, including Normandy Beach, where there are more than 9,000 
raised Crosses and Stars of David.
    There are countless veterans memorials which have stood for years, 
decades, even longer, erected by grateful Americans in small towns, 
cities, counties, states, and considered by most Americans as sacred 
places as their manifest purpose is to honor, and call to the 
remembrance of succeeding generations, those Americans who served and 
sacrificed in defense of our American freedom.
    Today, all of these veterans' memorials are threatened by dangerous 
precedents being set in Establishment Clause lawsuits brought by 
individuals and special interest organizations, epitomized by the ACLU, 
who are offended by veterans memorials because they contain a Cross or 
other religious symbol, or a prayer, as in the Mojave Desert Veterans 
Memorial case (Buono vs. Norton), and the Mt. Soledad National War 
Memorial litigation in San Diego, which has become a focus of national 
controversy in light of the fact that, on the one hand, a federal judge 
has ordered the City of San Diego to tear down the cross which has 
stood at the memorial for more than half a century or he will fine the 
taxpayers $5,000 a day; and, on the other hand, a California Superior 
Court Judge overturned a special election in which 76% per cent of the 
voters voted to transfer the Mt. Soledad National War Memorial to the 
federal government. The attorney for the plaintiff in the case, 
reportedly backed by the ACLU, has collected thousands of taxpayer-paid 
dollars in attorney fee awards in that case.
    In the Mojave Desert Case, the solitary cross, erected on a rock 
outcrop eleven miles off the road in the desert by veterans in 1934 to 
honor World War I veterans, has been declared to be an unconstitutional 
violation of the Establishment Clause because in 1994 it was 
incorporated into the Mojave Desert Preserve. Although Congress passed 
legislation sponsored by Rep. Jerry Lewis, my Representative in 
California, to transfer the one-acre Mojave Desert Veterans Memorial to 
private parties, veterans, in exchange for five acres of private land, 
the federal judge, on motion of the ACLU, nullified the act of 
Congress, finding its action violates the Establishment Clause, and 
ordered the Executive Branch to tear down the Cross. That case is on 
appeal. So far, the ACLU has reaped $63,000 in attorney fees to destroy 
that veterans' memorial.
    These veterans' memorials deserve to be defended, and The American 
Legion is ready and able to do so. But the threat of imposition of 
attorney fees creates a bar to intervention in these case with full 
party status not only against the public entities which cannot risk 
imposition of attorney fees, but private non-profit organizations like 
The American Legion which have fiduciary obligations to their members 
and cannot effectively exercise the right to petition for redress in 
Establishment Clause cases because of the risk that devastating 
attorney fees may be imposed.
    The enormity of the threat of imposition of fees by courts should 
not be discounted. For but a few examples:

          In its Establishment Clause lawsuit against San Diego 
        to drive the Boy Scouts out of Balboa Park, the ACLU received 
        some $950,000 in attorney fees when the City settled rather 
        than risk even more attorney fees being awarded in the 
        litigation.

          In the Ten Commandments Case in Alabama, the ACLU and 
        sister organizations received $500,000 in attorney fees.

          In Washington State, the ACLU received $108,000 from 
        the Portland School board in a case brought for an atheist to 
        prevent the Boy Scouts from recruiting in the schools on non-
        class time.

          In Illinois, the ACLU brought suit against the 
        Chicago Schools to drive out the Boy Scouts out of the schools, 
        and the Department of Defense to drive the Boy Scouts off 
        military bases as sponsored troops. The Chicago schools quickly 
        kicked out the Boy Scouts and settled $90,000 on the ACLU to 
        avoid even larger court-awarded fees. The DoD entered a partial 
        settlement, and the case continued, resulting in a federal 
        judge finding that the DoD aid to the Boy Scout Jamboree, 
        supported by every U.S. President since its inception, is in 
        fact a violation of the Establishment of Religion Clause. ACLU 
        is seeking attorney fees under the Equal Access to Justice Act 
        in that case.

          In Nebraska, a federal judge overturned a referendum 
        in which 70% of the voters voted to define marriage as a union 
        of a human male and female, and imposed attorney fees of some 
        $156,000.

          In Los Angeles County, the Board of Supervisors voted 
        3-to-2 to remove a tiny cross from the County Seal when the 
        ACLU threatened to sue over it (but not over the Roman Goddess 
        Pomona whose figure dominated the Seal). The County will spend 
        approximately $1 million to remove the cross from all flags, 
        seals, badges, etc. The rationale for the three who voted to 
        surrender to the ACLU: The threat of an even greater amount 
        ordered in attorney fees to the ACLU if the County fought and 
        lost.

          The City Council of Redlands voted, unwillingly, to 
        remove the cross from its City Seal when the ACLU threatened 
        lawsuit. The sole reason given for the vote: The fear of a 
        court-awarded attorney fees to the ACLU being imposed on 
        limited taxpayer-funds needed for city services. Redlands 
        cannot afford to change all of the seals as L.A. County is 
        doing. Therefore, among other things, Redlands is calling in 
        all employees who have badges, police, fire, emergency 
        services, et al., and drilling a hole through the Cross on the 
        badges to comply with ACLU's demands.

          In the Mojave Desert WWI Veterans Memorials case, the 
        ACLU pleaded for fees under both the Civil Rights Act, 42 
        U.S.C. Section 1988, and EAJA, and ultimately received some 
        $63,000 in attorney fees under the EAJA.

    A recent case exemplifies, I believe, the abuse and exploitation of 
the Civil Rights Act attorney fee provisions for pure profit by the 
ACLU, and the ACLU's use of the Civil Rights Act to terrorize local 
elected bodies.
    That case is the now famous ``Dover Design Theory Case.'' There, 
the ACLU sued the Dover school board after it voted to include teaching 
of the ``design theory'' along with Darwinian theory in science 
classes. The ACLU was represented by a cooperating, pro bono law firm.
    Whatever one thinks of the ``design theory'' or the merits of the 
case, the attorney fee outcome should be carefully considered. The 
judge ruled that the teaching of ``design theory'' violates the 
Establishment Clause. The court then awarded the ACLU $2 million in 
attorney fees to be paid by the school board from taxpayer-funds needed 
for the schools.
    The court imposed this massive attorney fee award on the taxpayers 
and schools even though the pro bono law firm representing the ACLU 
declared that in fact it waived all attorney fees. Thus, the $2 million 
is pure profit for the ACLU.
    The ACLU added to this set of facts the following: The ACLU 
announced to the media after its victory over the school board that it 
was only going to demand that the school board pay it $1 million 
instead of $2 million. The ACLU stated it was doing so because the 
school board members who had voted for the teaching of ``design 
theory'' had been removed from the school board in elections and 
replaced by school board members who agreed with the ACLU's position.
    Thus, the ACLU announced it would not ``punish'' the school board 
by demanding the full $2 million.
    However, it publicly warned that it would not be so benevolent in 
the future if any other school board did not comply with ACLU's 
demands.
    I respectfully suggest there could not be better evidence of the 
need for PERA, nor better evidence that the ACLU is exploiting the 
Civil Rights Act for profit and using its attorney fee provisions as a 
club to ``punish,'' in ACLU's own words, elected local agencies, than 
the very public statements of the ACLU in the Dover Design Case.
    As one who was active in what was once called the Civil Rights 
Movement, and one who in that movement supported and fought for the 
attorney fee provisions of the Civil Rights Act and EAJA, and as a 
former ACLU attorney, I am personally appalled and ashamed at the 
ACLU's disgraceful abuse of the Civil Rights Act for its own political 
and economic gain. People fought, and some died, in the civil rights 
movement for these laws to benefit the poor and make real the promise 
of our American freedoms. What is happening is shameful.
    Congress should end this abuse.
    The American Legion is strongly in support of passage of PERA, and 
similar reform of the EAJA and all federal fee-shifting statutes in 
Establishment Clause cases, as an absolutely necessary reform of the 
law to preserve and protect our civil and constitutional rights, and to 
protect the integrity of the Civil Rights Act, EAJA, and related acts.
    At the American Legion National Convention in 2004, more than 4,000 
delegates voted unanimously for Resolution 326, Preservation of Mojave 
Desert Memorial, which I wrote and which calls on Congress to amend the 
Civil Rights Act, 42 USC Section 1988 to eliminate the authority of 
judges to award attorney fees to the ACLU, or anyone else, in 
Establishment Clause cases. (See, Attachment.) At that time, Past 
National Commander Thomas P. Cadmus of Michigan called on ``all 
Legionnaires, and all Americans, to stand up to the ACLU and defend our 
American values.''
    At the American Legion National Convention in 2005, delegates 
unanimously voted to adopt Resolution 139, to amend the EAJA in the 
same way as the Civil Rights Act to eliminate the courts' power to 
impose attorney fees in Establishment Clause cases when the federal 
entities are the defendants, as in the Boy Scouts Jamboree case. (See, 
Attachments.)
    American Legion National Commander Thomas Bock, the primary 
spokesman for The American Legion in all matters, including PERA, vowed 
upon his election at the 2005 National Convention that The American 
Legion would stand and fight to defend our veterans memorials, our 
American values generally, and to support passage of PERA against the 
terrorizing litigation attacks of the ACLU and others.
    In 2006, under National Commander Bock's leadership, The American 
Legion published ``In the Footsteps of the Founders,'' explaining why 
PERA is needed. It was sent to all 15,000 American Legion Posts along 
with additional material on DVD.
    In his recent call for defense of the Mt. Soledad National War 
Memorial, Commander Bock stated:
    ``What is next? Will the ACLU target the 9,387 crosses and Stars of 
David honoring World War II heroes killed during the invasion of 
Normandy? The Public Expression of Religion Act, H.R. 2679, may be the 
only way to stop this assault.''
    The American Legion does mean to stand and fight to defend our 
veterans' memorials against Establishment Clause litigation assaults. 
But we need a level playing field--and that means the end to one-sided 
risks of attorney fee awards to the ACLU, or others, but not against 
the ACLU or others, because, under decisional law, the fees do not go 
to the ``prevailing party'' because, when the ACLU loses, it is 
shielded from fee transfer unless it can be shown the suit was legally 
frivolous because the filing of a lawsuit against a governmental entity 
is itself a First Amendment right.
    With regard to Commander Bock's reference to the American Cemetery 
at Normandy Beach, may I close with a personal observation which, I 
believe, reflects what is really at stake, and how much defense of 
veterans memorials means to us.
    I am proud to be a member of Memorial Honor Detail, Team 12, 
Riverside Post 79, at Riverside National Cemetery, the home of the U.S. 
National Medal of Honor Memorial, and the U.S. National POW/MIA 
Memorial, the centerpiece of which is a dramatic sculpture of a 
prisoner of war by artist and Legionnaire Lewis Lee Millett, Jr., a 
veteran who waived the entire $100,000 artist's commission so the funds 
could be used to complete the memorial surrounding the sculpture.
    We fear that that sculpture in the National POW/MIA Memorial may 
become a target of an Establishment Clause lawsuit, because artist, 
veteran, Legionaire Lee Millett, Jr., engraved the POW's Prayer at the 
base: ``I look not to the ground, for I have no shame. I look not to 
the horizon, for they never came. I look to God, I look to God . . .''
    There are more than 80,000 gravesites at Riverside National 
Cemetery now, almost all with a Cross or Star of David or other 
religious symbol. We fear for them, too. The ACLU has said it would not 
sue the grave markers because that is a matter of ``family choice.'' 
That, constitutionally, is utterly specious: If the religious symbol is 
unconstitutional under the Establishment Clause because it is on 
federal ground, as the ACLU otherwise insists, no person can ``choose'' 
to commit an unconstitutional act. Further, who would have dreamed the 
ACLU would file a lawsuit against the solitary cross honoring WWI 
veterans in the middle of the desert to which one has to drive to be 
offended.
    MHD Team 12, Riverside Post 79, is the first volunteer team to 
perform more than 1,200 military honors services for our fallen 
comrades.
    The Captain and founder of Team 12 is Robert Castillo, who is a 
Native American who has served in many Legion offices in California and 
has led practically all 1,200 MHD Team 12 services at RNC, carrying the 
American Flag to lead the processions.
    Robert Castillo, as a teenager, participated as a member of the 
United States Navy in the D-Day landing at Normandy Beach on June 6, 
1944. He fought on both Omaha and Utah beaches. His ship was sunk. He 
was terribly wounded, and received a Purple Heart among other medals.
    On the anniversary of D-Day, June 6, 2006, Robert Castillo, who is 
affectionately known as ``Uncle Bobby'' by Legionnaires throughout 
California, led MHD Team 12 through six military honors services, in 
heat that reached 100 degrees. He never wavered in those services; he 
has never wavered in service to America as a teenager on D-Day, nor any 
day since, as he continues to serve America in The American Legion.
    He asked me to convey to this Committee, and this Congress, his 
support for PERA, and his common-sense view which I believe reflects 
the view of almost all the 2.7 million members of The American Legion:
    ``How can they give our tax money to the ACLU to sue our veterans 
memorials? I don't understand it. It's wrong. They shouldn't be allowed 
to do this. Are they going to sue our cemetery at Normandy Beach, and 
then take our money for doing it? We can't let them do that. My buddies 
are buried there.''
    If you heed no other voice, I would appeal to you to hear the voice 
of Legionnaire Robert Castillo, and reform the law by passing PERA, and 
comparable reform of EAJA and all other federal fee statutes in 
Establishment Clause cases. Do not allow the law to be exploited for 
profit in attacks under the Establishment Clause against our veterans' 
memorials and cemeteries. Give us the level playing field needed to 
allow us to defend the memorials, and gravesites, of our fallen 
American heroes.
    I thank you for allowing me to testify on behalf of The American 
Legion.

                               ATTACHMENT
































    Mr. Chabot. Thank you very much, Mr. Lloyd.
    Mr. Staver, you are recognized for 5 minutes.

   TESTIMONY OF MATHEW STAVER, FOUNDER AND CHAIRMAN, LIBERTY 
    COUNSEL, INTERIM DEAN, LIBERTY UNIVERSITY SCHOOL OF LAW

    Mr. Staver. Thank you, Mr. Chairman, Members of the 
Committee. Thank you for inviting me.
    Sections 1983 and 1988 are in derogation of the American 
rule. The American rule essentially says that each party bears 
his own cost for the cost of the litigation. These sections are 
particularly apropos in the normal civil rights cases where 
plaintiffs are ill-financed and where the law has some relative 
predictability.
    However, in the Establishment Clause cases, many if not 
most of the plaintiffs today, based on the rise of public 
interest law firms, will finance the case by the public 
interest law firm and, therefore, there will be no opposition 
for these individuals to come to court if this Committee passes 
this particular bill.
    Moreover, Establishment Clause jurisprudence is the most 
unpredictable and conflicting area of law today. There have 
been and remain sharp disagreements among the justices of the 
United States Supreme Court over the meaning and the 
application of the Establishment Clause. In an area where the 
law is so conflicting and the court decisions are so confusing, 
supporting every conceivable position to the contrary, it makes 
little sense to award damages and attorney's fees to plaintiffs 
with diametrically opposed positions on the same issue.
    Instead of encouraging ill-financed plaintiffs to vindicate 
their rights, these statutes have become a financial bonanza to 
attorneys on both sides of the Establishment Clause. While 
conflicting court opinions will inevitably occur in any area of 
law, it is particularly troubling when conflicting opinions are 
the rule rather than the exception.
    In my written testimony, I discuss in detail absurd 
examples of court decisions that reached exactly opposite and 
irreconcilable results. One sad example involves New York City 
public school funding cases, which were litigated at an 
enormous expense. The same school district that paid huge 
attorney's fees after losing its case at the United States 
Supreme Court eventually won 10 years later coming back 
following a second challenge.
    In the Augustini case, the court overruled its prior 
precedent involving the same New York City public school 
district. Scarce tax dollars, however, were used to divert 
through attorneys rather than to disadvantaged school children. 
By providing damages and a fee shifting statute in such a 
confused area of law, the complaining plaintiff often uses the 
threat of attorney's fees and costs and damages to force 
Government officials to a desired result, whether or not the 
result is the right one.
    The confused and conflicted opinions of the Establishment 
Clause jurisprudence originate with the United States Supreme 
Court. The Court recently used several tests--or the court 
currently uses several tests, some of which conflict with one 
another. And sometimes the Court foregoes using any test at 
all.
    The Court uses the oft-maligned three-pronged Lemon test. 
The court later modified these three prongs to two prongs. But 
in certain institutional funding cases, the Court resurrects 
the third prong. For several years, the Court added the so-
called ``political divisiveness prong'' but then recently 
overruled itself and eliminated this prong.
    The Court also uses a historical analysis or the Marsh 
test. In most cases, the Marsh test cannot be reconciled with 
the Lemon test. The plaintiff can win under one test and lose 
under the other. And we are left with little guidance to 
determine which test should be used.
    The Court in Lee v. Weisman developed a so-called coercion 
test. But the justices are not in agreement when it should be 
used. Nor do they agree whether it is coercion with 
psychological only or whether it involves some kind of penalty 
or force.
    Knowing the problem, Justice Sandra Day O'Connor, shortly 
before her retirement, proposed a brand-new test in the Newdow 
case that was designed to be used in limited circumstances. 
Justice Thomas has recently advocated that the Establishment 
Clause does not even apply to the States, nor does it bind the 
States. Then, of course, sometimes the Supreme Court uses no 
test at all and, even worse, provides no explanation as to why 
it used no test.
    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 Government officials with the threat of damages and 
attorney's fees for a mere misstep in this constitutional 
minefield.
    Another peculiarity with the Establishment Clause that 
makes sections 1983 and 1988 inappropriate is the exception to 
the normal rules regarding standing. In every other area of 
law, the plaintiff must experience a direct and concrete 
injury. But in the Establishment Clause context, Federal courts 
have relaxed these requirements and carved out significant 
exceptions.
    In most lower Federal courts, a plaintiff can bring a 
challenge to the Establishment Clause simply because the 
litigant claims that he or she is offended by the imagery, the 
words or the alleged action. This exception to the general rule 
has opened up the floodgates of litigation.
    It is because of these floodgates of litigation and it is 
because of the unique situation regarding the Establishment 
Clause that I believe, although these statutes, 1983 and 1988, 
may be applicable in other areas, even first amendment free 
speech or free exercise, they are wholly inapplicable in the 
Establishment Clause.
    If you talk to any judge or any professor, the issue of the 
Establishment Clause is the most confusing area of 
constitutional law.
    I argued one of the Ten Commandments cases last year. And I 
can tell you no one can make a determination as to what the 
rationale is between those two cases. In one case, they used a 
brand-new modified Lemon test, in the Kentucky case. And in the 
other case, they essentially used no test at all.
    One court recently on December 20, 2005, says that the 
Supreme Court on the Establishment Clause have left the lower 
Federal court judges in first amendment purgatory. For these 
reasons, we shouldn't punish Government officials when our own 
justices of the Supreme Court are conflicted and confused over 
the meaning of the Establishment Clause.
    Thank you very much.
    [The prepared statement of Mr. Staver follows:]
                 Prepared Statement of Mathew D. Staver










































































    Mr. Chabot. Thank you.
    Mr. Stern, you are recognized for 5 minutes.

           TESTIMONY OF MARC STERN, GENERAL COUNSEL, 
                    AMERICAN JEWISH CONGRESS

    Mr. Stern. Mr. Staver----
    Mr. Chabot. If you could turn the mike on.
    Mr. Stern. Mr. Staver has given the lies to the charge that 
the ACLU would not litigate if there were not attorney's fees. 
The New York City case he talked about was finally litigated in 
PEARL v. Nyquist in 1973 3 years before the attorney's fees 
statute was brought. My predecessor was lead counsel. If there 
were attorney's fees, it was later in Aguillard when the other 
side won, but not when the original case, PEARL v. Nyquist, was 
brought.
    Secondly, this bill has two components. We have heard not a 
word from its proponents about the limitations on remedy, 
which, as I read the bill, include even a ban on declaratory 
judgments, nominal damages, punitive damages, which we make 
available to prisoners even under the Prison Litigation Reform 
Act.
    As to attorney's fees, this act leaves citizens worse off 
than inmates in prison. Inmates get capped attorney's fees. 
Here a proven violation of the Establishment Clause results in 
no attorney's fees.
    Secondly, it is simply not true that the Establishment 
Clause is uniquely difficult. I defy anybody to explain when 
regulations become taking. I defy anybody to explain to me in 
great detail what the public forum doctrine amounts to.
    There are any number of cases--I have advised school 
districts--a case called Wigg v. Sioux Falls School District 
where a teacher taught in her own classroom immediately after 
school in a Bible club. I believe, others believe that that is 
a substantial Establishment Clause reason for the school to say 
you can't teach a Bible club in the same classroom you teach 
during the day as a public school teacher. I think there is a 
Supreme Court case on point directly controlling.
    I told the school board they ought to take an adverse 
decision of the Eighth Circuit to the Supreme Court. And what 
they said to us was we can't afford to. We will have to pay 
attorney's fees for the other side. It is entirely--the bill's 
ban on attorney's fees is entirely irrational.
    If a teacher is disciplined for compelling students to 
bring--to pray, he or she can bring a first amendment free 
speech challenge, a free exercise challenge. And in the 
unlikely event that they prevail, they get attorney's fees. If 
by chance the student beats the teacher to the courthouse and 
brings an Establishment Clause claim on a clear, established 
violation of the Establishment Clause, they get no attorney's 
fees.
    The issues before the court will be exactly the same. The 
school district will raise free speech claims or free exercise 
claims on behalf of the teacher, or the teacher will intervene 
and raise those claims. The Establishment Clause issues in the 
case, the free speech claims in the case--who gets attorney's 
fees depends simply on who was first to the courthouse door. I 
suggest to you there is no rational difference between those 
two cases that justify this restriction.
    Finally, I would say the following. It is clear from the 
testimony of my colleagues on the panel that the chief beef 
here is not with the attorney's fees statute but with the 
substance of constitutional law. And that is plainly beyond 
this Committee's competence.
    There is a problem in one category of cases where there are 
conflicting constitutional rights and you have an award of 
attorney's fees to one side, whoever happens to win when there 
are plausible arguments all along on both sides. But that would 
put Mr. Staver's group out of the attorney's fees business. 
That would put ACLJ out of the attorney's fees business. And 
they, equally with the ACLJ, the American Center for Law and 
Justice, equally with the ACLU finance their operation with 
attorney's fees.
    The Wigg case, in which the teacher taught in her own 
classroom immediately after school, which the Wall Street 
Journal cited in my testimony, points out that kids feel 
attracted to the teacher they know, I think has substantial 
Establishment Clause problems. There is a conflict of rights 
there.
    If you are interested in not having the attorney's fees 
statute prevent people from litigating cases where there are 
plausible constitutional claims on both sides, then do it even-
handedly. Say, in cases in which the court finds that there is 
substantial constitutional arguments on both sides, 
constitutional argument, not merely policy argument, on both 
sides, you have the discretion to lower or cap fees. That would 
be fine. But I assure you it is not the ACLU that will be the 
chief victim of that, of that action. The action will come from 
the other side.
    Finally, because I have many friends in the ACLU. It is 
true that you have Ken Falk's letter. It is all equally true 
that when that letter was written it was perfectly clear that 
the school couldn't run a school graduation because the Supreme 
Court had said so the year before.
    A colleague of mine who was on the opposite side of the 
aisle in church-State cases used to make a living writing 
letters to school boards asking them to stop what he thought 
were constitutional violations. And I would call him up and I 
would say--I am not going to use his name--you know, ``Joe, the 
other organization that is your competitor, first they file a 
lawsuit, and then they settle for attorney's fees. Why do you 
write the letter first?'' He goes, ``Well, that is just not an 
ethical way to proceed.''
    If you think this is a problem only of the ACLU, you are 
wrong. Attorney's fees can be abused. They also make it 
possible to vindicate constitutional rights that otherwise 
would go unvindicated. If you want to deal with abuse, then 
deal with abuse. This bill doesn't deal with abuse. It deals 
with one section, one type of rights that the Committee happens 
to disfavor. That is not a permissible basis for legislation.
    [The prepared statement of Mr. Stern follows:]
                  Prepared Statement of March D. Stern














































    Mr. Chabot. Thank you.
    Professor Garry, you are recognized for 5 minutes.

    TESTIMONY OF PATRICK GARRY, ASSOCIATE PROFESSOR OF LAW, 
            UNIVERSITY OF SOUTH DAKOTA SCHOOL OF LAW

    Mr. Garry. Thank you, Mr. Chairman, Members of the 
Committee.
    It has already been discussed here the confusing and 
inconsistent status of the Establishment Clause jurisprudence. 
I would contend in disagreement with Mr. Stern that it is an 
unusually confusing and inconsistent area of the law. Teaching 
constitutional law, I make my living on making the students 
confused about doctrines in constitutional law. But it is 
particularly confusing when it comes to Establishment Clause 
doctrine.
    And I think there is a link between the fear that local 
government officials have in dealing with this area about what, 
in fact, does constitute an impermissible establishment of 
religion. And the court, in fact, has recognized that in 
several cases I cited to this Committee, the Lamb's Chapel 
case, the Rosenberger case, the Good News cases in which local 
government officials are, in effect, selecting out and 
discriminating against religious expression because of the fear 
that somehow any connection between that local governmental 
entity and this religious expression might be seen as an 
unconstitutional establishment.
    There have been--it has already been discussed--sort of the 
number of different tests that have been used to measure 
whether an establishment--impermissible Establishment Clause 
has occurred. And one can even see it sort of in comparing some 
of the cases that have taken place. For instance, government 
can pay for students to be bused to and from religious schools, 
but the government can't pay for busing trips during the school 
day for field trips for those students.
    Some Christmas creches on public property are okay. Others 
are not. It is due largely to the individual facts and context 
of each case and how the judges are going to interpret those.
    Prayers can be used to open legislative sessions, but they 
can't be used prior to Friday night football games.
    There is also indications in which local government 
officials or school boards in particular have singled out 
religious expression only to be told later on that, in fact, 
the Establishment Clause did not require their particular 
activity. One school even prohibited a teacher's assistant from 
wearing a cross on a necklace during school hours. Elsewhere, 
afraid of violating the Establishment Clause, school officials 
refused to let a student read a religious story as part of a 
class exercise on inspirational stories.
    Now, granted, Mr. Stern brings a good point. This Committee 
can't necessarily control or can't control really in any way 
what the Supreme Court does about the Establishment Clause. But 
that aside, it can do something about the costs and risks 
imposed by a Supreme Court that is very uncertain and 
inconsistent in this particular area.
    I might also add in response to the--sort of the general 
subject area of Section 1983. Section 1983 is a civil rights 
statute and meant to provide relief for violation of individual 
civil rights. As was brought up, it is used to vindicate when 
there are violations of a person's right to vote.
    And, in fact, in the religious area if an individual is 
discriminated against or infringed on their religious liberty 
in some way, they have the opportunity to bring a free exercise 
clause--and that free exercise lawsuit. And under that, they 
can pursue this kind of remedy. And that is a real individual 
right remedy.
    However, the Establishment Clause within the context of the 
Constitution is not necessarily an individual right provision, 
not at all in the sense that free speech is or an individual's 
right to vote or an individual's right to practice their 
religion. It is a--it is a structural kind of provision which 
deals with the relationship between religion and Government in 
society.
    And with that, I will sum up and thank the Committee for 
inviting me here today.
    [The prepared statement of Mr. Garry follows:]
                 Prepared Statement of Patrick M. Garry


































































































































    Mr. Chabot. Thank you very much, Professor Garry.
    We are now at that time where Members of the panel here 
will have 5 minutes to ask questions. And I will yield myself 5 
minutes for that purpose.
    Mr. Lloyd, if I could begin with you. First of all, let me 
thank you for your service to our country.
    Mr. Lloyd. Thank you.
    Mr. Chabot. In your opinion, is there any danger that the 
crosses, for example, at Arlington Cemetery that are honoring 
our brave men and women who have given their lives in defense 
of this country could fall under the argument that it is in 
violation of Establishment Clause and potentially have 
difficulties there?
    Mr. Lloyd. I think there is a great danger of that 
happening because of the precedents that have been set at 
Mojave Desert Veterans Memorial case and Mount Soledad case. 
And we do not in the American Legion consider this to be 
nonsense, this legislation or this threat. There is absolutely 
nothing in the law right now to prevent declared haters of 
America, including terrorists in our midst or their 
sympathizers, from following the Mojave Desert case precedent 
or Mount Soledad and suing our veterans memorials because the 
symbols there are on Federal property. And that is the premise 
upon which these decisions are based.
    I am on an honor detail at Riverside National Cemetery, 
which is the home of the national medal of honor recipient 
memorial and the POW-MIA memorial. And the centerpiece of which 
is a dramatic sculpture of a POW sculpted by a veteran, Lee 
Millett, Jr., a member of the American Legion who waived the 
entire $100,000 artist's fee so the memorial could be built. 
Lee Millett engraved on the base of that memorial a prayer: ``I 
look not to the ground because I have no shame. I look not to 
the horizon for they never came. I look to God. I look to 
God.''
    Today under the jurisprudence that we are faced with, that 
is indeed vulnerable. A lawsuit could be mounted on that. And 
we need to be able to defend against it. There is 80,000 graves 
there, almost all of them with crosses or Stars of David or 
other symbols. They are at risk.
    At Normandy Beach, there are over 9,000 raised crosses and 
Stars of David. They are on the American cemetery. It is 
considered our property administered by the French. They are at 
risk. All the terrorist sympathizers, one of the Osama bin 
Laden's minions, has to do is to say look at this precedent, 
walk into a Federal court, file the suit, win it like shooting 
ducks in a barrel and get the money.
    Now, I understand that in the testimony of Mr. Stern--and I 
respect his testimony--he said, of course, by denying attorney 
fees the act makes it likely that few suits would be brought, 
even in cases where an injunction would be appropriate. I 
happen to agree with his analysis in that regard.
    But I don't think for a minute that there is anything in 
the law today that will protect us from such suits by 
terrorists or their sympathizers and their right to get 
attorney fees because you can't give it to the ACLU and deny it 
to Osama bin Laden. And we have nothing to protect us except 
passage of this bill, the Public Expression of Religion Act. 
And I urge its passage.
    Mr. Chabot. Thank you.
    Mr. Staver, if I could go to you next. Are you aware of 
cases where cities and towns have felt that religious 
references in their public square were constitutional but they 
could not afford to defend those references?
    Mr. Staver. Absolutely, Mr. Chairman. In fact, we receive 
calls all the time from around the country. Liberty Council has 
been in existence since 1989. And we provide our services at no 
cost to the plaintiff or to the defendant, depending upon 
whether the constitutional principle is one that should be 
defended. But even in those situations where we would represent 
county or Government officials at no cost to them, the fact is 
many of them back down from a threat, just simply a letter or 
even a phone call because of the possibility that they would 
have enormous financial burdens at the end of this litigation 
if they were to lose.
    Take, for example, the Ten Commandments case. The Ten 
Commandments case is, I think, universally--and Mr. Stern, I am 
sure, will agree with me on this. In fact, I don't know anybody 
on either side of this aisle, whether you are more 
separationist or less separationist, that doesn't agree with 
this proposition. And that is this. The Supreme Court has 
absolutely given confusing and conflicting notions with regards 
to how do you deal with the Ten Commandments.
    In the Ten Commandments case that I argued, the court 
actually said you could have an identical Ten Commandments 
display in one county or one part of the State that would be 
constitutional but another one that looks exactly the same in 
another part of the county, a different neighboring county 
could be unconstitutional. In fact, you could have the same 
thing in the same county in different governmental buildings. 
And the sole difference between the constitutionality of one 
versus the other, even though they are identical, is the 
subjective statements that were made by the governmental 
officials, whether they may have referenced God when it was 
going up or may they have referenced, in fact, that it was just 
simply an educational display.
    Now, when you are dealing with situations like that and 
somebody might have made a statement or somebody who was 
religiously affiliated came by and made a statement at the 
display of these particular monuments or displays and it is 
printed in the newspaper, that alone could make something 
unconstitutional. And, in fact, in that case, Justice Souter 
cited a newspaper article of a clergy who showed up at the 
actual display whose clergy was the pastor of one of the 
governmental officials. And because of that used that as at 
least an example of how they must have had some religious 
motivation and, therefore, it is unconstitutional.
    And this same display since I argued the case we have also 
defended it in other parts around the country at the Federal 
courts of appeals has been upheld, the same, exact, identical 
display at the 7th Circuit Court of Appeals and now at the 6th 
Circuit Court of Appeals. And it is the 6th Circuit Court of 
Appeals on December 20, 2005, that says the Supreme Court has 
left us in first amendment purgatory.
    So what that means is this. When we receive calls or see 
situations where someone gets a letter, whether it be from the 
ACLU or Americans United for Separation of Church and State or 
someone else, and they are threatened with litigation, even 
though they wouldn't have to pay their attorney's fees for 
having their own defense, the risk of having to factor this 
into a limited school board budget or city council budget is 
too great for them to bear. And so, they back down simply 
because of threat.
    Mr. Chabot. Thank you very much.
    My time has expired, so I am out of time for questions.
    The gentleman from New York, Mr. Nadler, is recognized for 
5 minutes.
    Mr. Nadler. Thank you, Mr.--thank you, Mr. Chairman.
    First of all, let me say that it would be a great day for 
this country when the terrorists bring lawsuits instead of 
plant bombs.
    Mr. Stern, can you cite any case in which a religious 
symbol on an individual grave marker has been challenged in 
court on establishment grounds?
    Mr. Stern. No, that charge is demagoguery. Nobody is going 
to bring it. That is clearly the statement of the person or the 
family----
    Mr. Nadler. That being the cross or the Star of David on 
the grave?
    Mr. Stern. There is no such case. I know of no organization 
that has even contemplated such a lawsuit. All the lawsuits 
involve symbols erected by the Government owning the cemetery 
and represent the Government's speech, not the speech of 
individuals. I might add, just to be technical, that a lawsuit 
against the Federal Government is not relevant to today's 
discussion because the attorney's fees statute does not apply 
against the Federal Government.
    Mr. Nadler. Thank you.
    Mr. Stern. And so, all those things----
    Mr. Nadler. Thank you.
    Mr. Staver, have you or any organization you have 
represented been awarded attorney's fees?
    Mr. Staver. Yes, we have.
    Mr. Nadler. Thank you. Do you know what percent of the 
budget of Liberty Council of the American Center for Law and 
Justice comes from attorney's fees?
    Mr. Staver. I don't know, but I know from ours----
    Mr. Nadler. Could you submit it for the record, please?
    Mr. Staver. I could submit it.
    Mr. Nadler. Thank you.
    Mr. Staver. I know from ours it is very little.
    Mr. Nadler. Thank you, but submit it for the record, 
please.
    And could you provide a record of the fees you have been 
awarded of this type in dollar amounts as a percentage of the 
annual budget for the record, as you just said?
    Mr. Staver. We could do that.
    Mr. Nadler. Thank you.
    Mr. Staver. It is a public record.
    Mr. Nadler. Mr. Stern, if the Government willfully violates 
an injunction under this act, what remedy is available apart 
from the attorney's fees issue?
    Mr. Stern. If it violates an injunction under the act, 
presumably all the remedies that are available, although, 
whether that includes damages afterwards or attorney's fees for 
enforcing the original injunction, is entirely unclear.
    Mr. Nadler. Well, under this bill it would not include----
    Mr. Stern. There might be, there might be nothing. So that, 
in fact, the San Diego case, which Mr. Lloyd talks about, has a 
$900,000 or $500,000 attorney's fees because for 15 years the 
city of San Diego and its supporters have simply refused to 
abide by a Federal court order. And what this bill will do, by 
taking away the attorney's fees, is encourage people to ignore 
Federal court orders because there is no penalty for violating 
a Federal court order, a binding Federal court order.
    Mr. Nadler. And also--but under this bill if you violate an 
injunction, there would be no damages, correct?
    Mr. Stern. There would be no damages. And worse yet, in a 
case in which you could----
    Mr. Nadler. So what would stop under this bill--what would 
stop a recalcitrant governing authority and a local government 
from violating a Federal court injunction?
    Mr. Stern. Nothing. And what is worse is even if you only 
got a--if you only had a case where you could get declaratory 
relief--for example, a one-time violation of the Establishment 
Clause where an injunction is impossible because there is no 
possibility of future repetition--you are utterly without 
remedy, no attorney's fees, no nominal damages, no declaratory 
judgment and no punitive damages. It is an open invitation for 
people to defy the Constitution in the interest of political 
convenience at their will.
    Mr. Nadler. Thank you, Mr. Stern.
    Finally, take a case where the law is unclear. A teacher 
prays after school. I think you made reference to a given case. 
She claims she has a free speech right to do so. The school 
thinks--the school thinks it violates the Establishment Clause. 
How would this legislation affect the school's calculus and 
deciding what to do about it?
    Mr. Stern. It would not because the teacher is free to 
bring a case. She gets attorney's fees. The school board in any 
event is not entitled to attorney's fees if it is vindicated. 
In fact, it is even unclear if a third party, let us say a 
parent of a student, intervened in that case and the school 
board won, whether the intervener would be entitled to 
attorney's fees.
    Mr. Nadler. It is unclear under the current law or under 
the statute?
    Mr. Stern. It is unclear both. That would not change.
    Mr. Nadler. So, therefore, this doesn't affect----
    Mr. Stern. But the calculus doesn't change for the school 
board. They are still faced with the possibility of attorney's 
fees if they lose, nothing if they win. And a completely viable 
Establishment Clause claim does not get----
    Mr. Nadler. Would this include forced prayer in violation 
of Barnette?
    Mr. Stern. Does this include--this includes any 
Establishment Clause violation, including as cited in my 
testimony----
    Mr. Nadler. So there would be no remedy, then?
    Mr. Stern. No remedy. Cases where, as the school board in 
Montgomery County did and Ann Arbor did, liberal bastions where 
they imposed a liberal form of religion on the students, which 
is an Establishment Clause violation equally, there would be no 
remedy for those students, either. And one of those cases 
involved a one-time violation.
    Mr. Nadler. So do you think that forced prayer involves the 
violation of individual rights?
    Mr. Stern. Well, not according to Justice Thomas, who 
Professor Garry--whose views Professor Garry has endorsed. I 
think it does.
    Mr. Nadler. And----
    Mr. Stern. The Supreme Court thinks it does.
    Mr. Nadler. Okay.
    Mr. Staver, final question. Atheists and wiccans have asked 
that their symbols be placed on individual grave markers of 
their adherents in military cemeteries. Do you support their 
right to have their symbols on their tombstones in military 
cemeteries?
    Mr. Staver. Certainly, anyone has a right if they wanted to 
have their own particular choice of whatever religious symbol 
on their----
    Mr. Nadler. Including wiccans?
    Mr. Staver. Including wiccans. But I would also like to say 
that in response to this violating a court injunction, it is 
not true that you would not have some attorney's fees because 
the fact is----
    Mr. Nadler. Under this bill?
    Mr. Staver. Under this bill because you can get a damage 
award or an attorney's fee award for violating a court 
injunction irrespective of whether there is a fee shifting of 
damaging shifting statute. So in this hypothetical you gave, 
that would be a violation of a court ordered injunction. And 
that would be punishable by attorney's----
    Mr. Nadler. Mr. Stern, would you come in on that, please?
    Mr. Chabot. The gentleman's time is expired.
    But you can comment, if you would like to.
    Mr. Stern. I don't know on what authority and what statute 
a court would rely on to award damages other than the 
underlying constitutional violation.
    Mr. Nadler. I am confused. So----
    Mr. Stern. In any event----
    Mr. Nadler. Mr. Staver is saying that despite this bill, if 
someone violated--if some Government authority violated an 
injunction, you could still get attorney's fees?
    Mr. Staver. You could get attorney's fees.
    Mr. Nadler. Okay.
    And, Mr. Stern, you are saying----
    Mr. Stern. I think that is not the case. I am prepared to 
submit a legal memorandum. I may be wrong, but I believe that 
that is the case.
    Mr. Nadler. Thank you.
    Mr. Stern. And the bill certainly leaves that unclear.
    Mr. Nadler. Thank you.
    Mr. Chabot. Would we have to pay attorney's fees for that 
legal memorandum?
    Mr. Stern. At a very enhanced rate, Your Honor.
    Mr. Chabot. Okay, thank you.
    The gentleman from Indiana, the chief sponsor of the 
proposed legislation, is recognized for the purpose of asking 
questions for 5 minutes.
    Mr. Hostettler. Mr. Stern, are you familiar with the fact 
that the bill allows for injunctive relief?
    Mr. Stern. Yes, but--excuse me. But----
    Mr. Hostettler. That is my question.
    Mr. Stern. Yes, but----
    Mr. Hostettler.--and we will have a chance for another. So 
the answer is yes.
    Professor Garry, if an injunction is granted and an 
individual violates the injunction, is there grounds for a 
contempt citation?
    Mr. Garry. Yes.
    Mr. Hostettler. Is the contempt citation, if violated, 
grounds for fines?
    Mr. Garry. As far as I know, yes.
    Mr. Hostettler. Irrespective of the language of this 
legislation?
    Mr. Garry. Yes.
    Mr. Hostettler. Mr. Stern, when you voluntarily offered in 
your testimony that there would be no penalty whatsoever of an 
individual that would violate the Establishment Clause and, 
therefore, defy an injunction, did you know that a contempt 
citation----
    Mr. Stern. A fine doesn't remedy the plaintiff's harm. It 
goes to the Government.
    Mr. Hostettler. No, that wasn't the question. The question 
was----
    Mr. Stern. It is not what the testimony is talking about. 
The testimony is talking about the harm to the plaintiff.
    Mr. Hostettler. In your----
    Mr. Stern. The plaintiff is not remedied by a fine that 
goes to the U.S. Treasury.
    Mr. Hostettler. That is not, that is not your statement. 
Your statement was there was no penalty of the, of the----
    Mr. Stern. There is no penalty to the plaintiff. If I need 
to amend the testimony, I will, but that is what I meant.
    Mr. Hostettler. And that is true. But that was not the--
that was not what you said. You said there was no reason for 
the defendant to not--to not----
    Mr. Stern. Look at the San Diego case.
    Mr. Hostettler.--injunction.
    Mr. Stern. Fifteen years we are litigating an order that is 
final.
    Mr. Hostettler. I have another----
    Mr. Stern. And public officials defy it because it is in 
their political interest to defy it.
    Mr. Hostettler. I have another question for you, Mr. Stern. 
You talk in your testimony about having a client who was a 
football player who objected to school-sponsored prayer in the 
case Berlin v. Okaloosa County. What was the decision in that 
case?
    Mr. Stern. We lost the temporary preliminary injunction 
because the school board threatened to riot at the football 
game. After the school superintendent's election was safely out 
of the way, the school board settled. That case was later 
controlled by--it was later controlled by Doe and----
    Mr. Hostettler. But according to your testimony, the reason 
why they settled--here the availability of attorney's fees put 
an end to a calculated defiance of the Constitution for cheap 
political advantage. The facts of the case--in Okaloosa County, 
was it mandatory for attendance at a football game?
    Mr. Stern. If you are the punter on the team, yes.
    Mr. Hostettler. My son was a place kicker on a team. And he 
never had to go to a football game. It was never required.
    Mr. Stern. If he wanted to be a place kicker on the team, 
he had to be where the team was.
    Mr. Hostettler. Was it mandatory--was it mandatory for 
participation in high school athletics?
    Mr. Stern. Congressman, if you want to re-argue Santa Fe 
School District, I am perfectly prepared to re-argue it.
    Mr. Hostettler. No.
    Mr. Stern. The Supreme Court rejected that argument. And 
Lee v. Weisman is the same thing. It was not mandatory to 
attend graduation. That is Justice Scalia's submission. As I 
count, he didn't get five votes.
    Mr. Hostettler. Thank you.
    Mr. Stern. If you don't get five votes on the Supreme 
Court, you lose.
    Mr. Hostettler. Right. Thank you for the filibuster.
    But given the fact that neither attendance at the football 
game was mandatory, nor participation in varsity athletics in 
Okaloosa County was mandatory, is it possible, Professor Garry, 
is it possible that a later Supreme Court may find that because 
of no mandatory attendance, no mandatory participation, that, 
in fact, no coercion on the part of the school district or the 
Government took place in the school sponsored prayer at the 
football game?
    I am not asking you if it is constitutional law today 
because 25 years ago it was unconstitutional, according to 
Stone v. Graham, to have the Ten Commandments in a public 
place. But in 2005, that changed. My question is, is it 
possible, given what I have just asked you, that some future 
Supreme Court may say that this is not a violation of the 
Establishment Clause?
    Mr. Garry. Well, Representative, I think it is more than 
possible. Of course I think it is possible. And I outline the 
arguments in a recent book I published on the Establishment 
Clause.
    Mr. Hostettler. Well, thank you.
    So we have a situation whereby the case was not decided. 
The case was determined as the result of the coercion on the 
part of the plaintiffs to get the school district to say we 
will take you to court, you will pay our attorney's fees. And 
so, the case never went to court. And, in fact, as is the 
testimony, an interim injunction was actually denied by the 
court.
    So it is possible, possible that the case may have been 
lost, not probable, not likely, but possible that the case 
would have been lost on the part of the plaintiff and this 
school sponsored prayer could have continued.
    Mr. Chairman, this is why we need PERA because of the sword 
of Damocles that hangs over everyone's head given the muck of 
Establishment Clause jurisprudence as it is today. I yield back 
the balance of my time.
    Mr. Chabot. The gentleman's time is expired.
    The gentleman from Virginia, Mr. Scott, is recognized for 5 
minutes.
    Mr. Scott. Thank you.
    Mr. Stern, can you bring a 1983 action against the Federal 
Government?
    Mr. Stern. No.
    Mr. Scott. No?
    Mr. Stern. No.
    Mr. Scott. Okay.
    If you have a 1983 action, Mr. Lloyd--you talked about 
attorney's fees against the American Legion. The American 
Legion isn't the defendant in this case. Is that right? So you 
wouldn't have to pay attorney's fees?
    Mr. Lloyd. I raised the point, Representative, that if we 
attempt to intervene as parties and fully participate in the 
adjudication then we risk the fee shifting of the ACLU's 
attorney fees to us. That has a chilling effect on us and 
everybody else who would get in and attempt to fight for these. 
And if I may, the point about the imposition of attorney fees 
under 1983 and Federal defendants, we believe in the American 
Legion that the Equal Access to Justice Act must be reformed in 
the same way as 42 U.S.C. 1988. And it should be.
    In the Mojave Desert Veterans Memorial case, the ACLU 
pleaded for fees under both. They said give us fees under the 
Civil Rights Act of 1976. And then they said or give us fees 
under the EAJA. They ended up getting $63,000 under the EAJA. 
We think they both should be reformed.
    Mr. Scott. Mr. Staver, if there were no attorney's fees, 
would the law in this area be any clearer?
    Mr. Staver. I don't think it would be any clearer, 
Congressman. I think we have to have the Supreme Court make it 
clearer and then the lower Federal court judges have some 
principles and rules to follow. And right now they don't have 
any consistent area of law. It is not going to make it clearer.
    Mr. Scott. Okay.
    Mr. Staver. The problem, however, is----
    Mr. Scott. It would still be the same confusing law that it 
is. You mentioned standing, too. If people who are offended by 
the State action, who could?
    Mr. Staver. Well, this would not affect standing. What has 
happened--and in the normal standing rules, you have to have 
three criteria you meet. And primarily you have to have a 
direct and concrete injury, not imaginatory or conjecture. But 
in the Establishment Clause, there has been a huge area that is 
carved out that has opened up the floodgates so essentially 
anybody who drives by that sees something that they are 
offended to can bring a suit and walk into court.
    Mr. Scott. Well, who else--who else would there be to bring 
the case?
    Mr. Staver. Well, I think as Judge Easterbrook said in the 
7th Circuit case involving the Ten Commandments, the issue of 
whether words alone that make an offense to you give you a 
cause of action to come to court should be reconsidered.
    Mr. Scott. Who else could bring the case other than 
someone--other than someone who is offended, who else could 
bring the case?
    Mr. Staver. Well, someone who is actually injured by the 
activity. For example, it is one thing if you are forced to 
participate in a religious activity. It is another thing if you 
are driving by on a highway and you see a cross on a city seal 
as a police car drives by at 40 miles per hour and all of a 
sudden you are offended.
    Mr. Scott. Who else could--who could bring the case?
    Mr. Staver. Somebody who has either a penalty or force or 
some kind of coercion in participating in a religious activity 
or exercise.
    Mr. Stern. It is not true, in any event, that anybody who 
drives by--the courts have uniformly insisted that you change 
your behavior in some way. You don't go into the courthouse. 
You walk around to some other entrance and the like. It is 
simply a misstatement of current standing law to say that 
anybody who drives by can bring a case.
    Mr. Staver. But all that means is that instead of going 
down First Street, you divert and go down Second Street. You 
change literally nothing in your behavior.
    Mr. Scott. Well, I would be, I would be hard pressed to 
find somebody--if the local city put up a religious symbol in 
the courthouse, that would be hard for us to find somebody who 
has an economic loss as a result. So if, so if the people who 
are offended by that can't sue, there wouldn't be a plaintiff.
    Mr. Staver. Well, the fact is this does not change any 
standing rules. The standing rules are a whole different issue 
that the courts need to deal with. What this does is because 
the floodgates have been opened because of the standing rules 
and because it is so confusing that people don't know what to 
do, the threat of attorney's fees and damages are 
inappropriate. In fact, what you have is a court awarding 
damages to one particular situation that is identical and to 
the opposite situation awarding damages because they don't know 
which side of this issue to come down on.
    Mr. Scott. What is a disincentive to a locality, Mr. Stern, 
from just violating the law intentionally?
    Mr. Stern. None.
    Mr. Chabot. Will the gentleman yield?
    Mr. Scott. Even in a--even in a case that is not even 
close.
    Mr. Stern. Take a case----
    Mr. Scott. And if the victim----
    Mr. Stern. Take the case in Michigan which is cited in my 
case. A school district sponsors a panel of liberal clergymen 
to explain why the Bible does not ban homosexuality. It was a 
diversity day. That is the day that this event occurs. It is a 
one-time event. It is a clear violation of the Establishment 
Clause. By the time you get to court and litigate this case, 
diversity day is long forgotten. There is a clear violation of 
the Establishment Clause.
    Under this bill the conservative Christians who brought 
suit would have no remedy. They can't get an injunction. It is 
moot. They can't get any attorney's fees because the bill says 
so. There is no declaratory judgment because the bill says so. 
There is no nominal damages because the bill says so. And there 
are no punitive damages because the bill says so. Nobody 
remedies.
    Mr. Scott. I just have a couple of seconds left, and I 
wanted to get this chart----
    Mr. Chabot. The gentleman doesn't have a couple seconds 
left. But the gentleman has an additional minute.
    Mr. Scott. Thank you, Mr. Chairman.
    Just since the Chairman pointed out what happened during 
court, who was in control, let me break the color code down. 
Red is Republican presidents. Purple is Democratic presidents.
    And you can use your own adjectives to describe what 
happened when the 10-year forecast starting in the beginning of 
2001 dropped $9 trillion after that red line fell off the 
chart. And that is--interest on the national debt is going up 
hundreds of billions of dollars from what had been projected 
just then. And that money could have gone to veterans and other 
needs or could have paid off the national debt.
    Mr. Chabot. Would the gentleman--would the gentleman 
explain how the PERA bill that Mr. Hostettler has proposed 
would affect that?
    Mr. Scott. Yes, because we have suggested all these 
attorney's fees are causing the lack of veterans' health care. 
And I suggest that part of the $9 trillion deterioration in the 
budget could have been used for veterans' health care rather 
than worrying about the few hundred thousand dollars. We are 
talking trillions, not billions, not millions, few hundred 
thousand dollars that naturally may have gone to some of these 
attorney's fees.
    We could have gotten a lot more done if we had not ruined 
the budget. And you can use whatever adjective you want to 
describe that----
    Mr. Chabot. The gentleman's time has expired.
    But the Chair would just note that we would be happy to 
provide reams and reams of documentation to show that under 
Republican administrations there have been significant 
improvements in veterans' health care and a whole range of 
other issues. But that is not the jurisdiction that this 
Committee has.
    Mr. Scott. Mr. Chairman, could I be recognized for 
unanimous consent?
    Mr. Chabot. Pardon me?
    Mr. Scott. Could I be recognized for unanimous consent?
    Mr. Chabot. Without objection.
    Mr. Scott. I have letters from the Leadership Conference on 
Civil Rights, Americans United, and a coalition of many civil 
rights organizations opposed to the legislation that I would 
like to enter into the record.
    Mr. Chabot. Without objection.
    [The letters referred to are located in the Appendix.]
    Mr. Scott. Thank you.
    Mr. Staver. Mr. Chairman, may I be recognized for just one 
moment to correct something?
    Mr. Chabot. Yes.
    Mr. Staver. Congressman Scott mentioned whether there would 
be any disincentive if this bill were passed. I would like to 
underscore that this is not a radical or unusual bill. In fact, 
this would make the State as it relates to Establishment Clause 
exactly how it has always been with regards to the Federal 
Government. And the Federal Government would have exactly the 
same disincentive not to violate a constitutional right.
    We haven't seen the Federal Government running away rampant 
because they don't have an attorney's fee or damage provision 
under Section 1983 or 1988. So I don't think this opens up the 
floodgates to the Government run amok because it simply puts 
the States back into the same thing we have always dealt with, 
the Federal Government.
    Mr. Stern. If Mr. Staver wants to see 1988 repealed 
entirely, that would be fine. The question before the Committee 
is why selectively repeal it. You don't have a 1988 for the 
Federal Government on free speech.
    Mr. Chabot. Okay. The Chair--the Chair--we are going to go 
back to regular order here.
    And the gentleman from Arizona, Mr. Franks, is recognized 
for 5 minutes.
    Mr. Franks. Well, thank you, Mr. Chairman.
    And thank you, gentlemen, for coming. And I want to be 
very, very brief here with my questions because I would like to 
yield to another gentleman here.
    So, Mr. Stern, earlier the question was brought up as to 
the crosses or Stars of David on military cemeteries. And I 
thought I heard you say, and I believe I did--and I just want 
you to clarify very transparently, very courageously your own 
opinion, not stating a fact, but your own opinion.
    If the family or the soldier that has died is the one that 
designates the cross or the Star of David or the wiccan, 
whatever it is, is it then appropriate or is it your opinion 
that that is constitutional----
    Mr. Stern. Completely.
    Mr. Franks.--for the Federal Government then to pay for 
that tombstone and for that cross or that Star of David or 
whatever the family designates? Is that your opinion, a yes or 
no, sir?
    Mr. Stern. Yes. And it would be inappropriate for the 
Government not to do so.
    Mr. Franks. Okay. I appreciate your--do you think that that 
is the ACLU's opinion?
    Mr. Stern. Yes.
    Mr. Franks. Okay. And you think that the Supreme Court--and 
that is constitutional?
    All right. That is what I wanted to know. And I appreciate 
it.
    Mr. Stern. They litigated such a case, and they made it 
clear----
    Mr. Franks. I appreciate the transparency.
    Mr. Lloyd, if I am understanding the gentleman's position, 
he says that it is appropriate as long as the family decides or 
the soldier what that religious symbol is, that it is 
appropriate for Government to pay for the creation of that 
symbol.
    Then how is it--and you understand where I am on--I am a 
co-sponsor of this bill. How is it then, when you incorporate 
someone that built a cross out here on private money--how is it 
then unconstitutional for that to be incorporated into some 
type of cemetery situation?
    Your opinion, sir?
    Mr. Lloyd. Well, I would not dream of being so presumptuous 
as to explore the thinking that has resulted at modern 
jurisprudence in this issue because it is so confusing. In my 
small mind I couldn't grasp it. Certainly, the people making 
the decisions can't.
    I don't believe it is unconstitutional to erect on private 
land a cross or a Star of David or any other religious symbol 
that later gets taken over or put into Federal or State or 
local public land and then declare it to be unconstitutional 
even though it was not unconstitutional when it was erected. 
And that is certainly the situation at Mount Soledad in 
California. It went up in 1913. There wasn't even an 
incorporation of the Establishment Clause against the States 
and localities until 1947. And somehow the sky didn't fall, and 
the republic survived.
    Mr. Franks. Thank you, Mr. Lloyd.
    And I just--Mr. Chairman, just a brief statement. You know, 
sometimes we are always seemingly surprised by all of a sudden 
what has happened in the last 30 or 40 years of certain things 
that we always thought were constitutional, crosses out here or 
Stars of David out here. We always thought those things were 
okay. And all of a sudden, we are shocked and we are amazed 
that the ACLU has found how unconstitutional they have always 
been.
    And so, it is always a shock to me. And I am wondering some 
day if we won't see the ACLU bring suits that say we have to 
stop listening to families' positions on that. I see no reason 
in the direction they are going why that won't happen.
    And with that, I would like to yield the balance of my time 
to Mr. Hostettler.
    Mr. Hostettler. I thank the gentleman for yielding.
    Mr. Chairman, I would like to continue to clear up this 
idea of a disincentive. The question was posed, as Mr. Staver 
said earlier from Representative Scott to Mr. Stern, is there a 
disincentive for violating the Establishment Clause. And Mr. 
Stern's response was no.
    Mr. Staver, in your experience, is the probability of an 
injunction to stop an activity or a move, a particular symbol, 
is that a disincentive for violating the Establishment Clause?
    Mr. Staver. Absolutely, it is. It is a disincentive for a 
number of reasons, not the least of which is the political 
ramifications that that creates where someone has literally 
violated a law. Now a court is telling them to stop violating a 
particular law. It is an absolute disincentive.
    Mr. Hostettler. And I am not an attorney, but, Mr. Staver, 
if you could answer this question, too. Mr. Stern likewise said 
there was no remedy under the legislation PERA. Is injunctive 
relief in legal terms a remedy?
    Mr. Staver. It is. And Mr. Stern also, I think, 
incorrectly, I believe, stated that you wouldn't even have 
declaratory relief. Well, injunctive relief is the primary 
relief that you would have in any of these kinds of cases where 
a court issued an order telling you to stop doing something or 
to start doing something. But in this case, it would be to stop 
a particular activity. That is the remedy that is primarily 
sought. That remedy will always be there.
    Mr. Hostettler. It is primarily sought because ostensibly 
the reason why the plaintiff is bringing the case--maybe not 
why the interest group is defending or is representing them, 
but the reason why the individual is bringing the case is to 
stop what they see as a violation of their constitutional 
rights. Is that not true?
    Mr. Staver. That is true.
    Mr. Hostettler. Thank you.
    I yield back the balance of my time.
    Mr. Chabot. The gentleman's time is expired.
    If the gentleman is available, the gentleman from Iowa?
    Mr. King. Excellent.
    Mr. Chabot. The gentleman from Iowa is recognized for 5 
minutes.
    Mr. King. Thank you, Mr. Chairman. This is the story of my 
life, just in under the wire.
    And I want to thank the witnesses for the testimony this 
morning and thank Mr. Hostettler for bringing this bill and Mr. 
Chairman for holding this hearing this morning.
    I am not so much with questions for the panel as I am just 
an opportunity to reflect somewhat on my overall viewpoint on 
this. And I think it is framed a great deal on the remark that 
was made by Mr. Hostettler when he said given the muck of 
Establishment Clause jurisprudence today.
    And, of course, I don't know if there has been testimony 
here and discussions about the text of the Constitution. But it 
has always been a source of despair to me to go to the Supreme 
Court of the United States, the very center of the place where 
one might go if they were seeking to hear profound 
constitutional arguments before the Supreme Court of the United 
States. I have gone there a number of times to listen to those 
profound constitutional arguments and those profound issues 
that so much shape this society and that are the core, I 
believe, of one of the foundations at least and the most 
important foundation of the greatness of America.
    And a couple of those arguments before the court would be 
the affirmative action cases that came in some couple of years 
ago and the Ten Commandments cases that were before the court. 
I don't remember the exact date on that, but I sat in on that.
    And as I listened to those profound constitutional 
arguments, I listened for them. But I have not heard one before 
ht Supreme Court. It takes a very nuanced ear to pick out a 
constitutional argument before the Supreme Court. And yet we 
are here arguing case law as if somehow it were decided upon 
the Constitution when yes, you can read the briefs and you can 
find constitutional arguments there.
    But the case law that is being argued before the court is 
targeted at the nuances of the psychological analysis of 
perhaps a swing justice. And to sit there for an hour on a case 
and listen to those nuanced arguments targeted at the 
idiosyncrasies perhaps, maybe even the legal idiosyncrasies of 
a swing justice and then conclude that somehow the Supreme 
Court has ruled upon the text of the Constitution is a source 
of great frustration to me.
    And, in fact, when I walk to the Supreme Court to hear the 
Ten Commandments cases, I walked in out of the bright sunlight 
and before my eyes adjusted to the darkness inside the Supreme 
Court building, I was met by a security guard. And I introduced 
myself, and I said, ``I am Congressman Steve King, and I am 
here to hear the Ten Commandments cases.'' And he said--and 
this is for the record--``My name is Moses, and I am here to 
lead you.''
    And he was a wonderful guard. Moses led me in, and he led 
me out. He led me past the oaken doors that have the Ten 
Commandments inscribed in them into the chamber of the Supreme 
Court where up on the frieze as if I were sitting in Justice 
Ginsburg's seat, I would make my expression to the Moses upon 
the frieze in this fashion up above on her left and on the left 
of all the justices. And she referenced the Moses with the Ten 
Commandments there and said that he is simply up there among, I 
believe she said, 25 other lawmakers or lawgivers.
    Now, the only figure I recognize up there is Moses. And the 
rest of them are pretty obscure from my understanding of Greek 
mythology or history. And it is--and so, then on the other side 
of the Supreme Court building, on the east side, on the 
pediment, there sits Moses also with the Ten Commandments on 
his knees as he sits down opened up for all to see. And he 
sends a message out for all to notice that here this is a 
nation that is based upon the rule of law and the foundation of 
that rule of law is God's law.
    You cannot escape that. And if architects--excuse me, 
archeologists should somehow or another--or if something 
happens like Pompeii to America and we were sealed off with a 
lava flow and in 10,000 years if they would dig up this city 
and chisel the lava off of our buildings, they would see 
expressions of religion engraved into the marble and into the 
stone and into the concrete as part of who we are, of the 
foundation of this nation.
    And so, that foundation is this Constitution. And the 
Constitution says Congress shall make no law respecting an 
establishment of religion or prohibiting the free exercise 
thereof.
    They will read this Constitution. And then I would 
challenge those archeologists to go back and read through this 
case law, not having any institutional memory of the 
Constitution, but just simply starting with the most recent 
case law and then begin to read and understand like 
hieroglyphics and divine what was the foundation for these 
decisions. And I don't care how smart they might be 10,000 or 
20,000 years from now. No one could discern the Constitution by 
reading backwards through the case law.
    And that is why we have this debate here today, because we 
have gotten so far away from the text and the original intent 
of the Constitution. It is unrecognizable in the case law 
today.
    And I thank you, Mr. Chairman. I yield back the balance of 
my time.
    Mr. Chabot. Thank the gentleman.
    I want to thank the witnesses and thank the panel here as 
well today. I thought this was a very enlightening discussion. 
The panel did an excellent job of letting us know various 
points of views which exist. So----
    Mr. Nadler. Mr. Chairman?
    Mr. Chabot. I think I already did that. But I will 
recognize the gentleman.
    Mr. Nadler. You may have done one of them. Let me make 
sure.
    Mr. Chabot. Go ahead.
    Mr. Nadler. Mr. Chairman, I ask unanimous consent that all 
Members have 5 legislative days to revise the extent of their 
remarks, include additional materials in the record.
    Mr. Chabot. Without objection, so ordered, even though I 
already did it.
    Mr. Nadler. And, Mr. Chairman, I don't think you did this 
one yet. I understand that an earlier draft of Mr. Stern's 
testimony has been included in the materials. I ask unanimous 
consent that he be permitted to substitute the final version of 
his testimony for the record.
    Mr. Chabot. Without objection, so ordered.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chabot. Okay.
    But I want to thank again the panel for their testimony 
here this afternoon.
    If there is no further business to come before the 
Committee, we are adjourned. Thank you.
    [Whereupon, at 11:32 a.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
in Congress from the State of Michigan, and Member, Subcommittee on the 
                              Constitution





   Additional Information submitted by Mathew D. Staver, Founder and 
 Chairman, Liberty Counsel, Interim Dean, Liberty University School of 
                                  Law


  Additional Information submitted by Marc D. Stern, General Counsel, 
                        American Jewish Congress


 Prepared Statement of the Alliance Defense Fund concerning H.R. 2679, 
           the ``Public Expression of Religion Act of 2005''





























         Prepared Statement of Steven W. Fitschen, President, 
                     The National Legal Foundation























































  Letter from Ruth Flower, Legislative Director, Friends Committee on 
  National Legislation, to The Honorable Steve Chabot, dated June 19, 
                                  2006


   Letter from Wade Henderson, Executive Director, and Nancy Zirkin, 
 Deputy Director, Leadership Conference on Civil Rights, to Members of 
              the Judiciary Committee, dated June 21, 2006


      Letter from Caroline Fredrickson, Director, American Civil 
                  Liberties Union dated June 22, 2006






Letter from the American Civil Liberties Union, et. al., dated June 22, 
                                  2006




 Letter from the Reverend Barry W. Lynn, Executive Director, Americans 
   United for Separation of Church and State, to Chairman Chabot and 
               Ranking Member Nadler, dated June 22, 2006