[Senate Hearing 109-756]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-756
 
PAYING YOUR OWN WAY: CREATING A FAIR STANDARD FOR ATTORNEY'S FEE AWARDS 
                     IN ESTABLISHMENT CLAUSE CASES

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

                                HEARING

                               before the

                   SUBCOMMITTEE ON THE CONSTITUTION,
                    CIVIL RIGHTS AND PROPERTY RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             AUGUST 2, 2006

                               __________

                          Serial No. J-109-104

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

   Subcommittee on the Constitution, Civil Rights and Property Rights

                    SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania          RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas                   DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                    Ajit Pai, Majority Chief Counsel
               Robert F. Schiff, Democratic Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....     1
    prepared statement...........................................    60
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     3

                               WITNESSES

Lloyd, Rees, Commander, District 21, Department of California, 
  American Legion, Banning, California...........................     5
Rogers, Melissa, Visiting Professor of Religion and Public 
  Policy, Wake Forest University Divinity School, Winston-Salem, 
  North Carolina.................................................    12
Staver, Mathew D., Found and Chairman, Liberty Counsel and 
  Interim Dean, Liberty University School of Law, Lynchburg, 
  Virginia.......................................................    10
Stern, Marc D., General Counsel, American Jewish Congress, New 
  York, New York.................................................     7
Woodruff, Shannon D., Senior Counsel, American Center for Law and 
  Justice, Washington, D.C.......................................    15

                         QUESTIONS AND ANSWERS

Responses of Mathew Staver to questions submitted by Senator 
  Feingold.......................................................    31
Responses of Melissa Rogers to questions submitted by Senator 
  Feingold.......................................................    38
Responses of Shannon Woodruff to questions submitted by Senator 
  Feingold.......................................................    40

                       SUBMISSIONS FOR THE RECORD

Alliance Defense Fund, Gary McCaleb, Esq., Senior Legal Counsel, 
  Scottsdale, Arizona, statement.................................    44
American Civil Rights Union, Susan A. Carleson, Chairman and 
  Chief Executive Officer, Arlington, Virginia, letter...........    57
American Legion, Steve Robertson, Director, National Legislative 
  Commission, Washington, D.C., letter...........................    58
Baptist Joint Committee for Religious Liberty, K. Hollyn Hollman, 
  General Counsel, Washington, D.C., letter......................    59
Destro, Robert A., Professor of Law, and Lincoln C. Oliphant, 
  Research Fellow, Catholic University of America, Columbus 
  School of Law, Interdisciplinary Program in Law & Religion, 
  Marriage Law Project, Washington, D.C., statement..............    61
Family Research Council, Tom McClusky, Vice President of 
  Government Relations, Washington, D.C., letter.................    66
Fitschen, Steven W., President, National Legal Foundation, 
  Virginia Beach, Virginia, statement and letter.................    67
Lloyd, Rees, Commander, District 21, Department of California, 
  American Legion, Banning, California, statement................    94
McElroy, James E., Attorney-at-Law, San Diego, California, letter   106
Religious Freedom Coalition, William J. Murray, Chairman, 
  Washington, D.C., letter.......................................   109
Rogers, Melissa, Visiting Professor of Religion and Public 
  Policy, Wake Forest University Divinity School, Winston-Salem, 
  North Carolina, statement......................................   111
Staver, Mathew D., Founder and Chairman, Liberty Counsel and 
  Interim Dean, Liberty University School of Law, Lynchburg, 
  Virginia, statement and attachment.............................   135
Stern, Marc D., General Counsel, American Jewish Congress, New 
  York, New York, statement and attachments......................   174
Traditional Values Coalition, Rev. Louis P. Sheldon, Chairman, 
  and Andrea S. Lafferty, Executive Director, Washington, D.C., 
  letter.........................................................   200
Woodruff, Shannon D., Senior Counsel, American Center for Law and 
  Justice, Washington, D.C., statement...........................   202


PAYING YOUR OWN WAY: CREATING A FAIR STANDARD FOR ATTORNEY'S FEE AWARDS 
                     IN ESTABLISHMENT CLAUSE CASES

                              ----------                              


                       WEDNESDAY, AUGUST 2, 2006

                              United States Senate,
Subcommittee on the Constitution, Civil Rights and Property 
                        Rights, Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 2:34 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Sam 
Brownback, Chairman of the Subcommittee, presiding.
    Present: Senators Brownback and Feingold.

 OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM 
                      THE STATE OF KANSAS

    Chairman Brownback. I will call the hearing to order. Thank 
you for joining us today. My colleague, Senator Feingold, will 
be here shortly. We are going to go ahead and start the 
hearing.
    I want to thank all the witnesses for coming today and for 
appearing in front of the Subcommittee. I look forward to 
hearing your testimony.
    Since the founding of the American legal systems, courts 
have required that all parties to a lawsuit pay their own 
attorney's fees. This standard is known as the ``American 
rule,'' and that was an explicit break from the ``loser pays'' 
systems employed by English courts. I was a practicing lawyer 
myself. That was the rule in the system that I played under. 
The American rule applies in all circumstances except where 
Congress has expressly created an exception, and today we are 
going to discuss one of those exceptions.
    Under 42 U.S.C. 1983, individuals can sue State and local 
governments for alleged violations of their constitutional 
rights. And under 42 U.S.C. 1988, successful plaintiffs, 
technically known as ``prevailing parties,'' can petition a 
court to recover attorney's fees from the Government. Section 
1988, originally known as the ``Civil Rights Attorney's Fee 
Award Act,'' was adopted by Congress in 1976 to assist 
individuals in combating civil rights abuses by allowing them 
to recover their attorney's fees from the Government when the 
court found a constitutional violation had occurred. A similar 
exception was adopted in 1994 to allow fee shifting in suits 
against the Federal Government.
    Today, groups like the ACLU and others use these provisions 
to bring claims against the Government for alleged violations 
of the Establishment Clause. Here we are not talking about 
civil rights cases. We are talking about Establishment Clause 
cases. If they are successful, they may not only obtain an 
injunction to stop the offending practice, but they may also 
recover hundreds of thousands of dollars in fees. We have seen 
a number of examples of this in recent years.
    In 2003, the ACLU sued to prevent the city of San Diego 
from allowing the Boy Scouts to use a public park. The city 
settled the case, but not before agreeing to pay the ACLU 
$950,000 in attorney's fees.
    In 2002, ACLU and others sued the Chief Justice of the 
Alabama Supreme Court to have a monument of the Ten 
Commandments removed from the Alabama Supreme Court building. 
In addition to forcing the removal, they collected $550,000 in 
fees from the State of Alabama.
    In 2004, the ACLU collected $63,000 in fees after suing to 
remove a World War I memorial cross from the Mojave National 
Preserve in California.
    In 2005, the ACLU collected $150,000 in fees after 
litigating a case in which the court ordered a framed copy of 
the Ten Commandments removed from the Barrow County Courthouse 
in Georgia.
    In 2004, the ACLU threatened to sue the city of Redlands, 
California, alleging that its official seal, which contained a 
cross and a church, was an unconstitutional violation of the 
Establishment Clause. Rather than risk incurring costly 
damages, the city complied and removed the cross. When groups 
protested, ACLU attorney Ben Wizner stated, ``If the mayor and 
city council bend to public pressure and restore the sectarian 
religious symbol to the city seal, the people of Redlands will 
get a very expensive civic lesson from the Federal courts.''
    Based on their success in Redlands, the ACLU then 
threatened to sue Los Angeles County because the county's 
official seal contained a tiny cross. The Board of Supervisors 
voted to remove the cross to avoid expensive litigation.
    We actually have a chart of these to show what the original 
seal looked like and what the new version looked like, and you 
can see, as they get those held up there--the one on the left, 
my left, is the original version, on the right is the new one--
the size of the offending cross. Thank you very much for 
holding that up.
    With the threat of such large awards looming over their 
heads, many jurisdictions simply acquiesce to the demands of 
the ACLU and prohibit all displays of religious faith in order 
to avoid the potential expensive litigation. The legal fees is 
the threat that the ACLU uses. The aims of these outside groups 
have no basis in the text and purpose of Section 1988. 
Congress' intent in passing the fee- shifting statute in 1976 
was to prevent racial injustice and discrimination. Thirty 
years later, these laws are being used simply to purge 
religious faith and symbols of any faith from our society at 
taxpayer expense.
    I recently introduced a bill which would require parties in 
Establishment Clause cases to pay their own attorney's fees. 
This bill has an identical bill offered in the House, commonly 
known as ``The Public Expressions of Religion Protection Act of 
2006.'' It would amend 42 U.S.C. 1983 and 1988 to limit 
recovery in Establishment Clause cases only to injunctive and 
declaratory relief and to preserve the long-established 
principle that each side should pay its own way into the 
courtroom.
    And I would note at this point in time just what the 
Establishment Clause says. It says, ``Congress shall make no 
law respecting an establishment of religion or prohibit the 
free expression thereof.'' The bill has several cosponsors, has 
strong support from a number of outside groups, including the 
American Legion. I have support from these groups, and I will 
enter them into the record.
    I look forward to the discussion on this important issue 
from this panel. It is an interesting legal issue. It is one 
that has a great deal of bearing on a lot of our litigation 
that takes place in public venues today regarding expression of 
faith and symbols of faith. So I look forward to the testimony 
in this hearing and to other hearings that we will have in 
further delving into this particular issue.
    I will now turn to my colleague, Senator Feingold, for his 
opening statement.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. I, of course, 
want to join you in welcoming our witnesses, and I thank you 
and your staff for working with us to have this hearing on the 
remedies available in cases involving challenges to Government 
action under the Establishment Clause of the First Amendment to 
the Constitution.
    Mr. Chairman, the desire for freedom of religious 
expression was a very important motivation for both the 
establishment of the American colonies and the founding of this 
country. The Constitution contains two important guarantees of 
religious freedom in the First Amendment: Americans have the 
right to freely exercise their religion, and Americans of any 
faith or no faith at all have the right to be free from 
Government establishment of religion in their lives.
    The Establishment Clause and the Free Exercise Clause have 
created some tension and uncertainty throughout our history, 
but together they have allowed a freedom of religion and 
religion itself to thrive in this country for over 200 years. 
So, Mr. Chairman, when I see proposed legislation that could 
stifle claims challenging violations of religious freedom, I am 
wary. I certainly have reservations about the bill you 
introduced last month, S. 3696, which would prohibit Federal 
courts from awarding damages and reasonable attorney's fees and 
costs to parties who prevail in Establishment Clause cases.
    For that reason, I find the title of today's hearing, 
``Paying Your Own Way: Creating a Fair Standard for Attorney's 
Fees Awards in Establishment Clause Cases,'' to be a bit 
misleading. It is hard to see what is fair about a standard 
that singles out one of the Constitution's twin guarantees of 
religious freedom to be less worthy of protection than the 
other or than any other constitutional right.
    Congress made the judgment right after the Civil War that 
citizens should be able to defend their constitutional rights 
by bringing actions against State and local governments. And 30 
years ago, Congress recognized that being able to obtain 
reasonable attorney's fees was a crucial component of the right 
to obtain redress when the Government violates constitutional 
guarantees. By barring the award of attorney's fees to 
prevailing parties in certain cases, this legislation will, in 
fact, discourage people from asserting their rights. And I note 
that this has nothing to do with deterring frivolous claims 
since, under Rule 11, sanctions already exist for that purpose. 
Instead, the bill seems intended to deter even valid claims. 
Remember also that fees under the Equal Access to Justice Act 
are available only in cases where the Government's position was 
not substantially justified. This bill would deny fees even in 
the narrow category of cases where fees are permitted under 
that statute.
    The only reason I can see for this approach is hostility to 
decisions that the courts have reached in some religious 
freedom cases. I understand that some people are upset with how 
the courts have enforced the Establishment Clause, but we have 
a system of law in this country that has stood the test of 
time. The courts are the final arbiter of the meaning of the 
Constitution, and their decisions can be overturned only by 
appeal or ultimately by amending the Constitution.
    In my view, depriving people of the lawyers they need to 
assert their rights by trying to deprive the courts of 
jurisdiction over certain constitutional claims is the wrong 
way to go about trying to change the law. And it sets a 
dangerous precedent as well.
    What will be the next constitutional right to be relegated 
to second-class status?
    Mr. Chairman, I was struck by something that Peter Keisler, 
the President's latest nominee to the D.C. Circuit, said in his 
opening remarks at yesterday's nomination hearing in the full 
Committee. He was talking about the great honor it is to be a 
judge in our legal system. He said that in our system, 
``Anybody can file a case, make an argument, and be heard by a 
decisionmaker.'' And he noted with pride that in this country, 
``People are entitled to their day in court.''
    I agree with those sentiments. But I would note that they 
are given meaning by laws like 14 U.S.C. Section 1988 and the 
Equal Access to Justice Act, which help assure that people with 
valid constitutional claims will get their day in court even if 
they can't afford a lawyer.
    Again, Mr. Chairman, I believe that both of the religion 
clauses of the First Amendment are critical in protecting 
religious freedom and allowing Americans to practice, express, 
and thrive in whatever religion they choose. Unfortunately, S. 
3696, like the bill in the House, would put a finger on the 
scales of justice, and I cannot support that.
    But, Mr. Chairman, I thank you and I look forward to 
hearing from our witnesses.
    Chairman Brownback. Thank you very much.
    We have got an excellent panel. Our first witness is Rees 
Lloyd. He is a Vietnam veteran, a former ACLU attorney, and he 
current serves as Commander of District 21 of the American 
Legion, Department of California.
    The next witness is Mr. Marc Stern, Assistant Executive 
Director and General Counsel for the American Jewish Congress.
    The third witness will be Mr. Mathew Staver, Founder and 
Chairman of Liberty Counsel and Interim Dean and Professor of 
Law at Liberty University.
    Next we will hear from Melissa Rogers, who is a Visiting 
Professor of Law and Public Policy at Wake Forest University 
Divinity School, previously served as Executive Director of the 
Pew Forum on Religion and Public Life in Washington, D.C.
    And our final witness is Shannon Woodruff, Senior Research 
Counsel for the American Center for Law and Justice here in 
Washington.
    I will run the time clock--let's run it at 6 minutes-- to 
give you an outline of where you are. You can go over that if 
you need to. All of your written statements will be placed into 
the record as if presented. I don't know how Senator Feingold 
is. I prefer a summary and then to be able to engage in 
questions and answers. But do as you see fit and as you would 
like to. But I think this is the first time this Committee has 
heard this issue. I believe there has been a hearing in the 
House. We do want to establish a record, but we really want to 
try to get thoughts and input from people on a topic that may 
have multiple hearings to come in the future. So all your 
written statements will be placed in the record as if 
presented. We will do that already.
    Mr. Lloyd, delighted to have you here. The floor is yours.

STATEMENT OF REES LLOYD, COMMANDER, DISTRICT 21, DEPARTMENT OF 
      CALIFORNIA, THE AMERICAN LEGION, BANNING, CALIFORNIA

    Mr. Lloyd. Thank you very much, Mr. Chairman. I am very 
thankful for the opportunity that has been extended to the 
American Legion to present its views on this issue, and I am 
honored to be able to represent the largest wartime veterans 
organization in the world, with 2.7 million members in our 
family in the American Legion of Legionnaires, Auxiliary, and 
the Sons of the American Legion involving some 4 million 
members.
    I was very interested in the opening statements that were 
made from both of the Senators, and I will try to address some 
of the things that were raised. I was particularly interested 
in the notion that the filing of lawsuits under the 
Establishment Clause would be stifled if attorneys were not 
able to collect fees therefrom. I would think that if an 
examination of the cases under the Establishment Clause in the 
last 20 years would indicate anybody with an Establishment 
Clause in this country who goes without a lawyer, it would be 
astounding to me because the ACLU would be rushing there, as 
they have in every case. I do not believe there would be any 
stifling whatsoever. But I do think that it ought to be 
appreciated that there is a chilling effect on the First 
Amendment rights of those who are opposed to the view of the 
ACLU and others epitomized by the ACLU, and that chilling 
effect comes about because these attorney fees are not at all 
awarded on the basis of prevailing party. The ACLU wins, they 
collect. They lose, they don't pay.
    The reason for that is that filing of a lawsuit under the 
Establishment Clause is itself a First Amendment right, and in 
order for a plaintiff to have to pay fees is a very, very high 
standard, almost legally frivolous. So this is not in any way a 
level playing field in terms of prevailing party receiving 
attorney fees.
    The other dimension is, I think, exemplified best or 
illuminated by what happened in the Senate yesterday, and that 
was a unanimous vote to approve the Mount Soledad Protection 
Act. Mount Soledad right now is a case of national attention 
involving the Veterans' Memorial in San Diego, California, 
which has existed for half a century. A lawsuit was brought by 
an atheist, backed by an attorney who was backed by the ACLU. 
Litigation has gone on for some 17 years. A judge in May 
ordered the cross destroyed, or he would fine the taxpayers 
$5,000 a day. As a result of that, there is a lot of litigation 
involved, including the Supreme Court's stay order and this 
action yesterday.
    We in the American Legion are amicus curiae in that case. 
We would like to be able to more fully participate. But I 
cannot advise my clients to do so because they then run the 
risk of paying the ACLU's attorney, usually at the tune of $350 
an hour.
    I would like the Senators to appreciate that in the initial 
litigation in Mount Soledad, the plaintiffs included the 
president of the San Diegans for Mount Soledad, Mr. Phil 
Thalheimer, the son of Holocaust victims. It included a war 
hero, Dr. John Steele, Navy pilot and later medical officer. It 
included George and Craig Dewhurst, who were the sons of the 
person who built the monument.
    When the lawsuits were filed with them, the attorney 
representing the plaintiff sent letters to them threatening 
them, ``If you remain in this lawsuit, we will seek attorney 
fees against you individually to the tune of $300,000.'' All 
three of them had to withdraw.
    In your opening statement, Mr. Chairman, you indicated some 
of the cases in California, one of which is the L.A. Seal case. 
The boards that you demonstrated show a tiny seal, and, in 
fact, that is an exact representation of the Hollywood Bowl. 
And if you go to the Hollywood Bowl and look out, you are going 
to see that cross because it stands on private land on a 
mountain. It is an exact replication, but history has to be 
changed now because that is offensive to the ACLU, although 
that cross is part of our environment in Los Angeles on private 
land.
    In addition, you will notice the substitution that has been 
made. That is the San Gabriel Mission. On that mission, there 
is a cross on the top. If you hold up the board again, you are 
not going to see that cross because it has been whitewashed 
out. It is no longer there. That is a church. The ACLU is 
offended by the tiny cross, but not by the mission, San 
Gabriel. But what they did was to air-brush out the cross on 
the top of the mission apparently so those who are not from 
California won't realize what it is. That is the kind of hocus-
pocus that is going on to accommodate views that are absolutely 
in the extreme and have made the ACLU the Taliban of American 
liberal secularism.
    I do not speak as a person who has an inveterate hatred of 
the ACLU. I was an ACLU staff attorney in Southern California. 
I am proud of my service there. I have been a civil rights 
attorney my entire professional life. I was an attorney for 
Cesar Chavez and the Farm Workers Union for 20 years. I know a 
little bit about civil rights, and I know I never took a case 
because I had to be bribed into taking it by an attorney fee 
provision. We took those cases because we believed in them and 
we did it on principle. And this Act is absolutely vital and 
necessary to stop the assaults on our veterans' memorials, 
other institutions of our country, symbols of our American 
heritage that are being wiped out because they are offensive to 
some small group of people, even though they are actual symbols 
of our American history and heritage.
    We are vitally concerned about preservation of our 
veterans' memorials all across this country in the American 
Legion, and they are under attack. Suits are being filed all 
across the country. Taxpayers are unaware of the millions of 
dollars that are being expended in attorney fees in profits, 
and it is being used as a bludgeon on local elected bodies who 
cannot even consider our complaints because their minds are 
made up in advance because they cannot risk attorney fees being 
imposed.
    And, finally, there is nothing in the law today to stop the 
precedents being set in the Mojave Desert Veterans' Memorial 
case and the Mount Soledad case from being used by Islamist 
terrorists or sympathizers in our midst to sue our American 
institutions, our veterans' memorials, and then seek and 
receive attorney fees. And I would ask you to appreciate that. 
I know some people took that lightly when I raised it before. I 
suggest they take a look at all the litigation out of 
Guantanamo and the litigation to release the photographs from 
Iraq, all of which were brought by sympathizers.
    I thank you, Mr. Chairman.
    [The prepared statement of Mr. Lloyd appears as a 
submission for the record.]
    Chairman Brownback. Thank you, Mr. Lloyd. I appreciate your 
testimony and look forward to question-and-answer session.
    Mr. Stern, thank you for joining us today.

 STATEMENT OF MARC D. STERN, GENERAL COUNSEL, AMERICAN JEWISH 
                  CONGRESS, NEW YORK, NEW YORK

    Mr. Stern. Thank you, Mr. Chairman.
    I don't take Mr. Rees Lloyd's charge lightly that we took 
his remarks lightly about terrorism. I don't take that lightly 
at all. It is a form of modern-day McCarthyism that charges 
that anybody who brings a lawsuit that the American Legion 
doesn't like is a fellow traveler of al Qaeda and other 
terrorists, as if those groups routinely resort to our courts 
to achieve their aims. I would think that we can have a hearing 
without that sort of name-calling.
    The bill before us differs in two important respects from 
the House bill. They ought to be noted. One is a marked 
improvement; that is, the House bill even prohibited 
declaratory judgments. The Senate bill would allow declaratory 
judgments to be sought and awarded. That is clearly an advance 
over the House bill. However, and perhaps inadvertently, the 
Senate bill, in referring to the ban on attorney fees 
``notwithstanding any other provision of law,'' would seem to 
prohibit the award of attorney's fees even where a defense is 
frivolous within the meaning of F.R.Civ.P. Rule 11 or in cases 
where there was a contemptuous defiance of a court order, as 
there was in the case of Judge Roy Moore. It is well settled 
that district courts have the authority to award attorney's 
fees to parties who were forced to bring enforcement actions in 
contempt proceedings. The ban on fees in cases may be 
inadvertent, but the bill appears to forbid the award of 
attorney's fees or damages even when those occur in a contempt 
situation. So those are differences with the House bill. Again, 
I don't know if they are intentional or not, but there they 
are.
    The central question before the Committee is whether there 
is a reason to distinguish Establishment Clause cases, as 
Senator Feingold said, from the entire universe of 
constitutional and civil liberties claims. There are difficult 
constitutional issues across the Constitution. Those of us who 
suffered through law school remember the difficulty in 
determining--this was a long time ago when the law was a lot of 
simpler--between a regulatory taking that was permissible and 
one that gives rise to a cause of damage. Constitutional 
lawyers have been fighting about what that means since 
Pennsylvania Coal up to, I think, the last Supreme Court term 
or the term before.
    The public forum doctrine is completely chaotic. The Fourth 
Amendment, as the police regularly complain, is incoherent. As 
for law professors--open any law review and you will find some 
law professor complaining about some line of constitutional 
cases not making any sense. There is nothing particularly 
unique about the Establishment Clause being difficult.
    If the Committee wants to create a good-faith exception 
where local governing body could not figure out what the 
constitutional answer is, because nobody can figure out the 
answer, then that exception should apply not only to 
Establishment Clause claims but to all constitutional cases. 
Whether that is a good idea or not is a separate question. The 
question that needs to be asked today is: Why is the 
Establishment Clause different?
    I have not heard or read anything, both in the House 
hearing and the testimony here and the statements of the 
members of the Committee today, which explains that 
distinction, other than perhaps a hostility to the way the 
courts are deciding Establishment Clause cases.
    The bill before this Committee attacks two problems: 
remedies, particularly monetary damages, nominal damages, 
actual damages, and the like; and attorney's fees. Most of what 
we have heard today, most of what we heard in the House of 
Representatives Committee hearing, was about the problem of 
attorney's fees. We have not heard much which would justify the 
denial of actual damages in Establishment Clause cases.
    There are two problems with the provisions relating to 
damages. One is there are actually Establishment Clause cases 
where there are real damages. For instance, there is a lawsuit 
now pending in the District of Columbia brought by non-
liturgical church chaplains claiming that plaintiffs are at a 
disadvantage in the Navy promotion process--I believe it is the 
Navy--because there is a favoritism in favor of so-called 
liturgical churches.
    Plaintiffs are seeking promotions and back pay. Those are 
real, hard, tangible, traditional damages. They would be barred 
by this bill.
    There are cases--Municipal Rescue Mission, that case, which 
started in the 1930s, is still going on. There you have 
regulation of disfavored religious charities, and a pass for 
favored religious charities. Disfavored charities have sought 
damages for additional costs and for lost solicitations. Those 
are traditional damages. They would be barred by this bill.
    Moreover, I have in my hands, which I would like to make 
part of the record, the final judgment in Hansen v. Ann Arbor 
Public Schools, a case in which on a Diversity Day, liberal 
ministers were invited to explain why the Bible does not ban 
homosexuality. When students asked to have a conservative 
pastor brought in to participate in that panel, he was barred.
    The District Court, quite properly, found a violation of 
the Establishment Clause. The judgment is in favor of 
plaintiffs, against defendants, in the amount of $35 nominal 
damages and $87,000 in attorney's fees. That is not an ACLU 
lawsuit. It is a conservative lawsuit, a conservative legal 
fund, and you have nominal damages.
    Without those nominal damages, the lawsuit would have been 
moot. It was a one-time event. It was over by the time it could 
be litigated. Eliminating nominal damages meant that the 
plaintiffs in Hansen would have been out of court.
    There are other such cases. The elimination of damages, 
which I have not heard justified, has serious implications, 
both on the merits and in procedural terms.
    Finally, there is the question of attorney's fees, which I 
have dealt with at length in American Jewish Congress's written 
testimony. Exactly how radical this proposal is for at least 
some of its proponents on this side of the table is illustrated 
by two of the cases that Ms. Woodruff cites in her written 
remarks, as exemplifying how the ACLU, has abused the privilege 
of attorney's fees. Those cases are Freiler v. Tangipahoa 
Parish School Board and Wynne v. Great Falls School District. I 
want to tell you the facts of those cases because they 
illustrate exactly how far this bill goes.
    Freiler involved a school board's disclaimer of the theory 
of evolution. I think disclaimer can be written, and ought to 
be written, but not the way Taugipakoa Parish did. This 
particular disclaimer read that the theory of evolution is not 
necessarily in conflict in the school board's view, with--and I 
am quoting here--``the biblical version'' of the creation of 
man.
    Now there is no ``the biblical version'' of the creation of 
man, except for absolute biblical literalist. But there are 
lots of religious views, which are catalogued in my amicus 
brief in that case, by very orthodox religious groups that 
don't read the Bible literally. Here you have the Government 
taking a stand about how people ought to read the Bible.
    In Wynne, a town council always prayed in Christian terms, 
in the words of the Fourth Circuit, hardly one of the ACLU's 
favorite circuits, you had a government affiliated with a 
specific faith.
    Those are the sorts of cases which arise, which are clear 
violations of the Establishment Clause on almost anybody's 
reading of it, an official preference for one faith or the 
other, not in the historical context but in a current, 
contemporary context, and which would be barred from attorney's 
fees by this legislation. Wynne, incidentally, was not an ACLU 
case. It was a private lawyer who was handling the case for an 
impecunious individual on her own. Freiler I believe was an 
ACLU case. Wynne is a case that would be really out of court if 
this bill were adopted.
    Thank you very much.
    [The prepared statement of Mr. Stern appears as a 
submission for the record.]
    Chairman Brownback. Thank you, Mr. Stern.
    Senator Feingold. I apologize for interrupting, but I have 
to leave the hearing.
    Chairman Brownback. Before I forget, you had a written 
statement that you wanted at the end of that or something 
entered into the record.
    Senator Feingold. Yes.
    Chairman Brownback. That will be placed in the record.
    Senator Feingold. I have a similar request. I apologize for 
having to leave. This is an important hearing, but I have to go 
to an important hearing of the Intelligence Committee. And 
before I go, I wanted to put a few things in the record, if 
that would be all right.
    Chairman Brownback. Without objection.
    Senator Feingold. I hope to be able to return, but if I 
cannot I want to thank all the witnesses, and please excuse me 
for not being able to stay.
    I would like to submit for the record letters from the 
American Civil Liberties Union, the Americans United for 
Separation of Church and State, and the Jewish Council for 
Public Affairs expressing opposition to S. 3696.
    Chairman Brownback. Without objection.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Brownback. Thank you. Thank you for being here. I 
hope you can return. We will have a good dialogue.
    Mr. Staver, thanks for being here.

 STATEMENT OF MATHEW D. STAVER, FOUNDER AND CHAIRMAN, LIBERTY 
 COUNSEL, AND INTERIM DEAN, LIBERTY UNIVERSITY SCHOOL OF LAW, 
                      LYNCHBURG, VIRGINIA

    Mr. Staver. Mr. Chairman, Senator Feingold, members of the 
Committee, thank you for inviting me. My name is Mathew Staver. 
I am Founder and Chairman of Liberty Counsel and the Interim 
Dean and professor of Law of Liberty University School of Law.
    I come to this Committee having litigated and taught 
extensively in the areas relevant to the subject matter of S. 
3696. Sections 1983 and 1988 are exceptions to the American 
rule for damages and attorney's fees. Absent an authorizing 
statute, the American rule provides that each party bear their 
own cost. These sections are particularly suited for those 
cases in which plaintiffs are ill-financed and where the law 
has relatively predictability. However, in Establishment Clause 
cases, many, if not most, of the plaintiffs are represented by 
public interest law firms which will finance the case, 
irrespective of these statutes.
    Moreover, Establishment Clause jurisprudence is the most 
unpredictable and confusing area of law. There have been and 
remain sharp disagreements among the Justices of the Supreme 
Court over the meaning and application of the Establishment 
Clause. In an area of law where there are conflicting court 
decisions for every conceivable proposition, it makes little 
sense to award damages and attorney's fees to plaintiffs with 
diametrically opposed positions. 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 cases.
    While conflicting court opinions will invariably 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 opposite and irreconcilable results. One 
sad example involves New York City public school funding cases 
which were litigated at enormous expense over a decade or more. 
The same school district paid large attorney's fees after 
losing its case at the Supreme Court. But 10 years later, 
following a second challenge, this time this same school 
district won. In the Agostini decision, the Court overruled its 
prior precedent involving the same New York City school 
district. However, the scarce tax dollars were diverted to 
attorneys rather than to the disadvantaged school children.
    By providing damages in a fee-shifting statute in such a 
confused area of law, the complaining plaintiff often uses the 
mere threat of financial punishment to force government 
officials to a desired result, even if the result is not the 
right one. The confused and conflicted opinions of the 
Establishment Clause is certainly evident with the Supreme 
Court itself. The Supreme Court Justices have called the 
Establishment Clause ``hopelessly confusing.'' I don't think 
there is any other area of law that they have criticized so 
vociferously as in the Establishment Clause.
    The Court currently uses several tests, some of which 
conflict with one another, and sometimes the high Court forgoes 
using any test at all. The Court uses the oft-maligned three-
prong Lemon test. The Court later modified the three prongs to 
two prongs. But in certain institutional funding cases, the 
Court may resurrect the third prong.
    For several years, the Court added what is called the 
``political divisiveness prong,'' but then overruled itself and 
eliminated this prong. The Court also uses the historical 
analysis in Marsh. 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, but we are left with little or 
no guidance to determine which test should be used.
    The Court in Lee v. Weisman developed the so-called 
coercion test, but Justices are not in agreement when it should 
be used, nor do they agree whether coercion is psychological 
only or whether it involve some kind of force or penalty.
    Knowing the problem created by the Court itself, Justice 
Sandra Day O'Connor, shortly before her retirement, proposed a 
brand new test in the Newdow case that was supposed to be used 
in limited situations. Justice Thomas, however, has now 
advocated that the Establishment Clause does not even apply to 
nor bind the States.
    Then, of course, the Court sometimes uses no test at all 
and, even worse, provides absolutely no explanation as to why 
no test is used.
    If the Justices of the Supreme Court are conflicted over 
the meaning of the Establishment Clause, 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 mine field.
    For example, the Ten Commandments case, one of which I 
argued in 2005, is absolutely irreconcilable. No professor of 
law or practitioner in this area has argued that these cases 
are reconcilable, no matter what side of the aisle you come 
from on the Establishment Clause. The Supreme Court on the same 
day heard oral arguments on Ten Commandments decisions and 
handed them down on the same day as well. Justice Sandra Day 
O'Connor, just before her retirement, said the Court had an 
opportunity to clarify but missed the opportunity in this case 
and, in fact, caused further confusion.
    Indeed, on December 20, 2005, a unanimous Court of Appeals 
for the Sixth Circuit Court of Appeals said that, ``The Supreme 
Court has left us in Establishment Clause purgatory.''
    Another peculiarity with the Establishment Clause besides 
its absolute confusion, I think that would be admitted by all 
parties, that makes Section 1983 and 1988 inappropriate is the 
exception to the normal rules of standing. In every other area 
of law, a plaintiff must experience a direct and concrete 
injury. But in Establishment Clause cases, Federal courts have 
relaxed these requirements and carved out exceptions to the 
normal standing rules. In most lower courts, a plaintiff can 
bring an Establishment Clause challenge simply because the 
litigant claims that he or she is offended by some imagery, 
words, or alleged action. This exception to the general rules 
of standing have opened the floodgates of litigation.
    And so when you combine an exception to the rule that has 
opened the floodgates of litigation wherein you can simply file 
suit for a mere offense that something is an image, a word, or 
an action and at the same time the area of law is absolutely 
confusing and you can find decisions on both sides of the same 
exact decision--take Good Friday. There are courts going both 
ways. It makes no sense to have Section 1983 and 1988 punish 
government officials who are not Justices of the United States 
Supreme Court.
    I urge this Committee to pass S. 3696. Thank you for 
allowing me to speak.
    [The prepared statement of Mr. Staver appears as a 
submission for the record.]
    Chairman Brownback. Thank you very much. That was a very 
good, very concise set of thoughts. I look forward to the 
dialogue and the interaction in the Committee as we analyze 
some of that.
    Professor Rogers?

STATEMENT OF MELISSA ROGERS, VISITING PROFESSOR OF RELIGION AND 
PUBLIC POLICY, WAKE FOREST UNIVERSITY DIVINITY SCHOOL, WINSTON-
                     SALEM, NORTH CAROLINA

    Ms. Rogers. Good afternoon, Mr. Chairman, and thank you for 
holding this hearing and for inviting me to participate in it. 
I appreciate that.
    At the outset, I just want to make a couple of quick 
comments. As I have listened to the rhetoric surrounding this 
bill--the debate about it and the bill that was proposed in the 
House--it seems to me that one could get a false impression 
from some of this rhetoric. Some of the rhetoric seems to 
suggest that the First Amendment requires religion to be 
stripped out of the public square, and that is just wrong. The 
First Amendment prohibits the Government from promoting or 
endorsing religion, but it protects the rights of individuals 
and groups to advance their faith in American public life.
    And, of course, we only need to look all around us in 
Washington, D.C., to see evidence that the First Amendment 
protects those rights. If we look at the National Mall, for 
instance, there have been Promisekeeper rallies on the Mall. 
The Pope has held Mass on the Mall. We have Million Man Marches 
on the Mall. Here in Congress today, religious groups will be 
on the Hill to talk about issues as different as the minimum 
wage, State tax repeal, Internet gambling, marriage issues, 
Middle East policy, and the genocide in the Sudan, which I know 
is an issue you have worked on very hard, Senator.
    So these are issues where the First Amendment protects the 
right of individuals to bring their faith into the public 
square, and quite properly so. There is no sense from the First 
Amendment that religion has to be purged from the public square 
or cleansed, and those are verbs that I have heard quite often 
used.
    Similarly, in the White House, the President often makes 
reference to his faith and how it shaped his life, and that is 
all quite proper. Religious groups are invited to the White 
House to talk about issues or to celebrate Passover or 
Christmas or another religious ceremony.
    And then if we go across the river to Arlington Cemetery 
and the gravestones there, we have to think about the fact that 
these are people who have made the ultimate sacrifice and that 
there are religious symbols, if the family wishes, on those 
gravesites, whether they are the Star of David or the Cross or 
some other religious symbol. That is quite appropriate. And I 
would reject any suggestion that those are under any kind of 
threat by the First Amendment. They are not. That is protected 
religious expression, and properly so.
    So I think it is very important for us to remember in this 
discussion that the First Amendment protects the rights of 
individuals and groups to advance their faith in the public 
square, and those are just a few of the ways that are clearly 
protected by the First Amendment today, and properly so.
    Looking at this legislation today, I think that the concern 
that has been mentioned thus far is that the Establishment 
Clause is singled out by this legislation. It is the defining 
characteristic. If you look at it, it is quite striking because 
the bill does not talk about all constitutional claims or even 
all church-state claims. It singles out the Establishment 
Clause. And like Marc Stern has mentioned, I have searched for 
legitimate explanations of that, but it seems that the 
explanation that I am gathering is that some don't like some of 
the Establishment Clause principles or the way they have been 
applied by the Supreme Court. And I would suggest that that is 
a disturbing and dangerous basis for Congressional action.
    As Senator Feingold said earlier, what right tomorrow will 
be made a second-class citizen because some do not like the 
principles that the Supreme Court has articulated or the way 
that they have been applied? That is a dangerous precedent to 
set.
    Some have tried to suggest that the Establishment Clause is 
uniquely confusing or unpredictable or unstable. I think that 
is just not true. There are many parts of the Establishment 
Clause that are exceedingly clear that would be affected by 
this bill.
    For example, it has already been mentioned that the Supreme 
Court has said that one of the clearest commands of the 
Establishment clause is that the Government may not prefer one 
faith over another faith. In other words, there is a 
requirement under the Establishment Clause that the Government 
treat all faiths equally, and that is a bedrock principle. But 
this bill would disfavor claims that involve Government 
discrimination against certain faiths.
    Some of the cases that involve this kind of discrimination 
have already been mentioned, and I talk about some others in my 
testimony at greater length. I have mentioned a case that 
involved an incident where a public school teacher was saying 
how bad Mormonism was in front of a Mormon student. There have 
been allegations in a case out of Delaware that the public 
schools have favored Christianity in a variety of ways, with 
teachers saying that there is only one true religion in this 
public school and teachers giving special privileges for 
students who go to Bible Club.
    Marc Stern already mentioned a case out of Ann Arbor, 
Michigan, that was troubling where the school hosted a panel on 
homosexuality and religion, but the school only invited clergy 
leaders who believed that homosexuality and the Bible were 
compatible. When a student tried to invite a clergy person with 
a different view who believed that the Bible and homosexuality 
are not compatible, the school refused. So the student sued and 
won in that Establishment Clause lawsuit. The court found that 
the principal effect of the school's action was to suggest a 
preference for a particular religious view, and that violates 
the Establishment Clause. Well, this bill would disfavor and 
discourage these kinds of claims. I would submit, however, that 
none of these claims should be disfavored by the law.
    And, finally, I would like to mention there is often also 
the suggestion that the Establishment Clause--or the Supreme 
Court's interpretation of it reflects some kind of hostility to 
faith. That is not what the Establishment Clause says. It is 
not how the Supreme Court has interpreted it. One of the 
principles of the Establishment Clause is that the Government 
should not promote religion. It is not the Government's 
business to promote religion. It is the business of citizens 
and religious groups. And, indeed, when the Government promotes 
religion, it harms not only religious liberty but also 
religion; not only minority faiths that are not favored, but 
also the majority faith that is favored by the Government.
    And here I want to quote a Baptist pastor from the 1800s, 
John Leland, who said, ``Experience, the best teacher, has 
informed us that the fondness in magistrates to foster 
Christianity has done it more harm than all the persecutions 
ever did.''
    I think that it teaches us today that we should be very 
careful about trying to discourage or disfavor lawsuits that 
would allow the Government to promote symbols of faith, 
particularly one symbol of faith over another, but to promote 
religion generally is also a problem under the Establishment 
Clause.
    For example, I as a Christian hold a deep reverence for the 
Cross. I do not want the Government to be involved in promoting 
the Cross and the Gospel. That is my job as a Christian. That 
is not the Government's job. And I am very fearful that the day 
the Government gets its hands on the Cross is the day that the 
Cross is used as a means to a political end. I do not want the 
Government to begin to co-opt religious symbols. That is a very 
scary prospect.
    So, in my opinion, this bill is very disturbing. I think it 
ought to disturb Christians when the Government tries to co-opt 
our religious symbols. I think this bill is disturbing because 
of the dangerous precedent it will set in picking and choosing 
among constitutional rights, some for favor, some for disfavor. 
And I think it will discourage compliance with parts of the 
Constitution and harm religious liberty.
    So for these and other reasons, I would respectfully urge 
the Committee, to reject the bill.
    [The prepared statement of Ms. Rogers appears as a 
submission for the record.]
    Chairman Brownback. Thank you for your testimony. Our final 
witness today will be Shannon Woodruff to testify. Thank you 
for joining us.

   STATEMENT OF SHANNON D. WOODRUFF, SENIOR COUNSEL, AMERICAN 
          CENTER FOR LAW AND JUSTICE, WASHINGTON, D.C.

    Ms. Woodruff. Thank you. Good afternoon. I appreciate your 
allowing me to come and express the views of the American 
Center for Law and Justice in support of this law.
    I want to start by addressing one of the statements made by 
Senator Feingold, his concern about this bill putting a finger 
on the scales of justice. I would suggest that, in the absence 
of this removal of attorney's fees, the ACLU will have no 
reason to remove its fists from the same scales of justice.
    While Section 1988 was enacted for the very laudable 
purpose of making sure that poor plaintiffs were able to 
protect their basic civil rights, it has had the unintended 
effect of financing a fierce campaign by a few advocacy groups, 
a campaign of intimidation against any and all religious 
expression, acknowledgment, and accommodation in the public 
square. The threat of costly litigation has put Government 
officials into a sort of secular straitjacket where they 
actually become predisposed toward religious discrimination 
rather than accommodation in order to protect their limited 
budgets.
    This chilling effect is felt on two levels. At the local 
level, it encourages plaintiffs to bring lawsuits that are not 
well grounded in the law. It also causes the Government 
officials to surrender to demands that might not be 
constitutionally required. Second, on a national level, it 
spreads a wave of fear when these large attorney's fees awards 
come down that creates a backlash against free speech and free 
exercise rights. The Government officials are taking a 
calculated risk that it actually might be safer to suppress 
this religious expression from a liability standpoint than 
accidentally allowing too much and draw the attention of these 
eager plaintiffs. The chilling effect at both levels is 
unacceptable. By eliminating taxpayer dollars from the 
equation, this law would remove the financial incentives for 
these overly zealous plaintiffs to challenge permissible 
religious expression.
    I just want to touch on the confused state of the 
Establishment Clause, although I think Mr. Staver did a good 
job of that. But that certainly is fueling this campaign, in 
addition to these large attorney's fees awards that the ACLU 
uses to basically bear some defendants into submission.
    Nowhere is this problem more evident than in the Ten 
Commandments cases that were discussed in McCreary and Van 
Orden last summer. In each case, the vote was 5-4. Seven 
Justices issued a total of ten opinions and in neither case 
applied the same legal analysis. One commentator declared it as 
``adding mud to murky water.'' And so that confusion at the 
Supreme Court is only magnified when you look at the lower 
courts.
    This indecision can only be described as an analytical 
schizophrenia, and so plaintiffs will use this legal 
uncertainty to threaten local governments with hundreds and 
thousands of dollars of attorney's fees unless they stop 
whatever the activity is that is offending them. Even where a 
claim borders on frivolous, the fear factor can force a 
government, a local government, into settlement, not based on 
the merits but just on the fear of those attorney's fees.
    Under those circumstances, it is both counterintuitive and 
counterproductive to award attorney's fees to the prevailing 
party. Where Supreme Court Justices cannot consistently discern 
the parameters of the Establishment Clause, it is important 
that local government officials are given at least a small 
margin of error when they attempt to do the same.
    Fee awards in these cases can be devastating, especially 
when we are dealing with small towns and school boards. The 
recent high-profile case in Dover, Pennsylvania, illustrates 
this. The court ordered the school board to pay over $2 million 
in attorney's fees for including an arguably constitutional 
disclaimer in its evolution teaching. The ACLU reduced that $2 
million fee to $1 million when the school board agreed not to 
appeal this case. The ACLU is quick to use this award to 
continue its campaign of intimidation, stating, and I quote, 
``The $2 million was a very conservative number, so they got a 
terrific deal. The next school district isn't going to get the 
same break that Dover did.''
    San Diego paid the ACLU $950,000 for leasing land to the 
Boy Scouts. Great Falls, South Carolina, a small town, was 
sued, and the fees totaled more than a quarter of the town's 
annual administrative budget.
    And I think it is important to recognize that the ACLU is 
not only challenging Government religious expression. It is 
challenging any case where the Government even allows private 
religious expression. And I think some of the comments today 
have steered it to appear as pure Government action, and that 
is not the case.
    A lot of times, municipalities will just fold immediately. 
They will not even defend the expression at the district court 
level. The city council in Duluth, Minnesota, agreed to remove 
a 40-year-old Ten Commandments monument after the local 
newspaper warned readers that standing up to the ACLU could 
cost up to $90,000. So the constitutionality of that monument 
was never litigated, but the ACLU was able to use the 
settlement to pressure other municipalities.
    I think it was Professor Rogers who referred to the need 
for--or maybe it was Senator Feingold, that Rule 11 will 
prevent these frivolous claims. Well, the fact of the matter is 
that most of these lawsuits don't ever get into a courtroom 
because of this pressure and this immense fear.
    This law would not deprive any rights; rather, it is based 
on the inherent difference between the Establishment Clause and 
traditional civil rights cases. The reason the Establishment 
Clause can be singled out in this manner is because there is 
abuse that is not present in other civil rights cases, and this 
inherent difference I think eliminates any concern about a 
domino effect.
    There is a qualitative difference, for example, between the 
individual rights protected by the Free Speech, Free Exercise 
Clauses, the Fourth Amendment Search and Seizure Clause, or the 
right to vote, and a declaratory judgment that some county's 
Christmas display does not have enough reindeer next to the 
Baby Jesus.
    These are not twin guarantees, as Senator Feingold 
suggested. They are both important, but they are not the same. 
This law will not affect the prosecution of legitimate 
Establishment Clause claims. The fact of the matter is these 
claims are not being brought by impoverished plaintiffs. There 
are plenty of organizations with resources to help any 
plaintiff who seeks to enforce the Establishment Clause. The 
current situation is actually frustrating the proper 
enforcement of the Establishment Clause.
    The ACLU or other organizations are not never going to turn 
down a valid Establishment Clause case. The hope is that they 
will, however, be a little bit more judicious in their 
selection of those cases.
    Litigation under the current system has truly transformed 
the Establishment Clause into a very real and complex obstacle 
for many Americans to exercise their First Amendment freedoms. 
It has also forced many local and State governments to sever 
their ties with America's rich religious traditions. Although 
1988 was designed to protect the little guy and help the little 
guy, it is being used by the big guys to actually strap local 
governments and with the threat of litigation silence them. 
This law is necessary to end this abuse.
    Thank you.
    [The prepared statement of Ms. Woodruff appears as a 
submission for the record.]
    Chairman Brownback. Thank you. I appreciate it. I 
appreciate all the testimony of the witnesses, and in case you 
are wondering the motivation for introducing the bill itself, I 
put it forward--it is something--we are all products somewhat 
of our own past and our background, I guess--as a small town 
lawyer representing a couple of small towns. And I would see--I 
did not see these when I was practicing there, but I have read 
enough of them when groups come forward, and it typically is 
the ACLU. There are other groups, but it is typically the ACLU 
that comes up to a small town with a limited budget and not a 
large staff at all, and they say, We don't like this particular 
item that has some Establishment Clause feature to it, and then 
the threat is always--and what the city council members are 
always asking about, What are the attorney's fees in this case? 
And it is a bludgeon. It is blackmail from any sort of free 
discussion of, well, maybe we should take that off because it 
does not reflect what the citizens here have. Or others say, 
well, no, we should not do that because we are not trying to 
put our hands on the cross, I guess, as Professor Rogers is 
asking if that is the purpose. It is not the purpose of doing 
this. It is simply to allow there to be a fair discussion and 
it not being decided by the threat of legal fees. It should be 
decided by courts and not by a threat of legal fees. And that 
is why this is being put forward. That is why I put forward 
this bill.
    I would like to know, Mr. Lloyd, going to some specific 
questions, you said that there are a number of examples of 
where local units of the American Legion are being threatened 
with legal fees if they do not--or a number of examples of 
local suits. Could you cite some of those? Or perhaps they are 
in your written testimony, but do you know of some that are 
current situations where people are being threatened with legal 
fees?
    Mr. Lloyd. The threat that was absolute as in the Mount 
Soledad litigation to save the Mount Soledad Veterans' Memorial 
as it is, where it is. The ``as it is'' includes a cross. That 
is part of the integrity of the entire memorial, and we are 
opposed to desecration by amputation because it happens to be a 
symbol not only of sacrifice but to have a religious aspect as 
well. The original plaintiffs in that case, as I said, were 
Phil Thalheimer, who is Jewish; the president of San Diegans 
for Mount Soledad; Dr. John Steele, a Navy pilot, a medical 
officer later; and the sons of the person, the contractor who 
actually built it. And they were plaintiffs, and they were 
threatened. And those letters are in the record of the Fourth 
District Court of Appeals at this time.
    Chairman Brownback. Do you have other cases? That one is a 
well-known case. Are there others that you hear about from 
American Legion groups or other local units of government 
across the country? Mr. Lloyd. What I hear is obvious because I 
am lawyer for them. And, by the way, I am a pro bono lawyer for 
the American Legion. I don't have to be bribed into doing the 
right thing.
    We have to advise and I have to advise the American Legion 
that when we go into a case, if we intervene as a party to 
fully participate--and I would hope--you mentioned your 
background as a municipal attorney. They are not experts on 
constitutional law, the Establishment Clause. Chairman 
Brownback. I certainly was not. I want to enter that for the 
record.
    Mr. Lloyd. Well, they have to either go out and hire 
attorneys, or you send in somebody whose whole life is 
litigating constitutional issues against somebody who knows all 
about contracts in the municipal sector, and then they end up 
looking at all these attorney fees.
    I have to advise the American Legion--and I do--if we go in 
and intervene in the case and fully participate and bring the 
degree of expertise that we can to the case, you can end up 
paying the ACLU's attorney fees.
    We have not gone in. We are an amicus curiae, a friend of 
the court, in the Soledad case. We are an amicus curiae in the 
Mojave Desert case, the Mojave Desert World War I Veteran's 
Memorial case. We would like to be participating fully. Our 
First Amendment rights are being throttled because we cannot 
get in front of those courts because of that risk.
    And I would say to you, in regard to that, in the L.A. 
County Seal case where you had this display, nobody got 
involved in that case because the county settled rather than 
face the risk of the imposition of these fees. They are 
spending $1 million to change their seal, fearful that a court 
would award even more in light of what happened in San Diego.
    In Redlands City Council, very similar to the examples you 
were giving, all five council people said, ``We don't want to 
change our seal, but we are being advised by our pro bono 
counsel that we could end up paying their fees. We cannot do 
that. We need the money for civil services.'' They cannot 
afford to change it. They are calling in everybody who has a 
badge in their town, and they are drilling holes through the 
cross on the badges of police and fire and inspectors.
    I suggest to you that is obscene that we have elected 
bodies so fearful of these attorney fees that they would drill 
holes through the badges in order to satisfy the whims, the 
constitutional whims, of the ACLU with one threat: ``You will 
pay our attorney fees.'' I am on a memorial honor detail team, 
and I think of Attorney Rogers' statement. She rejects the 
notion there is a threat. Really? I am on an honor guard team 
of Riverside National Cemetery. It is the largest one in the 
country in terms of space, over 80,000 graves there with 
crosses and Stars of David and other religious symbols that are 
the choice of the family. I suggest to you, Senator, if it is 
unconstitutional to have a religious symbol on Federal 
property, which is what the ACLU says and asserts, you cannot 
have somebody make a choice to do it. But beyond that, these 
symbols are not limited to what is on gravestones. At Riverside 
National Cemetery is the United States National POW-MIA 
Memorial, done by artist Lee Millett, a Vietnam veteran--and, 
by the way, Vietnam era. He is a Vietnam vet of a recondo unit. 
His father was a Medal of Honor recipient--is a Medal of Honor 
recipient. He designed that statue that is there. It is 
absolutely magnificent. But he also inscribed a prayer in it. 
That is a target. Almost every one of our veteran cemeteries 
also has symbols that are not on gravesites but in the park 
itself, in the cemetery itself. They are all at risk.
    And who is to say that those who hate America are not going 
to bring these suits? And I heard the objection, oh, this is 
McCarthyism. That is absolute nonsense. There is nothing in 
your bill that would stop anybody from filing a suit. They just 
are not going to get attorney fees for it. And we should--
    Chairman Brownback. Let me--
    Mr. Stern. Senator, could I respond--
    Ms. Woodruff. Senator, could I--
    Chairman Brownback. I knew we were going to get this way. I 
will give you a chance to respond. I want to ask a couple of 
questions here, and then I would be happy to have you respond. 
Really, I want to look at this as much as we can as a legal 
issue that obviously everybody looks at and has deep concerns 
of how in careens out of control. I think that is most people's 
concerns here. But I want to look at it as a narrower legal 
issue. And, Mr. Staver, if I could ask you along--
    Mr. Lloyd. Senator, with all respect, with all the excited 
utterances, I did want to talk about the Mojave Desert case.
    Chairman Brownback. We will hit that at another point, 
maybe. I want to get narrowed in on some of these.
    Mr. Staver, you have litigated these sorts of cases before. 
I hear the claim that this is going to hurt bringing of these 
sorts of cases or it is going to limit this constitutional 
right by removing the legal fees as provided for in Section 
1988. Why is injunctive relief, declaratory relief insufficient 
to bring these sort of cases? And I am going to direct the same 
question towards you on that, Mr. Stern. I believe you raised 
that issue. But why is this insufficient, injunctive or 
declaratory relief?
    Mr. Staver. Mr. Chairman, I think that is a good question. 
It is not insufficient. It is totally sufficient for what is 
needed to remedy any constitutional violation under the 
Establishment Clause. Professor Rogers and Mr. Stern have 
raised issues, and they have mentioned rhetoric and putting 
aside the rhetoric. I think when you really do that, you look 
at this in history and the historical context and what is 
really being addressed here and what is not.
    From 1976 to the present is the only time in American 
history that we had Section 1988. That changed the American 
rule in allowing attorney's fees and damages in these kinds of 
cases. So for two centuries of our history, we haven't followed 
this fee-shifting provision. In fact, if you look back, when we 
look at the constitutional Establishment Clause cases that came 
from the 1940s and the 1960s, we did not have Section 1983. The 
Bible reading and prayer in school were litigated prior to 
Section 1983.
    When 1976 came and the 1988 statute was amended to allow--
and I said 1983. I should correct that to be 1988. When 1976 
came and Section 1988 was amended to allow this fee-shifting 
statute, it was done coming out of the idea of the civil rights 
movement, and one of the things they wanted to do is to finance 
ill-financed plaintiffs, people who were discriminated against 
primarily because of their race or their gender, people who 
lost their jobs--
    Chairman Brownback. Primarily civil rights cases.
    Mr. Staver. Exactly. They lost their jobs because of the 
color of their skin or their gender. Obviously, they did not 
have the money to go out and hire an attorney to litigate that 
basic constitutional right, for which we passed three separate 
constitutional amendments to protect, and passed a number of 
strong pieces of legislation in the 1960s.
    But now the time has changed as it relates to this area in 
two specific respects. Number one, the rise of public interest 
law firms. There will not be one less suit brought that is 
legitimate if you take away this attorney-fee-shifting statute 
because you still have the ACLU, you still have other 
organizations, that are very well-financed public interest law 
firms that will bring the cases irrespective of whether there 
is a fee-shifting statute.
    One of the things that it will prohibit, however, is the 
intimidation threat that a Government official, who is simply 
trying to do his or her job, that is confused, as all of us 
are--and anyone who says they are not is either disingenuous, 
does not litigate, does not teach, or is dishonest in 
addressing what the Establishment Clause jurisdiction is today. 
But a Government official who is simply trying to do his or her 
job gets the threat of an attorney's fee letter from the ACLU 
will back down from their activity, even though it is 
constitutional if litigated all the way up to the Supreme 
Court, simply because of the threat of attorney's fees. So it 
will not stop the legitimate cases. Injunctive relief and 
declaratory relief are absolutely essential, but it will take 
away this attorney's fee provision that I do not believe is 
appropriate under these circumstances in the Establishment 
Clause cases.
    Chairman Brownback. Mr. Stern, he says it far better than 
I, but that is my experience as a small town lawyer, that you 
get these sort of threats and the city council just says, ``We 
do not have enough money to deal with this.''
    You know, as a lawyer, I get my back up and I say, well, 
no, let's go fight it. Well, then they say, ``How much is it 
going to cost for you and how much is it going to cost for 
those other guys?'' And it quickly adds up, and they say, ``We 
are just not interested in this.'' It just happens all the 
time.
    I am wondering why the injunctive relief is not-- 
injunctive and declaratory relief is not sufficient to keep 
these cases coming so people's legitimate rights are protected.
    Mr. Stern. I want to go back to what I said. We need to 
keep clear in our heads that there is a difference between the 
remedies, whether monetary damages ought to be available, and 
the attorney's fees issue.
    Take the Hansen case in Ann Arbor. It is a one-time, once-
a-year diversity program. What was challenged was a particular 
configuration of a particular panel. By the time the case gets 
to court and can be litigated, there is more injunctive relief 
available. The issue is moot. The Diversity Day has occurred. 
There is no showing it is going to happen next year. You cannot 
get an injunction.
    You cannot get a declaratory judgment because in O'Shea v. 
Littleton, the Supreme Court said you cannot get a declaratory 
judgment for a completed constitutional violation for which 
there is no other remedy available.
    So in that sort of complete violation, in the case in 
Delaware--
    Chairman Brownback. Let me get you to a sharper point. So 
you are saying in that type of case, the only tool that is of 
any use is the--
    Mr. Stern. Is damages or nominal damages.
    Chairman Brownback. Is attorney's fees.
    Mr. Stern. No. You cannot even get a declaration that the 
act was unconstitutional unless you are able to seek either 
real damages or nominal damages. If you have a complete 
constitutional violation for which you cannot--you can't get an 
injunction because there is no likelihood of it recurring, the 
only way you are going to get a court to declare that the act 
was unconstitutional and to settle issues--because there are 
lots of issues that need to be settled--is by allowing nominal 
damages. That is what happened in the Hansen case. They sought 
and were awarded nominal damages. If there had been no nominal 
damages available, we would not have had a decision that says 
you cannot exclude conservative pastors from a panel on 
homosexuality.
    Chairman Brownback. Let me turn the question this way. You 
are an accomplished lawyer, very accomplished individual and 
contributed a lot to this country and I appreciate it. Do you 
deny that this goes on, that attorney's fees are used in these 
cases to threaten city councils?
    Mr. Stern. Certainly. There is no question it goes on. It 
goes on not only in the Establishment Clause area; it goes on 
in the free speech area.
    Let's play out a case in which I was involved. A school 
board as a defense to plaintiffs urged that the Establishment 
Clause required it to act as it did. If the Establishment 
Clause is not clear when plaintiffs invoke it, it is not clear 
when defendants invoke it. The case involved whether a teacher 
could teach an after-school Bible Club in her own elementary 
school. The school district said you can teach in some other 
school, but not in your own building, because we think that 
second and third graders will not be able to tell the 
difference between you before 3 o'clock and after 3 o'clock. We 
think it said, if we were to allow you to do that, that would 
be an Establishment Clause violation.
    The teacher challenged the school board's decision raising 
free speech and free exercise claims. She won that lawsuit in 
the Eighth Circuit. She is entitled to attorney's fees under 
this bill.
    I told the school board--and I consulted with Professor 
Douglas Laycock, a well-known expert in the field. We both 
thought that the decision of the Eighth Circuit was flat-out 
wrong. We were prepared, pro bono, to carry the case to the 
Supreme Court. The school board voted not to carry the case to 
the Supreme Court because they would have to pay plaintiffs 
attorney's fees if we were unsuccessful.
    Let's play that out the next year. Ms. Wigg is in her 
classroom before 3 o'clock and says to the kids, ``By the way, 
kids, you know, I have a Bible study class right after school, 
and we have a good time.'' Parent brings a challenge saying 
that amounts to coercion. They allege that Ms. Wigg's speech 
constituted an establishment of religion. Those plaintiffs 
cannot get attorney's fees even if they win, even though it is 
the same facts, the same uncertainty, the same unclarity in the 
law.
    So if there is unclarity--and I can tell you, because I saw 
the letters in the 1980's from the head of the American Center 
for Law and Justice when equal access for student clubs was 
very much up in the air, writing letters to school districts 
saying if you do not do what I want, I am going to sue--or I 
don't remember if it was with ACLJ or another group at the 
time--and we will get attorney's fees.
    So there is lots of this threatening stuff going on on both 
sides.
    Chairman Brownback. And that is my exact point there. So 
why should you--
    Mr. Stern. So this does not--
    Chairman Brownback. In American jurisprudence, we have not 
had--it does not seem to me that we have had the use of 
attorney's fees being a threatening tool. It is really that 
there should be a relief granted--
    Mr. Stern. Fine. If you want to take--as I said in my 
testimony--
    Chairman Brownback.--then attorney's fees being the club 
and--
    Mr. Stern. Sure.
    Chairman Brownback. You acknowledge, as others do, that 
that is the club that is being used here.
    Mr. Stern. Right. And if you want--and there are ways--
    Chairman Brownback. If you can help us draft it better--
    Mr. Stern. I have only done it--I actually only threatened 
once, when a school superintendent ran for election against our 
lawsuit, so I figured it was fair enough to hit him with 
something back.
    But my problem is not that there is a club. I grant you 
that is a club. In some measure, that is a necessary club 
because, otherwise, you get people who think there is cost-free 
political advantage in violating known constitutal. Roy Moore 
was running for Governor on the back of his Ten Commandments 
display. No serious scholar thought that he was going to get 
away with a 5-ton Ten Commandments in the middle of Alabama 
Supreme Court building. The Supreme Court, right before it took 
the other two Ten Commandments cases, pointedly turned that one 
down.
    But we do not have to go there. My point is simply this: If 
there is a coercive effect--and there is--and if local 
government sometimes fail to assert plausible defenses because 
they are afraid of attorney's fees, it is not only when I, 
representing plaintiffs, threaten to bring an Establishment 
Clause case and seek attorney's fees. There are cases in which 
people are seeking access to the public schools, the school 
board is defending on the Establishment Clause. It is the same 
uncertainty and it is the same club. So if you are going to 
deal with that problem, deal with the problem of the club as a 
whole, but in ways that are neutral to the merits.
    Chairman Brownback. That is my point. That is the point of 
this, is to take the club--
    Mr. Stern. No, but this bill does--it only solves--it takes 
away the club for me and it leaves the club in Ms. Woodruff's 
hands.
    Chairman Brownback. It does not leave it in her hands.
    Mr. Stern. Sure it does. She brings a free speech and free 
exercise claim.
    Chairman Brownback. She cannot claim attorney's fees in 
this. We take the attorney's fees--we are saying that this is 
going to be the American jurisprudence system that--
    Mr. Stern. No, no, because it does not say--
    Chairman Brownback. --the loser pays.
    Mr. Stern. When Ms. Woodruff sues the school district 
saying, ``I want access to the building,'' she is claiming 
under the Free Speech and Free Exercise Clause. If she wins, 
she is entitled to attorney's fees. Since the school board does 
not know if she is going to win or their Establishment Clause 
defense is going to prevail, you have got exactly the club 
problem you describe. They are afraid that if she wins, they 
will have to pay their own attorney and her attorney, because 
their defense is the Establishment Clause.
    If you flip the facts around and the plaintiff is invoking 
the Establishment Clause, in this bill there is no club.
    Chairman Brownback. Would you support the bill if the club 
is taken from both sides then to your satisfaction?
    Mr. Stern. That would leave a level playing field.
    Chairman Brownback. Would you support that sort of--
    Mr. Stern. I would have to think about it, but I think I 
could.
    Chairman Brownback. Ms. Woodruff?
    Ms. Woodruff. I just want to respond. I think the club that 
is left in our hands in those equal access cases, the free 
speech cases, is, in fact, the Freedom of Speech and the Free 
Exercise Clause in the First Amendment. It is a different club. 
The only reason that we have engaged in an educational campaign 
to school districts, superintendents, city councils, is in 
specific response to the intimidation campaign of groups like 
the ACLU. You cannot deny that there is a qualitative 
difference between the affirmative civil rights for which 1988 
was originally intended and Establishment Clause violations. 
There is a qualitative difference in the injury that is 
suffered in each of those, and that is what makes singling out 
the Establishment Clause legitimate.
    Ms. Rogers. Senator Brownback, could I--
    Chairman Brownback. Please, Ms. Rogers.
    Ms. Rogers. Thank you so much. And let me thank you for 
your conducting this in such an open and probing manner. I 
really appreciate the way that you are digging into these 
issues and letting us all contribute to the conversation.
    There are a couple of things I want to get to really 
quickly. Mr. Lloyd talked about--and I think it is in his 
testimony--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. It must be unconstitutional, I assume he 
is saying, if it is on the gravestone where the family has 
chosen it as it is when the Government erects a cross like 
Mount Soledad or some other case. And I would submit those 
cases are very different.
    Our constitutional rule is not that religious symbols 
cannot be in the public square. It is, ``To whom is the 
religious symbol attributable or the religious expression 
attributable? '' And the Court has said there is a crucial 
difference between Government speech endorsing religion, which 
the Establishment Clause forbids, and private speech endorsing 
religion, which the Free Exercise and Free Speech Clauses 
protect.
    Now, that does not mean the place determines. It is who is 
doing the speaking. To whom is the speech attributable? The 
United States is not France. France in some respect cleanses 
the public schools of religious expression. We do not do that. 
We ask, ``Is the religious attributable to an individual or is 
it attributable to the Government? '' And that is the dividing 
line, and that is where the ACLU is drawing the line in the 
case involving the grave markers where they are saying when the 
religious symbol is clearly attributable to the family on the 
gravestone, that is protected by the First Amendment. They take 
a different position when it has to do with the Government 
erecting a Government-sponsored cross in a cemetery and then 
doing it that way.
    So that is a very important distinction. It goes to the 
core of constitutional law, and we ought to recognize that. And 
the ACLU, I believe, on the House side wrote a letter saying 
that they are not threatening the markers on these gravestones. 
So that is very important.
    Then I will say that the club is not different than the 
ones Ms. Woodruff is talking about. It is pressure coming from 
different sides about different issues, but it is not different 
qualitatively. It is pressure to enforce constitutional rights.
    Chairman Brownback. Ms. Rogers, could I address you on that 
point? Mr. Stern was kind enough to say obviously there is a 
club here and it is used.
    Ms. Rogers. Right.
    Chairman Brownback. Would you agree with that, that these 
attorney's fees is a club and it is used often across the 
country?
    Ms. Rogers. Yes, I mean, it is pressure brought from 
different sides on different issues, and it happens.
    Chairman Brownback. And I would think you--I know you are 
teaching at the Divinity School, but you are a trained lawyer 
and you have worked these cases, too.
    Ms. Rogers. Well, I would say I am not a litigator. I am an 
attorney.
    Chairman Brownback. Okay. We do not usually set our system 
up such that the attorney's fees are what you use for a club to 
get somebody to do something, because normally our system--the 
American system of legal decisions is you pay your legal fees, 
I pay my legal fees. So usually this is not a club in the 
American jurisprudence system.
    Ms. Rogers. Well, each pays his own is the typical rule, 
but, of course, it is different under 1988.
    Chairman Brownback. Yes. My point is here--and that is the 
only point with this that we are trying to get at, and if we 
have inartfully drafted this, submit suggestions to us, because 
I want to look at it and I want to consider what you have.
    Ms. Rogers. Thank you.
    Chairman Brownback. In an area where we have got now-- we 
are at 40 years plus of litigating and trying to decide where 
we are on the Establishment Clause and what it means. This has 
been going on for some period of time, and this has been up and 
down to the Court a lot of times, and it is a confused--I think 
most people would say there is some confusion in this area of 
the law. And so if you are on that local level, the deciding 
factor should not be the club of attorney's fees, and that is 
all we are trying to get at here. And if you agree with that 
point, I would appreciate you telling us how we ought to 
redraft this so that we make it balanced and the attorney's 
fees is not the club, that it is actually somebody wanting to 
change this.
    Ms. Rogers. Just two quick comments on that. What jumps out 
at you in the bill is the way that the Establishment Clause is 
selected out. Now, I am not saying what other arguments I would 
make about 1988 generally, but when you single out the 
Establishment Clause, it really raises questions. So I 
appreciate your openness to asking about, well, how can I be 
not selective, because this bill is quite selective. And that 
raises questions.
    Now, I would say there are areas of confusion with regard 
to the Establishment Clause. There are areas of great clarity 
and there are areas of confusion. But the Establishment Clause 
is not uniquely confused. You can ask law professors all across 
the country, and I have quotes in my testimony about scads of 
areas that are difficult and very challenging. The 
Establishment Clause is not unique in this respect. And so when 
you single it out, that tends to add more to the questions that 
are being raised here.
    Mr. Staver. Mr. Chairman?
    Chairman Brownback. Mr. Staver, please.
    Mr. Staver. Section 1988 is never applied to the Federal 
Government. The Federal Government does not have the fee-
shifting statute under Section 1988. No one would argue that 
the Federal Government has run roughshod over constitutional 
rights regarding the Establishment Clause, simply because there 
is no threat of an attorney's fee.
    Chairman Brownback. That is a good point.
    Mr. Staver. You do not have damages in the Federal claims. 
Michael Newdow was not hesitant in any respect in bringing his 
challenge against the Pledge of Allegiance, and one of the 
entities he sued was at one time Congress. He would do that and 
the ACLU would do that and anyone else would do that if they 
felt an Establishment Clause violation occurred. In fact, the 
ACLU in Nebraska several years ago, a local affiliate of the 
ACLU brought suit against ``In God We Trust.'' The fact is 
there is no rampant example within the Federal Government of 
running roughshod over constitutional rights in Establishment 
Clause cases simply because we have never from the history of 
our founding to the present had a fee-shifting statute. All 
this particular statute does is put the State and local 
governments in the exact same position that the Federal 
Government is in.
    A couple of these things that I would ask of my colleagues 
here. I think Mr. Stern has tried to argue a difference between 
damages and fees, on the one hand, saying that since this does 
not have a damage provision, then in this illustration that he 
mentioned with regard to the Hansen case and the diversity 
program, then he would not be able to file suit, or if he did 
it would be mooted because it would be over and there would be 
no nominal damage.
    Well, first, there are exceptions to the mootness doctrine. 
There are a number of those kinds of exceptions. One of those 
is capable of repetition yet evading review.
    Secondly, the declaratory judgment is, as the Supreme Court 
said, a much lesser or less harsh remedy and, therefore, you 
should--in places where injunctive relief were not appropriate, 
you could still declare the constitutional rights.
    But, finally, I would throw out to my colleagues, would 
they be different, would they support this bill if this bill 
were to be amended to say that you could have no more than a 
nominal damage claim? And a nominal damage claim is $1 to $10. 
Would they all that? That would address their issue of 
mootness, and then we are back to the square one issue why we 
are here. Why should we have attorney's fees as a club, which 
they have acknowledged it is, in a confusing area of law, which 
they acknowledge it to be, simply as a club? I don't think that 
that is an appropriate way to use attorney's fees. That is not 
the way 1988 was designed.
    Mr. Stern. Can I respond to that, Senator?
    Chairman Brownback. I am going to go back to Mr. Lloyd, and 
then I will turn to you, Mr. Stern.

    Mr. Lloyd. Thank you, Senator, and I want to reference 
specifically the comments made by Ms. Rogers and veterans' 
memorials. She said the difference is that individuals can 
choose, family members can choose what they want, and that 
makes it constitutionally different. Senator, the land is 
Federal land. No private citizen has a right to say, ``I want 
to erect this thing on Federal land.'' But I think she is 
unaware of or ignoring the fact when she testifies if the 
Government puts it up, that is different. There are 9,000 
crosses at Normandy Beach--9,000 crosses, raises crosses, 
raised Stars of David, put up by the Government, our 
Government, maintained by France but it is considered American 
land. We put those up as a Nation to honor those who gave their 
lives. Those were not family decisions.

    The other thing, the reference that the ACLU sent you a 
letter and said they will not sue. Who can put any credence on 
that? Maybe today they will not. Maybe if you pass your bill or 
your bill gets defeated, maybe they will.

    I started to talk about the Mojave Desert case before I got 
so rudely interrupted. In Mojave Desert, who would have dreamed 
that the ACLU or anyone else would sue a World War I memorial 
11 miles off the road in the desert? It is two tubes strapped 
together on a rock outcrop in 1934 by veterans to honor 
veterans of World War I. Here, during the Clinton 
administration in 1994 or 1995, it is incorporated in the 
Mojave Desert Preserve. At that time the Assistant 
Superintendent was a man named Frank Buono. He does not say a 
word. He does not say you cannot do this. He does not complain 
and say no, no. He is the Assistant Superintendent. He has got 
all the power in the world to stop it. He does not say a word.

    The ACLU sues. It is out in the middle of the desert, no 
people, no press, no nothing. It is a stealth lawsuit. Nobody 
knows about it until the judge says destroy it and gives them 
$63,000 to destroy that veterans' memorial.

    You have to drive to it, Senator, to be offended by it. You 
better take water or you might not make it back. That is how 
far they would go.

    So I put no credence whatsoever that we have a guarantee. 
Oh, they wrote a letter, ``We won't do it.'' What stops the 
other people who hate America from doing it? And then a very 
crucial thing in this discussion, all we are talking about here 
is money for attorneys. Money for attorneys. These statutes 
were passed to benefit poor people. Who is the plaintiff in the 
Van Orden case out of Texas? A homeless lawyer. That ought to 
bring a tear to any American eye.

    I do not think that was passed to benefit people like that. 
Who is the plaintiff who would destroy the Mojave Desert 
Veterans' Memorial? Frank Buono--the same guy who was the 
Assistant Superintendent. He got his pension. He moved to 
Oregon, and he sues in California. And what is his theory, 
Senator? What is the injury? He might come back to visit and he 
might drive on that road and he might see the cross, and if he 
sees it, he would be offended by it.

    In his testimony, Senator, he says he has no religious 
objection. He says he is Roman Catholic. He just objects on 
constitutional grounds.

    Those kinds of suits may not result in fees under Rule 11. 
They are tearing it down. But look at the dimension that it 
puts us in. We cannot even go in as the American Legion to 
fight a case like that because we might end up having to pay 
that $63,000. And I think it is critical to understand--and 
every Senator should--we are not only talking about attorney 
fees. There are no attorney fees. I was an ACLU attorney. I 
know to a certainty under the rules of the ACLU every case is 
done by staff or a volunteer pro bono attorney, who are 
forbidden to receive fees. The clients have no fees. The ACLU 
has no fees. And this is pure profit.

    In the Dover case that counsel represented, $2 million was 
awarded by a court in the Dover intelligent design case, even 
though the pro bono firm representing the ACLU said in court 
and publicly announced they were waiving all fees. The ACLU had 
no attorney fees.

    So a benevolently developed statute to protect poor people 
is being used for pure profit, because there are no fees. And 
the other dimension to your fee provisions as they exist, 
Senator, is those fees are supposed to belong to the clients, 
not the attorneys. And there is case after case after case in 
which municipalities and other Government entities will settle 
cases--maybe you are familiar with this--and they will offer a 
settlement that says this include attorney fees, and that puts 
the attorney and the client in an adverse position, and the 
client then can say, ``I will take that,'' even though the 
attorney wants a lot more money. Every other statute that I 
know of, Senator, says ``attorney fees incurred,'' except this 
one. In this area, we will sue you, we will demand attorney 
fees, and we will get market rate even though we have none. And 
in California, it is $350 an hour, and the municipalities 
cannot pay that. It is a club, and I thank you for trying to 
remove it.

    Chairman Brownback. Well, I think this is trying to 
establish some fairness of the debate on the Establishment 
Clause in this country, which is a very long and deep one. We 
do it based upon what is actually there and not some club that 
I think seems to me to be an inappropriate tool to be able to 
use.

    I want to wrap this hearing up. Can I give you a minute? We 
are going to be called over for a vote, Mr. Stern, and I want 
to be fair with your--

    Mr. Stern. The ACLU actually once brought a lawsuit 
challenging a cross as a war memorial. The county's defense 
was, if you allow them to take down the monument, they will 
take down the crosses and the Stars of David over individual 
graves. The ACLU said, ``No, we are not going to do that.'' So 
it is not a question of speculation. It is not merely relying 
on a letter to the House committee. They have actually 
litigated in that fashion.

    Secondly, in my earier career, I spent a lot of time on 
civil rights. I can tell you that municipality after 
municipality changed their civil service rules because the 
extent of Title VII was unclear. They were afraid of paying 
attorney's fees to organizations that were litigating on behalf 
of minorities. There were settlements that were coerced in 
exactly the same way that has been described. This is a problem 
of an attorney's fee award. There are advantages. But the 
disadvantages are the ones you talked about.

    Finally, Mr. Staver talks about nominal damages only. In 
the run of cases, that is probably an attractive idea. If you 
think, however, of the chaplains' case here in D.C. where 
people are talking about thousands of dollars of salary and 
pension, you are cutting them off. In the Municipal Army case, 
which has got a new name, where there were real solicitations 
lost. If you limit people to nominal damages in Establishment 
Clause cases, you are harming those plaintiffs.

    And, finally, I come back to Wynne, a case brought by a 
private attorney, not by the ACLU, who said the only reason he 
could do it was because he hoped he would get attorney's fees. 
That sort of case, which is a clear violation of the 
Constitution, no uncertainty there whatsoever, would be cut off 
this way. If you are going to do it, at least do it so that it 
is across the board. When an Establishment Clause issue is 
fairly in the case, nobody gets attorney's fees.

    Ms. Rogers. Mr. Chairman?

    Chairman Brownback. And I hope you will work with us then 
in looking at how you would suggest that to be written so that 
we could have a situation where you actually had the cases 
discussed and decided and local communities making decisions 
based on merit and not on the threat of attorney's fees. That 
is what we are trying to get at with this particular bill.

    It would be my hope at the end of the day we might get 
cross-aisle support that a lot of people would look at that and 
say, you know, this is such a tough, contentious area of law, 
neither side should have attorney's fees clubs, and this should 
be litigated by the courts. And let's have it dealt with there, 
but let's not throw it out at the very earliest stages just 
because a community is scared of the attorney's fees. On such 
an important, key public policy debate and confused area of the 
law, that seems to me to just be fundamentally fair.

    We will keep the record open for 7 days--Ms. Rogers, if you 
have just one minute, I will take a minute; otherwise, I need 
to--

    Ms. Rogers. Yes, sure. Thank you so much. I just want to 
underscore that I think the award of attorney's fees can be 
helpful in many situations, for example, on RLUIPA, the 
Religious Land Use and Institutionalized Persons Act, the Free 
Exercise Act that you worked on in 2000, that allows reasonable 
attorney fees to be awarded to prevailing parties. So we need 
to be very careful about this. I think we need to be very 
evenhanded at least, and also very careful.

    Chairman Brownback. I hope you can help us with that in 
that process, too.

    The record will remain open 7 days. I ask unanimous consent 
that a series of letters supporting the bill be entered into 
the record, and they will be.

    I want to thank the panelists and those in attendance. The 
hearing is adjourned.

    [Whereupon, at 4:02 p.m., the Committee was adjourned.]

    [Questions and answers and submissions for the record 
follow.]

    [Additional material is being retained in the Committee 
files.]

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