[Congressional Record Volume 152, Number 122 (Tuesday, September 26, 2006)]
[House]
[Pages H7389-H7404]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
VETERANS' MEMORIALS, BOY SCOUTS, PUBLIC SEALS, AND OTHER PUBLIC
EXPRESSIONS OF RELIGION PROTECTION ACT OF 2006
Mr. SMITH of Texas. Mr. Speaker, pursuant to House Resolution 1038, I
call up the bill (H.R. 2679) to amend the Revised Statutes of the
United States to eliminate the chilling effect on the constitutionally
protected expression of religion by State and local officials that
results from the threat that potential litigants may seek damages and
attorney's fees, and ask for its immediate consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 1038, the
amendment in the nature of a substitute printed in the bill is adopted
and the bill, as amended, is considered read.
The text of the bill, as amended, is as follows:
H.R. 2679
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Veterans' Memorials, Boy
Scouts, Public Seals, and Other Public Expressions of
Religion Protection Act of 2006''.
SEC. 2. LIMITATIONS ON CERTAIN LAWSUITS AGAINST STATE AND
LOCAL OFFICIALS.
(a) Civil Action for Deprivation of Rights.--Section 1979
of the Revised Statutes of the United States (42 U.S.C. 1983)
is amended--
(1) by inserting ``(a)'' before the first sentence; and
(2) by adding at the end the following:
``(b) The remedies with respect to a claim under this
section are limited to injunctive and declaratory relief
where the deprivation consists of a violation of a
prohibition in the Constitution against the establishment of
religion, including, but not limited to, a violation
resulting from--
``(1) a veterans' memorial's containing religious words or
imagery;
``(2) a public building's containing religious words or
imagery;
``(3) the presence of religious words or imagery in the
official seals of the several States and the political
subdivisions thereof; or
``(4) the chartering of Boy Scout units by components of
States and political subdivisions, and the Boy Scouts' using
public buildings of States and political subdivisions.''.
(b) Attorney's Fees.--Section 722(b) of the Revised
Statutes of the United States (42 U.S.C. 1988(b)) is amended
by adding at the end the following: ``However, no fees shall
be awarded under this subsection with respect to a claim
described in subsection (b) of section nineteen hundred and
seventy nine.''.
SEC. 3. LIMITATIONS ON CERTAIN LAWSUITS AGAINST THE UNITED
STATES AND FEDERAL OFFICIALS.
(a) In General.--Notwithstanding any other provision of
law, a court shall not award reasonable fees and expenses of
attorneys to the prevailing party on a claim of injury
consisting of the violation of a prohibition in the
Constitution against the establishment of religion brought
against the United States or any agency or any official of
the United States acting in his or her official capacity in
any court having jurisdiction over such claim, and the
remedies with respect to such a claim shall be limited to
injunctive and declaratory relief.
(b) Definition.--As used in this section, the term ``a
claim of injury consisting of the violation of a prohibition
in the Constitution against the establishment of religion''
includes, but is not limited to, a claim of injury resulting
from--
(1) a veterans' memorial's containing religious words or
imagery;
(2) a Federal building's containing religious words or
imagery;
(3) the presence of religious words or imagery in the
official seal of the United States and in its currency and
official Pledge; or
(4) the chartering of Boy Scout units by components of the
Armed Forces of the United States and by other public
entities, and the Boy Scouts' using Department of Defense and
other public installations.
SEC. 4. EFFECTIVE DATE.
This Act and the amendments made by this Act take effect on
the date of the enactment of this Act and apply to any case
that--
(1) is pending on such date of enactment; or
(2) is commenced on or after such date of enactment.
The SPEAKER pro tempore. The gentleman from Texas (Mr. Smith) and the
[[Page H7390]]
gentleman from New York (Mr. Nadler) each will control 30 minutes.
The Chair recognizes the gentleman from Texas.
General Leave
Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous materials on H.R. 2679, currently
under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise today in support of H.R. 2679, the Veterans'
Memorials, Boy Scouts, Public Seals, and Other Public Expressions of
Religion Protection Act of 2006, which was introduced by our colleague
from Indiana (Mr. Hostettler); and I would like to thank him for his
leadership on this issue.
Mr. Speaker, this legislation was reported out of the House Judiciary
Committee on November 7 by voice vote. Let me describe the unfair
situation that this legislation addresses.
Today, under Federal law, attorneys' fees can be demanded in lawsuits
against States or localities brought in under the Constitution's
Establishment Clause.
These lawsuits could mandate, for example, that veterans' memorials
must be torn down because they happen to have religious symbols on
them; that the Ten Commandments must be removed from public buildings;
and that the Boy Scouts cannot use public property.
The case law under the Establishment clause is so confused that
States and localities know defending themselves in such lawsuits is
simply unpredictable.
In 2005, for example, the Supreme Court issued two rulings on the
same day that contained opposite holdings in cases involving the public
display of the Ten Commandments. In one case, the court found a framed
copy of the Ten Commandments in a courthouse hallway to be an
unconstitutional establishment of religion, but in the other case the
court upheld a Ten Commandments monument on the grounds of the Texas
State Capitol. Not only were these two rulings different, but different
constitutional tests were used in each case.
The threat to States and towns having to pay attorneys' fees in such
cases, should they happen to lose at any level, often leads those
States and localities to give up whatever rights they might have under
the Constitution, even before such cases go to trial.
This bill will prevent the legal extortion that currently makes State
and local governments, and the Federal Government, accede to demands
for the removal of religious imagery when such removal is not even
constitutionally compelled by the Constitution.
The Supreme Court has stated that ``the State may not establish a
religion of secularism in the sense of affirmatively opposing or
showing hostility to religion, thus preferring those who believe in no
religion over those who do believe.''
Contrary to that principle, current litigation rules are hostile to
religion because they allow some groups to coerce States and localities
into removing any reference to religion in public places.
This unfair result is made possible because 42 United States Code,
section 1983, and 42 United States Code, section 1988, allow advocacy
organizations to put the following choice to localities: either do what
we want and remove religious words and imagery from the public square,
or risk a single adverse judgment by a single judge that requires you
to pay tens or hundreds of thousands of dollars in legal fees in a case
you cannot afford to litigate.
Consequently, local governments are being forced to accede to the
demands of those seeking to remove religious words or tear down
symbols, and ban religious people from using the public square, even
when allowing those uses might, in fact, be constitutional.
H.R. 2679 amends 42 U.S.C. so that attorneys' fees could not be
awarded to prevailing parties in Establishment Clause cases. It amends
42 U.S.C. to make clear that while Establishment Clause cases can
continue to be brought against State and local governments, they can be
brought only for injunctive or declaratory relief.
This means that a court can still order that a State official or
local government stop doing whatever was an alleged violation of the
Establishment Clause.
One example of the unfairness this legislation would prevent is a
recent case in which the County of Los Angeles was forced to remove a
tiny cross from its official county seal that symbolized the founding
of that city by missionaries. This tiny cross was on the seal for 47
years. This is costing the county $1 million, as it entailed changing
the seal on some 90,000 uniforms, 6,000 buildings, and 12,000 county
vehicles.
In Redlands, California, the city council reluctantly gave in to
demands and agreed to change their official seal. But Redlands did not
have the municipal funds to replace the seal. As reported by the
Sacramento Bee, ``rather than face the likelihood of costly
litigation,'' Redlands residents now ``see blue tape covering the cross
on city trucks, while some firefighters have taken electric drills to
`obliterate it' from their badges.''
Mr. Speaker, this is just the kind of injustice this bill seeks to
correct.
Finally, Mr. Speaker, H.R. 2679 is clearly constitutional. It has a
secular legislative purpose, namely that of preventing the use of the
legal system in a manner that extorts money from State and local
governments, and the Federal Government, and inhibits their
constitutional actions. In doing so, this bill restores the original
purpose of 42 U.S.C., which was to protect individual rights, not
Establishment Clause claims.
H.R. 2679 also does not have the primary effect of either promoting
or inhibiting religion. Rather, it simply removes the burdensome
effects of the current legal rules.
So, again, Mr. Speaker, this bill is constitutional and does not
prevent lawsuits from being filed.
I urge my colleagues to join me in supporting this legislation and
protect the religious rights of all citizens.
Mr. Speaker, I reserve the balance of my time.
Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the gentleman from Texas has a complaint, but his
complaint is not against the American Civil Liberties Union, nor is it
against section 1983 of the Code. His complaint is against the first
amendment of the United States Constitution.
The authors of this bill do not like the protection the courts have
given to plaintiffs who allege that their constitutional rights against
the establishment of religion in the first amendment have been
violated. So he says let us be punitive for winning.
The law says that anyone who brings a lawsuit against the government,
Federal, State or local government, and alleges that that government,
under color of law, is violating their constitutional rights, if that
plaintiff wins, if the court says, and it is not just one judge because
it is appealable up to the Supreme Court, but if the court says, yes,
Mr. Plaintiff, that government official, mayor so and so, police
commissioner so and so, or whatever violated your constitutional
rights, you can get damages if you have, in fact, been damaged,
monetary damages as you can in any civil lawsuit. You can get an
injunction, stop, do not keep doing it, do not keep violating
constitutional rights. And you can apply for attorneys' fees.
That is a very important provision. Because these lawsuits can be
expensive, and if you cannot get attorneys' fees, it is very difficult
to sue, even if you have a very well-established violation of your
constitutional rights, and these attorneys' fees are only if you win
the lawsuit.
So what does his bill come along and say? Only for establishment
cases. We do not like establishment cases. We do not like the
Establishment Clause of the Constitution. Only for Establishment Clause
violations, you cannot get damages if you prove the government has
violated your rights. Only for Establishment Clause cases, you cannot
get attorneys' fees if you prove the government has violated your
rights.
For any other deprivation of rights under law, violation of the free
exercise clause of religion, violation of
[[Page H7391]]
freedom of speech, freedom of press, whatever, you can get damages; you
can get attorneys' fees.
This puts at a disadvantage in enforcing the law one class of people,
religious minorities, basically, people who will sue the government for
violating their rights under the Establishment Clause.
In more than a century, nothing like this has ever been done. We have
always expanded rights under section 1983, our Nation's oldest and most
durable civil rights laws. We have never curtailed them.
Just to be sure, I checked with the Congressional Research Service;
and I place their memorandum to that effect in the Record at this
point.
Congressional Research Service,
July 25, 2006.
To: House Judiciary Committee.
From: Kenneth R. Thomas, Legislative Attorney, American Law
Division.
Subject: Scope of the Proposed Public Expression of Religion
Act of 2005.
The memorandum is in response to your request to examine
the scope of H.R. 2679, the Public Expression of Religion Act
of 2005, which would limit the relief available and the
payment of attorney's fees for cases brought under 42 U.S.C.
Sec. 1983 when the underlying case involves the Establishment
Clause of the First Amendment of the Constitution.
Specifically, you requested an analysis of whether Congress
had previously limited the types of damages available under
1983 as regards particular constitutional provisions. Second,
you requested an analysis as to whether the bill would be
limited to the public expression of religious faith in a
governmental context, or whether this bill would also affect
other Establishment Clause issues.
42 U.S.C. Sec. 1983 addresses a broad array of rights and
privileges protected by the United States Constitution. It
provides that:
``Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory
relief was unavailable. For the purposes of this section, any
Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District
of Columbia.''
The proposed Public Expression of Religion Act of 2005
would appear to limit certain litigants from receiving either
damages or attorneys fees. Specifically, the proposed Act
provides that ``[t]he remedies with respect to a claim under
[42 U.S.C. Sec. 1983] where the deprivation consists of a
violation of a prohibition in the Constitution against the
establishment of religion shall be limited to injunctive
relief.'' The bill also amends 42 U.S.C. 1988(b) to provide
that no attorney's fees shall be awarded with respect to a
claim under 42 U.S.C. Sec. 1983 regarding the Establishment
Clause.
42 U.S.C. Sec. 1983 was first passed in 1871. Although it
has been recodified and relatively recently amended, it has
not been substantially altered since 1871. It does not appear
that it has been amended so as to limit the type of damages
available to litigants who choose to utilize its provisions
regarding particular constitutional issues. Whether such a
limitation is constitutional is beyond the scope of this
memorandum.
The provisions of the proposed Public Expression of
Religion Act of 2005, despite its title, would appear to
include both the public expression of religion under
governmental auspices and a variety of other issues. The
types of cases which the bill would cover would appear to
include, among other things, cases involving financial
assistance to church-related institutions, governmental
encouragement of religion in public schools (prayers, bible
reading), access of religious groups to public property, tax
exemptions of religious property, exemption of religious
organizations from generally applicable laws, Sunday closing
laws, conscientious objectors, regulation of religious
solicitation, religion in governmental observances, and
religious displays on government property.
It is especially ironic because my friends who today are supporting
this bill only yesterday brought forward a bill that would expand the
rights of real estate developers, garbage dumps and adult bookstores
under section 1983. So the rights they would give to adult bookstores,
we would take away from people whose religious freedom rights are
violated. That is, I guess, what has become of the party of Lincoln.
That is their civil rights agenda in 2001.
This bill is aimed at people who have proved in court that the
government has violated their religious liberty protected by the first
amendment. By denying them their normal relief for monetary damages and
the bill to petition for attorneys' fees, we will deny them not just
their day in court, we would also be telling government officials
everywhere that Congress thinks it is okay for them to violate people's
religious liberty with impunity.
It is especially galling after everyone here, well, almost everyone,
has taken a victory lap for reauthorizing the Voting Rights Act, in
which we actually enhanced the attorneys' fees provisions by adding a
right to be awarded the cost of expert witnesses in addition to the
right to be awarded the cost of lawyers.
As the Judiciary Committee stated in its report on the Voting Rights
Act, ``The committee received substantial testimony indicating that
much of the burden associated with either proving or defending a
section 2 vote dilution claim is established by information that only
an expert can prepare. In harmonizing the Voting Rights Act of 1965
with other Federal civil rights laws, the committee also seeks to
ensure that those minority voters who have been victimized by continued
acts of discrimination are made whole.''
But here we want to say that people with minority religious views who
are victimized by government breaking of the Establishment Clause, they
shall not be made whole because we do not like them.
{time} 1445
I would warn my colleagues that starting down this path will only
lead to depriving other unpopular groups of their civil rights
remedies. It wasn't so long ago that attacks on unelected judges and
ACLU lawyers, as we heard a few moments ago, stirring up trouble, was
the common language of the militant segregationists. It is distressing,
and sadly ironic, that today that language is being used to gut the
Nation's oldest and most durable civil rights law.
It is all chillingly reminiscent of the infamous 1963 inauguration
speech of Alabama's Governor George Wallace who said, ``From this day,
from this hour, from this minute we give the word of a race of honor
that we will tolerate their boot in our face no longer, and let those
certain judges put that in their opium pipes of power and smoke it for
what it is worth.'' I think the Governor would feel right at home in
this House today.
Or consider the notorious ``Southern Manifesto'' signed by Members of
both houses in defiance of the Supreme Court's school desegregation
decision several decades ago:
``We regard the decisions of the Supreme Court in the school cases as
a clear abuse of judicial power. It climaxes a trend in the Federal
judiciary undertaking to legislate, in derogation of the authority of
Congress, and to encroach upon the reserved rights of the States and
the people.''
Does any of this sound familiar? I would observe that abuses of
judicial power are in the eyes of the beholder.
This is not to suggest that any Members of this House are
segregationists. Far from it. I only recall the overheated rhetoric of
a half century ago to urge Members to take care with their words.
Unpopular minorities and decisions defending the rights of unpopular
minorities against the will of the majority have always inflamed
passions. People have always questioned our system of checks and
balances, and especially the role of the independent judiciary.
Recourse to an independent judiciary is a bulwark of our liberties.
We recognize this by allowing people to go to court and sue the
government and force the government to respect their rights. We
recognize this by allowing people victimized by the government to
receive damage awards when the government has done damage. We recognize
this by ensuring, just as we have done with the Voting Rights Act, that
people who can prove their rights have been violated can get attorneys
fees paid so that people with valid claims will be able to afford to go
to court to vindicate those claims.
I would remind my friends that this legislation is not limited to
religious symbols in public places. This legislation applies to any
violation of the establishment clause. This would include forced
prayer. If government forcing your child to say a prayer of another
faith is not the establishment of religion, then the phrase has no
meaning. If government at some locality decided
[[Page H7392]]
that that locality was Hindu or Muslim or Wicca, or whatever, pick
another unpopular or less popular religion, and all children in school
must start the day by saying the profession of faith for that religion,
you could go to court. It is a violation of the establishment clause.
But under this, you couldn't get damages. You couldn't get attorneys
fees. You would have to bear the burden of that lawsuit by yourself.
I want to lay to rest right now the red herring, the lie, that was
put into this bill when its title was changed from the Public
Expression of Religion Act to the Veterans' Memorials, Boy Scouts,
Public Seals, and other Public Expressions of Religion Protection Act
of 2006. I know that many sincere people have been misled into
believing the ACLU, for example, wants to use section 1983 to force the
removal of religious symbols from the individual gravestones of
thousands of veterans across the Nation and around the world, hence the
new title, hence the citation of these specific instances in this bill.
We received testimony from the American Legion to this effect and
Members have received a great deal of mail on the subject because
people are spreading misinformation. This assertion is a myth. If you
are voting for this bill because you are concerned about national
cemeteries, don't bother. Neither the ACLU nor anyone else has ever
brought such a lawsuit.
As a matter of fact, I have a letter here from the ACLU taking the
opposite position: that individual veterans have a first amendment
right to have a religious symbol of their or their family's choice on
their gravestones.
American Civil
Liberties Union,
Washington, DC, July 25, 2006.
Re the Public Expression of Religion Act (H.R. 2679).
House of Representatives,
Committee on the Judiciary,
Washington, DC.
Dear Representative, On behalf of the American Civil
Liberties Union (ACLU), and its hundreds of thousands of
members, activists, and fifty-three affiliates nationwide, we
urge you to oppose H.R. 2679, the ``Public Expression of
Religion Act of 2005.'' This bill would bar damages and
awards of attorneys' fees to prevailing parties asserting
their fundamental constitutional rights in cases brought
under the Establishment Clause of the First Amendment to the
U.S. Constitution. H.R. 2679 would limit the longstanding
remedies available in cases brought under the Establishment
Clause under 42 U.S.C. 1988, which provides for attorneys'
fees and costs in all successful cases involving
constitutional and civil rights violations.
H.R. 2679 Shuts the Courthouse Doors
If this bill were to become law, Congress would, for the
first time, single out one area protected by the Bill of
Rights and prevent its full enforcement. The only remedy
available to plaintiffs bringing Establishment Clause
lawsuits would be injunctive relief. This prohibition would
apply even to cases involving illegal religious coercion of
public school students or blatant discrimination against
particular religions.
Congress has determined that attorneys' fee awards in civil
rights and constitutional cases, including Establishment
Clause cases, are necessary to help prevailing parties
vindicate their civil rights, and to enable vigorous
enforcement of these protections. The Senate Judiciary
Committee has found these fees to be ``an integral part of
the remedies necessary to obtain . . . compliance.'' The
Senate emphasized that ``[i]f the cost of private enforcement
actions becomes too great, there will be no private
enforcement. If our civil rights laws are not to become mere
hollow pronouncements which the average citizen cannot
enforce, we must maintain the traditionally effective remedy
of fee shifting in these cases.
Unfortunately, H.R. 2679 would turn the Establishment
Clause into a hollow pronouncement. Indeed, the very purpose
of this bill is to make it more difficult for citizens to
challenge violations of the Establishment Clause. It would
require plaintiffs who have successfully proven that the
government has violated their constitutional rights to pay
their legal fees--often totaling tens, if not hundreds, of
thousands of dollars. Few citizens can afford to do so, but
more importantly, citizens should not be required to do so
where there is a finding that our government has engaged in
unconstitutional behavior.
The elimination of attorneys' fees for Establishment Clause
cases would deter attorneys from taking cases in which the
government has violated the Constitution; thereby leaving
injured parties without representation and insulating serious
constitutional violations from judicial review. This
effectively leaves religious minorities unable to obtain
counsel in pursuit of their First Amendment rights under the
Establishment Clause.
H.R. 2679 Denies Just Compensation
Despite proponents' assertions to the contrary, attorneys'
fees are not awarded in Establishment Clause cases as a
punitive measure. Rather, as in any case where the government
violates its citizens' civil or constitutional rights, the
award of attorneys' fees is reasonable compensation for the
expenses of litigation awarded at the discretion of the
court. After intensive fact-finding, Congress determined that
these fees ``are adequate to attract competent counsel, but .
. . do not produce windfalls to attorneys.'' H.R. 2679 is
contrary to good public policy--it reduces enforcement of
constitutional rights; it has a chilling effect on those who
have been harmed by the government; and it prevents attorneys
from acting in the public's good.
The award of fees in Establishment Clause cases is not a
means for attorneys to receive unjust windfalls--it is
designed to assist those whose government has failed them.
H.R. 2679 Favors Enforcement of the Free Exercise Clause Over the
Establishment Clause
Among the greatest religious protections granted to
American citizens are the Establishment Clause and the Free
Exercise Clause. The right to practice religion, or no
religion at all, is among the most fundamental of the
freedoms guaranteed by the Bill of Rights. Religious liberty
can only truly flourish when a government protects the Free
Exercise of religion while prohibiting government-sponsored
endorsement, coercion and funding of religion. H.R. 2679
creates an arbitrary congressional policy in favor of the
enforcement of the Free Exercise Clause, while simultaneously
impeding individuals wronged by the government under the
Establishment Clause.
Through the denial of attorneys' fee awards under H.R.
2679, plaintiffs will be able to afford the expense of
litigation only when they are seeking to protect certain
constitutional rights but not others. This bad congressional
policy serves to create a dangerous double standard by
favoring cases brought under the Free Exercise Clause, but
severely restricting cases under the Establishment clause.
Proponents of this bill have been spreading the urban myth
that religious symbols on gravestones at military cemeteries
will be threatened without passage of H.R. 2679. The
supposedly ``threatened'' religious markers on gravestones
has become a red-herring--indeed it is an urban myth--that
has been invoked as a reason for the denial of attorneys'
fees in Establishment Clause cases. It should be noted--in
light of the wildly inaccurate statements that have
repeatedly been made--that religious symbols on soldiers'
grave markers in military cemeteries (including Arlington
National Cemetery) are entirely constitutional.
Religious symbols on personal gravestones are vastly
different from government-sponsored religious symbols or
sectarian religious symbols on government-owned property.
Gravestones and the symbols placed upon them are the choice
of individual service members and their families. The ACLU
would in fact vigorously defend the first amendment rights of
all veteran Americans and service members to display the
religious symbol of their choosing on their gravestone.
If the Constitution is to be meaningful, every American
should have equal access to the federal courts to vindicate
his or her fundamental constitutional rights. The ability to
recover attorneys' fees in successful cases is an essential
component of the enforcement of these rights, as Congress has
long recognized. The bill is a direct attack on the religious
freedoms of individuals, as it effectively shuts the door for
redress for all suits involving the Establishment Clause. We
urge members of Congress to oppose H.R. 2679.
If you have any questions, please contact Terri Schroeder,
Senior Lobbyist.
Sincerely,
Caroline Fredrickson,
Director.
Terri Ann Schroeder
Senior Lobbyist.
Mr. Speaker, it is an election year, and the months leading up to
elections have long been known as the ``silly season.'' We all
understand that. But get an earmark for a bridge to nowhere or
something, and leave the first amendment and our civil rights out of
it.
Mr. Speaker, I reserve the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, I yield 6 minutes to the gentleman
from Indiana (Mr. Hostettler), who is the author of this legislation.
(Mr. HOSTETTLER asked and was given permission to revise and extend
his remarks.)
Mr. HOSTETTLER. I thank the gentleman from Texas for yielding.
Mr. Speaker, I rise in support of H.R. 2679, the Public Expression of
Religion Act. This legislation would allow establishment clause cases
to go to court unfettered by fear or coercion on the part of the
defendant. And as an aside, I want to thank the gentleman from New York
for clarifying a position earlier made by that side of the aisle when
it was suggested by the gentleman from Texas and the gentleman from
Massachusetts that somehow this bill would actually affect free
exercise cases. But as the gentleman from New
[[Page H7393]]
York pointed out, this bill does not address free exercise cases.
The Public Expression of Religion Act would amend 42 U.S.C. sections
1983 and 1988 to prevent the mere threats of the legal system to
intimidate communities, States, and groups like the American Legion
into relenting without ever darkening the doorsteps of a Federal
courthouse.
I first introduced the Public Expression of Religion Act in the 105th
Congress after I realized that the mention of attorneys fees in these
kinds of cases were jeopardizing our constituents' constitutional
rights. An example of this was in 1993, when the Indiana Civil
Liberties Union, which is affiliated with the American Civil Liberties
Union, mailed a letter to all the public educators in the State of
Indiana. In this letter, the ICLU informs the educators that should
they support a prayer at graduation, the ICLU will sue both the school
and any individuals who approve the graduation prayer. The letter
plainly states the ICLU will win and that whoever is sued will have to
pay not only their attorneys fees but the ICLU fees as well.
These threats to teachers, who are highly unlikely to be able to pay
their own attorneys fees let alone the exorbitant attorneys fees of the
ICLU, make it very likely educators would capitulate to the ICLU before
even checking to make sure the ICLU has their facts right.
What makes this even more difficult for States and localities is that
the jurisprudence in establishment clause cases is about as clear as
mud. Different districts and even the Supreme Court itself flipflops on
issues. For instance, last year, the Supreme Court handed down two Ten
Commandments case decisions on the same day with a different decision
in each.
In the Van Orden case, the court applied the Marsh test of historical
perspective to determine the Ten Commandments in a public venue was
constitutional in Texas; while the McCreary case used the Lemon test to
determine the Ten Commandments in a public venue in Kentucky was
unconstitutional. Clear as mud.
Our constituents who are being threatened with those lawsuits know
even if they are right they will still have to pay their own attorneys
fees to take the gamble the court will muddle through the
jurisprudential mess of the establishment clause and come out on their
side. If the court chooses to use the Marsh test, they might win. If
the court chooses to use the Lemon test, they might lose. It is a toss-
up.
Unfortunately, many of our constituents do not have the means by
which to set aside a small fortune each year to defend their
constitutional rights against intimidating liberal organizations. Nor
do they look kindly on the fact that their constitutional rights have
become subject to the whims of unelected judges; but, Mr. Speaker, that
issue is for another legislative day. Regardless, many do not wish to
roll the dice to have their day in court, so they capitulate to these
organizations and their often questionable pronouncement of what is or
is not constitutional.
A majority of the cases the ACLU and its affiliates represent are
facilitated by staff attorneys or through pro bono work, so any
attorneys fees awarded to them is icing on the cake. It is a win-win
situation for them right now. On the other hand, States and localities
have limited resources with which to fight court battles, thus another
reason they are capitulating before they even go to court.
This was the case recently with the Los Angeles County seal. The ACLU
threatened to sue L.A. County if they did not remove the tiny cross
from the county seal. The cross symbolized Los Angeles' birth as a
Spanish mission town. The county was forced to choose between paying to
change the seal or paying to go to court and possibly pay exorbitant
attorneys fees to the ACLU.
In the end, the L.A. county supervisors, in a 3-2 vote, decided to
ignore the will of the people of Los Angeles County and pay to change
the seal instead of paying to go to court. They had been advised by
their attorneys that if they lost in court they would not only have to
change the seal but they would additionally have to pay attorneys fees
of the ACLU.
Mr. Speaker, I believe it is time to bring this extortion to an end.
The Public Expression of Religion Act would make sure these cases are
tried on their merits and are not merely used to extort behavior via
settlements outside our judicial system.
As the ICLU said at the end of their letter: ``The ICLU does not
enjoy litigation. We, and you, have better things to do with our
time.'' I for one would like to make sure the ICLU has to think long
and hard before litigating, and this would be the case if they knew
they would actually have to convince a court of their twisted view of
the Constitution. I urge my colleagues to support the legislation.
Mr. NADLER. Mr. Speaker, I now yield 4 minutes to the distinguished
gentleman from Maryland (Mr. Van Hollen).
Mr. VAN HOLLEN. Mr. Speaker, I thank my colleague from New York. This
bill, which is presented to the Congress under the banner of a so-
called American values agenda, turns American values on their head. It
is an example of false advertising at its very worst, and it forgets
the lessons of American history.
This great country of ours was founded largely on the principle of
religious liberty. Many of our earlier settlers to this country came to
our shores to escape religious persecution from their mother countries.
They didn't want the Church of England or any other government telling
them how they should worship God, and they sought to escape a state-
imposed religion, to escape the establishment of a state-sponsored
religion. They wanted to practice religion according to the dictates of
their own conscience, not the dictates of the state. And that is why
the first amendment to the United States Constitution gives each
individual the right of religious liberty and why it bars the state
from imposing and establishing a state religion.
If this Congress and this government now seeks to impose certain
religious faiths upon an individual, that individual can invoke the
protections of the United States Constitution. Now, I would think all
of us, all of us in this body, would agree that an individual should
not have to pay to enjoy the protections of the United States
Constitution. Those rights are given to each of us as American citizens
under the Constitution, and we shouldn't have to pay when the state,
whether it is a local government, a State government, or the Federal
Government, violates those rights under the establishment clause or
anything else. Yet that is exactly what this bill does.
Under current law, if the court finds a statute is violating your
constitutional rights under the establishment clause, the State has to
pay the cost that you incurred in protecting your rights against the
State. If your government deprives you of your constitutionally
guaranteed rights and liberties, the government should pay, not you,
the individual citizen. This is a question of the force and muscle of
the government and the States against an individual in trying to
deprive an individual of his or her constitutionally protected right.
I would ask, since when is it an American value that you have to pay
to enjoy the protections of our constitution? Since when is an American
value that the government can trample on your religious liberty,
deprive you of your rights, and then, when a court of law, whether the
Supreme Court, a Federal Court, or any other court, has found indeed
that the government did deprive you of your constitutional rights and
you were right as an individual and the government was wrong, that you
have to pay and not the government?
That is simply a way, when you think about it, that the government
can discourage individual citizens from enforcing their constitutional
rights. They have to take on the government. They have to take on
people with lots of resources. Yet, at the end of the day, even when
they win, and the court agrees that their constitutional rights have
been violated, it is the citizen that has to pay to enjoy those
protections, not the government.
This debate is about American values, and if you want to protect
those American values and you want to protect the Constitution of the
United States, you should vote ``no'' on this bill.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentlewoman
[[Page H7394]]
from Florida (Ms. Ginny Brown-Waite).
Ms. GINNY BROWN-WAITE of Florida. Mr. Speaker, I thank the gentleman
for yielding. Mr. Speaker, I rise today in very strong support of H.R.
2679, the Public Expression of Religion Protection Act. With this bill,
we will close a loophole that has allowed liberal groups like the ACLU
to prey on taxpayers for far too long.
Originally, Congress sought to protect underprivileged civil rights
applicants by allowing them to collect attorneys fees if they won their
suit.
{time} 1500
Today, groups like ACLU scour the country looking to sue cities and
States with any kind of religious display, regardless of how popular
those religious displays are in those communities. If they sue and win,
States and localities not only have to remove or remodel the historic
items, but they also must pay the group's attorneys fees. In this
backdoor way, the ACLU can collect taxpayer money to fuel even more
lawsuits.
Tragically, citizens' precious symbols and monuments are being eroded
with their own tax dollars. State seals in existence for hundreds of
years have had to be redrawn. Many cities will not even fight in court
for fear of paying costly attorneys fees, and some of them just
capitulate at the first sign of a lawsuit.
We should not allow these liberal groups to fuel their agendas by
exploiting hardworking Americans. The bill before us today removes that
attorney fee provision from cases involving establishment of religion.
This bill will stop the current taxpayer extortion once and for all.
I urge my colleagues to support this bill.
Mr. NADLER. Mr. Speaker, I yield 4 minutes to the distinguished
gentleman from Virginia (Mr. Scott).
Mr. SCOTT of Virginia. Mr. Speaker, I thank the gentleman for
yielding.
Mr. Speaker, any time you name a bill using the words ``veterans
memorials'' and ``religious protection,'' you can assume that we are
just about to cut veterans health care.
Now, if we are going to deal with veterans issues, I would hope that
we would fully fund the veterans health care VA expenditures rather
than cut them. We ought to do more for veterans pensions, we ought to
do more for veterans disability, rather than naming a bill which
undermines the freedoms they actually fought for.
Thirty years ago, Mr. Speaker, Congress recognized the importance of
passing a law to ensure that those who suffer violations of their
constitutional rights or unconstitutional discrimination will be able
to obtain legal representation to vindicate their civil rights; but
only in cases where they actually win the case will they be able to get
help with their attorneys fees.
This bill would rescind the ability of victims whose rights under
part of the first amendment have been found to have been violated from
receiving reimbursement for attorneys fees and costs. This means that
only the most fortunate in our society will be able to enforce their
civil rights and seek redress when those rights are violated. It means
that the less fortunate can only get those rights if they can raise
enough money to enforce them. When the cost of enforcement becomes too
great, there will not be any private enforcement and then our
constitutional rights will be reduced to hollow pronouncements for the
average citizens because only the wealthy will be able to seek
enforcement.
But this bill goes actually further, because the bill will
specifically deprive victims whose rights have been found to be
violated by a court and those whose rights continue to be violated
after the court has ordered, from being able to seek remedies other
than those provided in the bill, namely injunctive or declaratory
relief.
Now, if a school system were to decide to ignore the Constitution and
require school children to recite a state-sponsored Protestant prayer
in some areas, or a Mormon prayer in others, what would happen? Or if a
State or locality were to just declare itself to have a particular
established religion, what would happen under the bill? Nothing.
Nothing would happen, until such time as you have a wealthy individual
willing to fund a lawsuit to try to vindicate the obvious violation of
their constitutional rights.
In all other classrooms and all other localities where you don't have
a wealthy individual to fund the lawsuit, nothing will happen, because
the perpetrators of the violation will know that there is no sanction.
Nothing can happen. The only thing that can happen is you just sit
around and wait for a court to declare that you are in violation.
Nothing else can happen. And even after that finding occurs, nothing
will happen until the court actually starts enforcing the court order,
and you will need additional attorneys fees to go in and get that
order.
This just invites violations of the law because we know there is no
sanction for violating the first amendment. We know that the
establishment clause, part of the first amendment of the Bill of
Rights, will be the only part of the Constitution without any remedy to
effectively enforce the provisions of that Constitution. That is why
virtually every civil rights group, religious organization and legal
organization opposes the bill; and, Mr. Speaker, I hope we oppose the
bill too.
Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, some opponents of this legislation are arguing that
attorneys fees are needed and that establishment clause lawsuits will
be deterred unless the people bringing these lawsuits have their
attorneys fees paid. This is simply not true.
First, we are aware of no organization that has said they will not
bring a good cause case under the establishment clause if they can't be
awarded attorneys fees. In fact, the ACLU has said just the opposite.
Peter Eliasberg, a staff attorney for the ACLU of Southern California,
has said recently, ``Money has never been a deciding factor when we
take cases.'' When asked specifically what the ACLU would do if
attorneys fees in establishment clause cases were prohibited, he said,
``It wouldn't stop us from bringing lawsuits.''
Second, this section of the U.S. Code H.R. 2676 amends was never
intended to apply to establishment clause cases. 42 U.S.C. 1988, which
allows attorneys fees in cases brought under 42 U.S.C. 1983, was
intended only to allow the award of attorneys fees under civil rights
laws enacted by Congress after 1866.
The history of 42 U.S.C. is as follows: in Alaska Pipeline Service
Company v. Wilderness Society, the Supreme Court held that Federal
courts do not have inherent power to award prevailing party attorneys
fees to remedy government violations of the law. The Court observed
that the American rule, that is, the rule that each party bears its own
attorneys fees ``is deeply rooted in our history and in congressional
policy.''
Mr. Speaker, I want to make one more point, and that is to emphasize
that under H.R. 2679, establishment clause cases can in fact continue
to be brought against State and local governments for injunctive or
declaratory relief, which means that the court can still order that a
State official or local government stop doing whatever it was in
alleged violation of the establishment clause
Mr. NADLER. Mr. Speaker, I reserve my time.
Mr. SMITH of Texas. Mr. Speaker, I yield 5 minutes to the gentleman
from Indiana (Mr. Hostettler).
Mr. HOSTETTLER. Mr. Speaker, in response to a discussion earlier
about the notion of ``false advertising'' in relationship to this piece
of legislation, I have developed some fairly thick skin over the last
several years in this job, but I think that I should draw the line
today with regard to suggesting that people such as the American Legion
would engage in false advertising in their support of the Public
Expression of Religion Act.
In a booklet published by the American Legion entitled ``In the
Footsteps of the Founders,'' the American Legion set out a course of
action, a battle plan, if you will, in their desire to ``mobilize
America to urge passage of the Public Expression of Religion Act, or
PERA.''
They close in their mobilization in this regard: ``There simply is no
reasonable basis to support the profiteering and attorney fees awards
ordered by judges in these cases,'' meaning establishment clause cases.
``The very threat of such fees has made elected bodies, large and
small, surrender to
[[Page H7395]]
the ACLU's demands to secularly cleanse the public square.''
They go further to say this: ``The American Legion does not intend to
surrender to the ACLU or anyone else in defense of veterans memorials,
the Boy Scouts or the public display of American religious history and
heritage. We are involved because we are veterans who served the Nation
when our country called. But most of all, we are involved because we
are Americans. `For God and country' is our credo, and both are
imperiled today. In order to win the battle, to safeguard and transmit
to posterity the America the Founding Fathers created, it is clear what
we must do. We must walk in the footsteps of the Founders. Being
involved in making the Public Expression of Religion Act the law of the
land is one small but extremely important step that must be taken. This
is a crusade we can, we should, we must win, if we are to walk in the
footsteps of the Founders. We Americans of this generation can do no
less.''
So, Mr. Speaker, those are the words of the American Legion
themselves that say that today is the day that the House of
Representatives must take a stand and must stand in the footsteps of
our Founders.
We have heard a lot of discussion today about what this bill would
do, that it would essentially eliminate the bringing of establishment
clause cases to court. And as the gentleman from Texas has pointed out,
even the liberal organizations that some would suggest their funds
would be cut off have said this will do nothing to stop them in their
pursuit to remove every vestige of religious heritage from our public
places. So we should not take that argument at its face, because it is
simply not true.
In fact, this bill allows the continuing allowance of injunctive
relief, meaning if an individual wants a particular activity to stop or
a particular display to be removed, the court can in fact still say
that that display must be removed or that that activity must cease.
Nothing in this bill eliminates injunctive relief or the ability to
enjoin a State or local government to stop violating the establishment
clause.
Mr. Speaker, in conclusion, there has likewise been a lot of
discussion of the fact that in 1976 the Attorneys Fees Award Act began
this march in civil rights with regard to establishment clause cases.
That is simply not the fact. In 1962, in Engel v. Vitale, the Supreme
Court held, 14 years before the Civil Rights Attorneys Award Act was
put in place, the Supreme Court held that prayer in public schools in
Engel v. Vitale was unconstitutional. They held a year later in
Abington v. Shemp that Bible reading in public schools was
unconstitutional as well.
To suggest that the removal of attorneys fees would stop the groups
from bringing these cases to court is simply not borne out by history
nor by their own words, and so I ask my colleagues to support the
Public Expression of Religion Act.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman
from California (Mr. Bilbray).
Mr. BILBRAY. Mr. Speaker, I stand today in support of H.R. 2679. Let
me just say as a Representative from San Diego County, we have had a
situation that I think both sides of the aisle would say was absolutely
absurd, where there was a movement to destroy a war memorial on Mount
Soledad, and the justification was because that war memorial happened
to have been a religious symbol, a cross. One group, or a small
plaintiff, not only was pushing for the destruction of the war
memorial, but actually got the fees paid to gain profiteering from the
destruction of this war memorial.
Now, you may say there must be a logical reason, it must be
reasonable, there must have been some good reason to tear down this war
memorial. Mr. Speaker, let me remind you that this body had a chance to
vote on exactly the same issue, and this body voted 349 to preserve the
war memorial, with 74 voting to destroy it. I think that it is quite
clear that this body has said that the preservation of certain
religious artifacts did not justify the profiteering by those who would
want to destroy it.
I strongly ask us to look at this bill and just think about this:
this profiteering not only affects the agencies or the people that have
to pay out, like the city of San Diego, but that money could have gone
to services throughout the community which proportionately help those
needy, those poor and those who need it the most.
{time} 1515
So, so much of this profiteering is being made at the expense of
those who people on both sides of the aisle say do not get enough
resources. I just think it is time that we tell the trial lawyers and
we tell those who are profiteering from trying to destroy our religious
heritage that we are no longer going to allow them to walk away from
the courts with bags of the people's money and individuals' resources
that can be used in better locations.
Mr. NADLER. I now recognize the gentleman from Virginia for a
unanimous consent request.
Mr. SCOTT of Virginia. Mr. Speaker, I ask unanimous consent that
letters from over a dozen organizations in opposition to this bill be
entered into the Record to the extent that some of them have not been
entered in the Record so far.
The SPEAKER pro tempore (Mr. Rehberg). Is there objection to the
request of the gentleman from Virginia?
There was no objection.
African American Ministers
in Action,
Washington, DC, September 26, 2006.
House of Representatives,
Washington, DC.
Dear Representative: As pastors and leaders of
predominately African American congregations across the
country, we are writing urging you to oppose passage of H.R.
2679, the ``Public Expression of Religion Act of 2005.''
Where would our nation be on the long march to ending
segregation, providing equal education to all, ensuring free
speech, enfranchising minorities and women to vote, and a
host of other civil rights and civil liberties issues had
damages and attorney's fees remedies been denied on those
journeys?
This legislation represents an attack on the most
fundamental enforcement tools available to people whose
religious liberty rights have been violated by singling out
those who seek to enforce their constitutional rights under
the Establishment Clause of the First Amendment. This is a
blatant attack on the religious freedoms of all people of
faith. Religious expression is not threatened by the
enforcement of the Establishment Clause, but is protected by
it. The Establishment Clause promotes religious freedom for
all by protecting against government sponsorship of religion.
Congress established enforcement remedies under Sec. 1983
more than 100 years ago and, according to the Congressional
Research Service, Congress has never limited or eliminated
these remedies, let alone deny them to people seeking
judicial enforcement of particular constitutional rights. As
pastors, we strongly believe that H.R. 2679 is a deliberate
attempt to roll back the clock on the protection of our
religious freedoms and the protections we have against those
who would attempt to force upon us their own religious
ideology.
Should Congress adopt this legislation, the precedent would
be set for future denials of these remedies for other
constitutionally protected civil rights and liberties. While
some claim this is merely technical, damages and the awarding
of attorney's fees are critical ingredients necessary to
ensure the proper representation in court and redress for
constitutional violations. More importantly, they are
critical for the protection of our civil rights and civil
liberties serving as a disincentive for engaging in such
violations.
Justice can be denied in many ways, and denying damages and
attorney's fees to those seeking to enforce their
constitutional rights will be tantamount to barring the
courthouse door and any possibility of vindication of the
rights we hold sacred. We urge you to oppose H.R. 2679.
Sincerely,
Rev. Timothy McDonald,
Chair.
Rev. Robert Shine,
Co-Chair.
____
Association of Trial
Lawyers of America,
Washington, DC, July 25, 2006.
Dear House Judiciary Committee Member: On behalf of the
Civil Rights Section of the Association of Trial Lawyers of
America, we strongly urge you to vote against H.R. 2679,
``Public Expression of Religion Act of 2005.'' This bill
strikes a serious blow against the religious liberties
protected under the Establishment Clause of the U.S.
Constitution and it sets a precedent for the erosion of other
valued constitutional rights.
H.R. 2679 unfairly strips one set of plaintiffs--plaintiffs
that bring claims of an Establishment Clause violation--of
the important and longstanding civil remedies provided for
under Sections 1979 and 722(b) of the Revised Statutes of the
United States (42 U.S.C. 1983; 42 U.S.C. 1988(b)). As a
result, the bill not only leaves religious minorities without
a real means of protecting their constitutional rights, but
also encourages state and local sponsored religious
activities for the majority without an opportunity for
adequate redress, and fosters the suppression of
[[Page H7396]]
religious liberty for all others. At the core of our
Democracy is the principle of religious freedom (i.e.,
separation of church and state) and the fact that the
Establishment Clause forbids the government from forcing a
single religious point of view on all Americans. Under the
proposed legislation, however, that constitutional mandate
and the foundation of our system of government are
eviscerated, and religious minorities pay the price.
The current remedial scheme under H.R. 2679 of ``limited to
injunctive relief'' simply does not work. There are countless
instances when injunctive relief would not adequately remedy
the harm one suffers when a state-actor imposes a religious
point of view on a community. One obvious example is forced
prayer in school. Once the prayer is read and an individual
is harmed, there is nothing injunctive relief can do to
redress that harm. In addition, the current draft of the bill
does not afford additional protections to a plaintiff if the
defendant state-actor breaches a court-imposed injunction.
Thus, a state-actor is free from consequence if it does
nothing to fulfill the injunctive relief granted and a
plaintiff's harm is left without a remedy.
Not only would the remedial scheme under H.R. 2679
inadequately redress a victim's harm, but the effect of it
will deter individuals from bringing causes of action for
Establishment Clause violations. The proposed legislation
does not permit a plaintiff to be awarded attorney's fees,
even if he seeks the only civil remedy available--injunctive
relief--and is successful. It is expensive to bring a civil
action against the government, so if a victim of an
Establishment Clause violation is stripped of the fee-
shifting provision under Section 1988(b) it is unlikely
that he will even bring a claim in the first place.
Moreover, the whole purpose of including a fee-shifting
provision under Section 1988(b) is to provide victims with
limited means an opportunity to have their day in court
and protect their constitutional rights against a
defendant with limitless resources.
Finally, we ask that you vote against H.R. 2679, because it
is a dangerous precedent. The proposed legislation would set
the stage for future limitations on the remedies available
for civil rights actions under Section 1983. If today we cite
certain factors to distinguish the constitutional protections
afforded under the Establishment Clause from other
constitutional rights, it is just a matter of time before
another group claims that one of the remaining constitutional
rights is somehow distinguishable and proposes to subject it
to limitation. The bottom line is that Section 1983 is the
sole mechanism by which a citizen can protect his
constitutional rights against unlawful state-action, thus it
is imperative that we avoid any legislation that seeks to
curtail the extent and potency of the civil actions provided
for under that statute.
We strongly urge you to protect the constitutional rights
of religious minorities and all Americans: oppose H.R. 2679.
Very Truly Yours,
Matthew Dietz,
Civil Rights Section Chair, 2006-2007.
Susan Ann Silverstein,
Civil Rights Section Chair, 2005-2006.
____
The American Jewish Committee, Office of Government and
International Affairs,
Washington, DC, September 15, 2006.
Dear Representative: On behalf of the American Jewish
Committee (AJC), the nation's oldest human relations
organization with over 150,000 members and supporters
represented by 32 regional offices, I write to express our
strong opposition to the Public Expression of Religion Act of
2005 (H.R. 2679).
H.R. 2679 would deter citizens with legitimate grievances
from defending their most basic civil rights in court by
limiting long-standing remedies available under 42 U.S.C.
1988. Among other things, H.R. 2679 would bar judges from
ordering state or local governments to reimburse the
attorney's fees and monetary damages of plaintiffs whose
Establishment Clause rights have been proven to be violated,
and would make injunctive and declarative relief the only
remedies available in such cases.
Access to the federal courts is fundamental to the ability
of Americans to vindicate their constitutional rights. With
legal fees often totaling as much as hundreds of thousands of
dollars, few victims of religious discrimination can afford
to bear the costs of a lawsuit when the government violates
their constitutional rights. Even blatant instances of
coerced prayer in a public school or other religious
discrimination will seldom be challenged in court if a single
citizen must face the legal resources of a city.
Proponents of H.R. 2679 argue that some municipalities
currently settle out-of-court rather than risk paying
attorney's fees and monetary damages for frivolous lawsuits.
Whatever the merits of this assertion, there is no
constitutional claim that may not occasionally lead to
frivolous lawsuits. Moreover, at the end of the day, the
courts have generally proved adept at filtering out frivolous
claims at an early point in litigation, before substantial
legal costs can be incurred. Balanced against these realities
is the undeniable fact that this bill would deter Americans
with legitimate Establishment Clause grievances from
asserting their rights in court. Further, once claims under
one clause of the First Amendment have been insulated from
meaningful remedy, the entire Bill of Rights is at risk.
The ability to seek appropriate remedies, including damages
and attorney's fees, is crucial if citizens are to be able to
vindicate their constitutional rights in court. Please
protect the longstanding ability of Americans to seek
damages, and to recoup costs and fees, when faced with basic
constitutional violations. For the aforementioned reasons, we
strongly oppose H.R. 2679.
Thank you for considering our views on this important
matter.
Respectfully,
Richard T. Foltin,
Legislative Director and Counsel.
____
American Civil Liberties Union,
Washington, DC, September 12, 2006.
House of Representatives,
Washington, DC.
Dear Representative: On behalf of the American Civil
Liberties Union (ACLU), and its hundreds of thousands of
members, activists, and fifty-three affiliates nationwide, we
urge you to oppose H.R. 2679, the ``Public Expression of
Religion Act of 2005.'' This bill was voted out from the
Judiciary Committee on September 2, 2006 and will soon be on
the House floor. H.R. 2679 would limit damages to injunctive
and declaratory relief and bar the award of attorneys' fees
to prevailing parties asserting their fundamental
constitutional rights in cases brought under the
Establishment Clause of the First Amendment to the U.S.
Constitution. This bill would bar damages and awards of
attorneys' fees to prevailing parties asserting their
fundamental constitutional rights in cases brought under the
Establishment Clause of the First Amendment to the U.S.
Constitution H.R. 2679 would limit the longstanding remedies
available in cases brought under the Establishment Clause
under 42 U.S.C. 1988, which provides for attorneys' fees and
costs in all successful cases involving constitutional and
civil rights violations.
H.R. 2679 shuts the courthouse doors. If this bill were to
become law, Congress would, for the first time, single out
one area protected by the Bill of Rights and prevent its full
enforcement. The only remedy available to plaintiffs bringing
Establishment Clause lawsuits would be injunctive relief.
This prohibition would apply even to cases involving illegal
religious coercion of public school students or blatant
discrimination against particular religions.
Congress has determined that attorneys' fee awards in civil
rights and constitutional cases, including Establishment
Clause cases, are necessary to help prevailing parties
vindicate their civil rights, and to enable vigorous
enforcement of these protections. The Senate Judiciary
Committee has found these fees to be ``an integral part of
the remedies necessary to obtain . . . compliance.'' The
Senate emphasized that ``[i]f the cost of private
enforcement actions becomes too great, there will be no
private enforcement. If our civil rights laws are not to
become mere hollow pronouncements which the average
citizen cannot enforce, we must maintain the traditionally
effective remedy of fee shifting in these cases.''
Unfortunately, H.R. 2679 would turn the Establishment
Clause into a hollow pronouncement. Indeed, the very purpose
of this bill is to make it more difficult for citizens to
challenge violations of the Establishment Clause. It would
require plaintiffs who have successfully proven that the
government has violated their constitutional rights to pay
their legal fees--often totaling tens, if not hundreds, of
thousands of dollars. Few citizens can afford to do so, but
more importantly, citizens should not be required to do so
where there is a finding that our government has engaged in
unconstitutional behavior.
The elimination of attorneys' fees for Establishment Clause
cases would deter attorneys from taking cases in which the
government has violated the Constitution; thereby leaving
injured parties without representation and insulating serious
constitutional violations from judicial review. This
effectively leaves religious minorities unable to obtain
counsel in pursuit of their First Amendment rights under the
Establishment Clause.
H.R. 2679 favors enforcement of the Free Exercise Clause
over the Establishment Clause. Among the greatest religious
protections granted to American citizens are the
Establishment Clause and the Free Exercise Clause. The right
to practice religion, or no religion at all, is among the
most fundamental of the freedoms guaranteed by the Bill of
Rights. Religious liberty can only truly flourish when a
government can both equally protect the free exercise of
religion as well as prohibit state-sponsored endorsement and
funding of religion. H.R. 2679 creates an arbitrary
congressional policy in favor of the enforcement of the Free
Exercise Clause, while simultaneously impeding individuals
wronged by the government under the Establishment Clause.
Through the denial of attorneys' fee awards under H.R.
2679, plaintiffs will be unable to afford the expense of
litigation only when they are seeking to protect certain
constitutional rights but not others. This bad congressional
policy serves to create a dangerous double standard by
favoring cases brought under the Free Exercise Clause, but
severely restricting cases under the Establishment clause.
H.R. 2679 denies just compensation. Finally, despite
proponents' assertions to the contrary, attorneys' fees are
not awarded in Establishment Clause cases as a punitive
measure. Rather, as in any case where the government violates
its citizens' civil or
[[Page H7397]]
constitutional rights, the award of attorneys' fees is
reasonable compensation for the expenses of litigation
awarded at the discretion of the court. After intensive fact-
finding, Congress determined that these fees ``are adequate
to attract competent counsel, but . . . do not produce
windfalls to attorneys.'' H.R. 2679 is contrary to good
public policy--it reduces enforcement of constitutional
rights; it has a chilling effect on those who have been
harmed by the government; and it prevents attorneys from
acting in the public's good. The award of fees in
Establishment Clause cases is not a means for attorneys to
receive unjust windfalls--it is designed to assist those
whose government has failed them.
Proponents of this bill have been spreading the urban myth
that religious symbols on gravestones at military cemeteries
will be threatened without passage of H.R. 2679. The
supposedly ``threatened'' religious markers on gravestones
has become a red-herring--indeed it is an urban myth--that
has been invoked as a reason for the denial of attorneys'
fees in Establishment Clause cases. It should be noted--in
light of the wildly inaccurate statements that have
repeatedly been made--that religious symbols on soldiers'
grave markers in military cemeteries (including Arlington
National Cemetery) are entirely constitutional.
Religious symbols on personal gravestones are vastly
different from government-sponsored religious symbols or
sectarian religious symbols on government-owned property.
Gravestones and the symbols placed upon them are the choice
of individual service members and their families. The ACLU
would in fact vigorously defend the first amendment rights of
all veteran Americans and service members to display the
religious symbol of their choosing on their gravestone.
If the Constitution is to be meaningful, every American
should have equal access to the federal courts to vindicate
his or her fundamental constitutional rights. The ability to
recover attorneys' fees in successful cases is an essential
component of the enforcement of these rights, as Congress has
long recognized. The bill is a direct attack on the religious
freedoms of individuals, as it effectively shuts the door for
redress for all suits involving the Establishment Clause. We
urge members of Congress to oppose H.R. 2679.
If you have any questions, please contact Terri Schroeder,
Senior Lobbyist.
Sincerely,
Caroline Fredrickson,
Director.
Terri Ann Schroeder,
Senior Lobbyist.
____
American Humanist Association,
Washington, DC, September 11, 2006.
Dear Representative: The American Humanist Association
strongly urges you to oppose the Public Expression of
Religion Act (H.R. 2679), which would bar courts from
awarding attorney's fees to prevailing parties bringing suit
under the Establishment Clause of the First Amendment. We
urge you to vote against this bill, which would severely
discourage or outlaw litigation over government practices
that violate the First Amendment.
If passed, the Public Expression of Religion Act would
prevent concerned citizens from exercising their
constitutionally protected rights in court. The bill purports
to ``eliminate the chilling effect on the constitutionally
protected expression of religion by State and local officials
that results from the threat that potential litigants may
seek damages and attorney's fees.'' However, these litigants
are only awarded attorney's fees if their claims are found
valid and thus unconstitutional; under current law, the
``frivolous lawsuits'' commonly cited in attempts to reduce
attorney's fees are not funded by taxpayer dollars but rather
are financed by the losing litigants. Further, though
supporters have argued that groups such as the American Civil
Liberties Union have reaped enormous compensation from such
suits, the reality is that the awarding of attorney's fees is
essential to maintaining a fair judicial system; these suits
often involve a substantial amount of time and effort that is
simply not feasible for most attorneys to undertake on a pro
bono basis. The bill would actually create a far more
chilling effect in its restriction of challenges to First
Amendment freedoms.
If the Public Expression of Religion Act passes it will set
a precedent for future restrictions on the ability to gain
attorney's fees and costs for constitutional violations that
are unpopular with any particular political majority at the
moment. The current system does not reimburse attorney's fees
for unsubstantiated cases, and it maintains the impartiality
of our courts by allowing the judiciary to interpret
constitutional concerns as laid out in the Constitution.
Please do not allow the legislature to influence the judicial
process for political gain.
Humanists are particularly concerned about this bill
because it targets religious minorities and nontheists in
their attempts to maintain the separation of church and state
by severely reducing attorney's abilities to represent them
in judicial actions. The threat of lawsuits under the
Establishment Clause does not and never has had a ``stifling
effect'' on religious practices; religion is an integral part
of many Americans' lives, and we Humanists support the
personal expression of religion. What we do not support,
however, is governmentally sanctioned religion that infringes
on our First Amendment rights. The current laws support a
system of checks and balances to ensure that all Americans
have the freedom to express themselves without coercion.
The AHA urges you to maintain every American's right to an
impartial and accessible judicial system and vote no on the
Public Expression of Religion Act.
Sincerely,
Mel Lipman,
AHA President.
____
Protect Religious Liberty and
Oppose H.R. 2679
Americans United
for Separation of Church and State,
Washington, DC, September 12, 2006.
Dear Representative: Americans United for Separation of
Church and State urges you to oppose H.R. 2679 or any other
similar legislation seeking to limit awards of attorney's
fees in Establishment Clause cases. Americans United
represents more than 75,000 individual members throughout the
fifty states and the District of Columbia, as well as
cooperating clergy, houses of worship, and other religious
bodies committed to preserving religious liberty.
Bills such as H.R. 2679 are extreme and unwise proposals
that will do nothing more than deter Americans from seeking
to enforce in the federal courts their fundamental
constitutional rights to worship freely and to make decisions
about religion for themselves and their families, without
interference or coercion from the government. Such ill-
conceived measures will also set a broader precedent for
abolishing court-awarded attorney's fees in other civil-
rights cases, thus undermining the system that Congress
carefully wrought to ensure that those who suffer
unconstitutional discrimination will be able to obtain legal
representation to vindicate their civil rights.
H.R. 2679 would prohibit the federal courts from awarding
reasonable attorney's fees and costs to parties who prevail
in actions brought to enforce their rights under the
Establishment Clause of the First Amendment to the U.S.
Constitution, and it would limit the remedies available to
Establishment Clause plaintiffs to injunctive and declaratory
relief, thus barring federal courts from awarding either
damages or other equitable relief to parties who prevail on
Establishment Clause claims. If passed, the bill would thus,
for the first time since the enactment of the Civil Rights
Attorney's Fees Awards Act of 1976, eliminate an entire
category of civil-rights claims from those for which federal
courts can award attorney's fees and costs, and it would in
many cases deprive plaintiffs of any effective remedy for
substantial constitutional violations.
H.R. 2679 Would Substantially Impair the Ability of Americans to
Enforce Their Religious-Freedom Rights under the Establishment Clause
Congress recognized the importance of the remedy of fee
shifting to the enforcement of civil-rights laws when it
passed the 1976 Civil Rights Attorney's Fees Awards Act, 42
U.S.C. 1988:
Enforcement of the laws depends on governmental action and,
in some cases, on private action through the courts. If the
cost of private enforcement actions becomes too great, there
will be no private enforcement. If our civil rights laws are
not to become mere hollow pronouncements which the average
citizen cannot enforce, we must maintain the traditionally
effective remedy of fee shifting in these cases.
S. Rep. No. 94-1011, at 6 (1976). Indeed, the enactment of
the fee-shifting provision was not an expansion of civil-
rights plaintiffs' rights but instead was merely a
codification of preexisting practice that Congress viewed as
especially important: Responding to an earlier Supreme Court
ruling that courts could no longer award attorney's fees to a
prevailing party unless specifically authorized to do so by
federal statute (see Alyeska Pipeline Serv.v. Wilderness
Soc'y, 421 U.S. 240 (1975)), Congress recognized that the
fee-shifting provision ``creates no startling new remedy--it
only meets the technical requirements that the Supreme Court
has laid down if the Federal courts are to continue the
practice of awarding attorney's fees which had been going on
for years.'' S. Rep. No. 94-1011, at 6. H.R. 2679 would thus
eliminate an important remedy that has been recognized by
statute for three decades and by court practice for far
longer.
This turnabout would have a substantial effect on the
ability of Americans who have suffered violations of their
right to religious freedom to seek redress in the courts
because they will be unable to afford counsel to represent
them. Indeed, the Act would make it difficult for victims of
Establishment Clause violations even to obtain representation
from lawyers who might otherwise be willing to represent them
pro bono because those lawyers would no longer be able to
recoup their actual, out-of-pocket expenses--which can often
total tens or even hundreds of thousands of dollars.
Although the bill's sponsors claim that the Act would
``eliminate the chilling effect on the constitutionally
protected expression of religion by State and local
officials,'' few, if any, Establishment Clause plaintiffs
seek to challenge personal religious expression by
governmental officials. Rather, most Establishment Clause
plaintiffs simply seek to ensure that government does not
coerce them or their children to participate in religious
activities that conflict with their own sincerely held
beliefs.
[[Page H7398]]
Many plaintiffs are like the parents in Dover,
Pennsylvania, who courageously challenged a decision by their
school board to require their ninth-grade students to listen
in a biology class to a statement by school administrators
disparaging the scientific theory of evolution and
encouraging them to accept ``intelligent design,'' a
religious view of the origins of life. As one of these
plaintiffs, Steven Stough, said, ``I have joined this lawsuit
because I believe that religious education is a personal
matter whose instructional component is best reserved for
home or at a church of one's choice. It is my responsibility
for the direction of my daughter's religious instruction not
the public high school.''
But without the availability of attorney's fees, parents
like Mr. Stough would not be able to afford the cost of
hiring a lawyer: The court in the Dover case found that the
plaintiffs were entitled to a reasonable fee award, of which
more than $250,000 represented the plaintiffs' attorneys'
actual, out-of-pocket expenses to bring the case. Had H.R.
2679 been the law of the land, the parents of Dover,
Pennsylvania, might well never have been able to vindicate
their right to direct the religious upbringing of their
children without interference by the local school board, for
they simply could not have afforded the expenses for the
case, much less any attorney's fees, for litigation that
required the full-time commitment of a half dozen lawyers for
more than a year.
The problem is far more serious in most other cases.
Although the Dover plaintiffs were represented pro bono by
institutional civil-rights litigators (including Americans
United) and a large law firm, many Establishment Clause
plaintiffs rely on lawyers who work in small private
practices. Indeed, the bulk of constitutional tort
litigation is brought by local, small-firm lawyers. See
Stewart J. Schwab, Explaining Constitutional Tort
Litigation: The Influence of the Attorney Fees Statute and
the Government as Defendant, 73 Cornell L. Rev. 719, 768-
69 (1988). So while large law firms and institutional
civil-rights litigators may continue to represent
Establishment Clause plaintiffs even in the absence of a
fee-shifting statute, the majority of Establishment Clause
violations will go unredressed because the small-firm
lawyers who typically litigate them will be unable to
afford to take the cases.
Again, the issue is not one of lawyers' profits: Just as
the most well-established civil rights organizations and
largest law firms can ill afford to pay the litigation costs
for major cases, so too must most small firms and solo
practitioners decline to provide representation in more
modest cases when they have no ability to cover the out-of-
pocket expenses required even in cases where the law is clear
and the civil-rights violation egregious.
Compounding the problem is the Act's limitation on the
relief available to Establishment Clause plaintiffs. In most
other classes of civil litigation, plaintiffs who win their
cases receive money damages from the defendant and are able
to use a portion of those damages to pay their lawyers. But
in Estalishment Clause cases, like most civil-rights cases,
prevailing parties are usually entitled only to injunctive
relief, not damages, and thus receive no funds from the
litigation to pay their lawyers. Not content to deny
Establishment Clause plaintiffs the feeshifting protections
that Congress has wisely provided, H.R. 2679 would eliminate
the possibility of money damages even in the incredibly rare
case where Establishment Clause plaintiffs might be able to
show a compensable injury, thus denying them the protection
of a damages remedy that is available for every other class
of legally cognizable injury.
H.R. 2679 Could Perversely Lead to More Establishment Clause Litigation
Further Clogging the Docket of the Federal Courts
The fee-shifting provision in 42 US.C. 1988 levels the
playing field between private citizens and the government in
constitutional tort litigation by encouraging private lawyers
to take meritorious cases and by increasing the potential
costs of litigation to government defendants. It thus deters
government from committing many egregious civil-rights
violations just the way that damages remedies deter unlawful
action in the ordinary run of tort and contract cases. While
eliminating attorney's fees would surely reduce the number of
Establishment Clause claims being brought, even in cases
where the law is most clearly on the plaintiffs side, it
would also ensure that those cases that are filed will be
more costly and more time-consuming to litigate because the
government defendants will have no incentive to settle or to
mitigate the costs of litigation, but instead will view as
``costless'' a fight to defend even the most overt violations
of individuals'' rights to religious freedom, and so will
clog the courts with cases that should be readily resolved.
Unlike private parties, government has virtually unlimited
resources with which to litigate cases and can use those
resources to drag out litigation. Indeed, government
defendants in Establishment Clause cases may not have to
spend even one penny of their own money on litigation if, as
is becoming increasingly frequent, they are represented for
free by a faith-based law firm committed to encouraging
public officials to violate citizens' Establishment Clause
rights. For example, the Thomas More Law Center provided free
representation to the defendants in Kitzmiller v. Dover Area
School District, leading the school board to conclude that,
even though the school district's regular lawyer had warned
that the district would lose the case, it should still fight
a costless battle to force the school board members'
preferred faith on students without regard to the students or
their parents' religious beliefs. After the school district
lost the case, as its lawyer warned it would, the court held
that it was liable to the plaintiffs for their attorney's
fees and costs. That award was essential not just because it
made it possible for the Dover parents to bring the case, but
because it provides a greater incentive to other school
boards in the future to avoid the same wrongdoing that the
Dover school board committed, or at least to settle early
those cases they cannot win, rather than compounding the
violations of parents and students' constitutional rights,
and compounding costs to everyone, by fighting lost causes to
the bitter end.
Just weeks after the Kitzmiller decision, for instance,
several California parents filed an Establishment Clause
challenge to their school district's decision to teach a
course on intelligent design and asked a federal court to
issue a temporary restraining order prohibiting the school
district from offering the course. See Hurst v. Newman, No.
1:06-CY-00036 (C.D. Cal.). Recognizing that its actions were
unlawful and that it would likely owe substantial attorney's
fees and costs to the plaintiffs if it continued to fight,
the school board gratefully accepted the plaintiffs' offer to
waive their right to request attorney's fees in exchange for
the school district canceling the unconstitutional class--a
quick and amicable resolution of the case that would not have
been possible if the availability of attorney's fees had not
been a deterrent to the school board tying up the courts and
dividing the community over its dogged but futile pursuit of
a plainly unconstitutional policy.
And in Florida, the prospect of attorney's fees had a
similar salutary effect: A school district was sued by
parents who objected on Establishment Clause grounds to the
district's decision to hold several high school graduations
in a church, with students accepting their diplomas and
having their commencement photos taken beneath a large cross.
Although a federal district judge preliminarily found that
the parents were likely to win their case on the merits, the
school board initially planned to fight the case all the way
through a full trial. But with the specter of a mounting bill
for the parents' legal fees on the horizon, the school
district ultimately thought better of that plan, promising to
hold future graduations in secular locations in exchange for
an agreement by the parents' attorneys to charge the district
only half the fees that they had accrued up to that point.
Again, but for the threat of a fee award, justice to the
parents would have been delayed and judicial resources would
have been squandered. Indeed, without the possibility of
being liable for attorney's fees, governmental entities like
the Florida and California school districts just described
will have every incentive to engage in straightforwardly
illegal conduct, infringing the religious freedom of the
public--and most especially children, who are most likely to
have their complaints about religious discrimination and
coercion fall on deaf ears unless their families have
recourse in the federal courts.
In Dover, the belief that fighting was costless led the
school board to adopt ``an imprudent and ultimately
unconstitutional policy.'' Kitzmiller v. Dover Area Sch.
Dist., 400 F. Supp. 2d 707, 765 (M.D. Pa. 2005). Indeed, the
court characterized the board's decision as one of
``breathtaking inanity'' and decried the school board's
decision to defend the policy in court, asserting that
``[t]he students, parents, and teachers of the Dover Area
School District deserved better than to be dragged into this
legal maelstrom, with its resulting utter waste of monetary
and personal resources.'' Id. Actually making it costless for
the government to defend Establishment Clause violations
will reproduce that sad state of affairs everywhere.
In passing the Civil Rights Attorney's Fees Awards Act,
Congress recognized that rights are meaningless unless
individual citizens are able to enforce them against the
government:
If private citizens are to be able to assert their civil
rights, and if those who violate the Nation's fundamental
laws are not to proceed with impunity, then citizens must
have the opportunity to recover what it costs them to
vindicate these rights in court.
S. Rep. No. 94-1011, at 2 (1975). Abolishing attorney's
fees in Establishment Clause cases would not simply increase
plaintiffs' cost to file these cases; it would render the
Establishment Clause--a critical safeguard for religious
freedom embodied in the First Amendment of the U.S.
Constitution--a dead letter. As the federal courts have
consistently acknowledged, the Establishment Clause works in
tandem with the Free Exercise Clause to protect Americans'
right to practice their religion as they choose. See, e.g.,
Venters v. City of Delphi, 123 F .3d 956, 969 (7th Cir. 1997)
(Free Exercise and Establishment Clauses ``embody
`correlative and coextensive ideas, representing only
different facets of the single great and fundamental freedom
[of religion]' '') (quoting Everson v. Bd. of Educ., 330 U.S.
1, 40 (1947) (Rutledge, J., dissenting)). So although the
avowed purpose of H.R. 2679 or other similar legislation is
to protect the religious expression of state and local
officials, its effect would be to deeply undermine the
religious liberty of all Americans.
[[Page H7399]]
If you have any questions regarding this legislation or
would like further information on any other issues of
importance to Americans United, please contact Aaron D.
Schuham, Legislative Director, at (202) 466-3234, extension
240.
Sincerely,
Rev. Barry W. Lynn,
Executive Director.
____
Religious Action Center
of Reform Judaism,
Washington, DC, September 12, 2006.
Dear Representative: On behalf of the Union for Reform
Judaism, whose more than 900 congregations across North
America encompass 1.5 million Reform Jews, and the Central
Conference of American Rabbis (CCAR), whose membership
includes more than 1,800 Reform rabbis, I ask you to oppose
H.R. 2679, the ``Public Expression of Religion Act of 2005.''
I also urge you to oppose any other efforts that undermine
the courts' ability to hear cases in which an individual's
rights are at stake.
This dangerous legislation would prevent plaintiffs from
being awarded legal fees and out-of-pocket expenses in cases
involving First Amendment rights. It is nothing more than an
attack on efforts to enforce Constitutionally-protected
rights.
The effort to select only certain rights for the full
protection of the law is a slippery slope at best; and, more
to the point, may spell the start of a full scale assault on
fundamental freedoms. Further, this legislation creates two
tiers of justice, dividing those who can afford to have their
Constitutional rights enforced from those who cannot. This is
a shameful denigration of our commitment to the equality of
all Americans.
Americans of all economic levels and ideological
backgrounds deserve equal protections from our courts and
justice system. I strongly urge you to reject the Public
Expression of Religion Act.
Sincerely,
Mark J. Pelavin,
Associate Director.
____
September 13, 2006.
Dear Senator Representative: The Secular Coalition for
America urges you to oppose H.R. 2679, the so-called Public
Expression of Religion Act (PERA). Passage of this act would
have a chilling effect on the rights of citizens seeking to
protect their constitutional rights under the Establishment
Clause. Without the right to seek attorney fees and costs in
successful challenges of the improper intrusion of religion
into government, elected and appointed officials will have no
obstacles against imposing their religious beliefs on the
general public.
If this bill passes, the only penalty for violations of the
Establishment Clause will be the court's injunction to end
that particular unconstitutional practice. Clever appointed
and elected officials will simply modify their practices just
enough to circumvent the court's ruling knowing that they
will face no penalty for their actions and eventually the
plaintiff will be unable to pursue additional cases through
the court system.
The purpose of PERA is solely to deny Americans access to
the courts to protect their constitutional rights. The
current law allows plaintiffs and their lawyers to recover
reasonable costs and attorneys fees only if their case is
successful. With restitution available only in successful
cases, the current law discourages frivolous lawsuits.
However, without this reasonable restitution, the vast
majority of Americans will not be able to afford the
protections guaranteed to them by our Founders.
By severely limiting lawsuits through PERA, elected and
appointed officials will be unfettered in their pursuits to
incorporate religious symbols and expressions into
governmental spaces and events. These official religious
endorsements and use of religious symbols by the majority of
the moment relegate members of minority religions and the
non-religious to a second-class citizenship.
By allowing citizen access to the judiciary, minorities in
our nation gained the protections afforded by the First
Amendment. These protections have allowed members of minority
religions (such as Jehovah's Witnesses) as well as
nonreligious Americans to be free of government required
religious exercises and endorsement of religious symbols.
Individuals have been free to exercise their own decisions of
conscience in public schools and governmental bodies.
Our nation has respected the separation of powers which our
founders so wisely created to prevent anyone branch from
gaining too much power. Congress must not encroach on the
right of citizens to seek the judiciary's power to resolve
constitutional issues. The limitations PERA would create for
access to the judiciary are equivalent to poll taxes limiting
access to the ballot box. With access to the courts, the
rights of minorities guaranteed in the Bill of Rights would
be meaningless; the Constitution could not be enforced; and a
tyranny of the majority would ensue.
Passage of H.R. 2679 also creates a slippery slope that
would set a dangerous precedent for future restrictions on
the ability to gain attorney fees and costs for other
constitutional arenas that are unpopular with the majority of
the moment. Any time the judicial branch makes a decision
unpopular with the majority in Congress, it could simply pass
legislation effectively taking away citizen access to the
courts. Passing this type of legislation make the freedoms
guaranteed in our Constitution worthless.
Sincerely,
Lori Lipman Brown, Esq.,
Director.
____
The Interfaith Alliance,
Washington, DC, September 14, 2006.
Dear Representative: As the president of The Interfaith
Alliance, I am writing to urge you to oppose H.R. 2679. ``The
Public Expression of Religion Act of 2005.'' The Interfaith
Alliance is a nonpartisan, grassroots organization that
represents more than 185,000 members. We are committed to
promoting the positive and healing role of religion in public
life. While we fully support the public expression of
religion, we cannot support restrictions on the enforcement
of the Bill of Rights which was designed to protect all
Americans, regardless of their religious beliefs.
Americans of all faiths--Buddhists, Hindus, Sikhs, Muslims,
Christians and Jews--and those who profess no faith--must
have the right to practice their religion and raise
challenges when they feel that there is a specific violation
of the clause in the First Amendment which guarantees that
``Congress shall make no law respecting an establishment of
religion.''
And when government has acted in an unconstitutional
manner, citizens seeking their constitutional rights must not
be required to pay the government's legal fees because that
would make it difficult if not impossible for those
individuals to successfully challenge the illegal behavior.
If passed, H.R. 2679 would eliminate damages and awards of
attorneys' fees for individuals or groups in successful cases
brought to ensure their constitutional rights under the
Establishment Clause of the First Amendment to the U.S.
Constitution. This would effectively prevent the full
enforcement of the First Amendment's prohibition on the
establishment of religion by federal, state, and local
governments.
Religious freedom as guaranteed by the First Amendment
includes both the Free Exercise Clause and the Establishment
Clause. One without the other would render religious freedom
a hollow phrase. H.R. 2679 would create a double standard
with enforcement of Free Exercise cases being protected by
guarantees of attorney fees but Establishment Clause cases
being denied the same relief.
The Interfaith Alliance considers H.R. 2679 to be an attack
on the religious freedoms guaranteed to every American by the
Constitution. In the name of religious freedom, we urge you
to oppose ``The Public Expression of Religion Act of 2005.''
It is bad for the Constitution. It is bad for religion.
If there is anything that we at The Interfaith Alliance can
do to assist you in this important matter, please do not
hesitate to contact Preetmohan Singh, Deputy Director of
Public Policy, at 202-639-6370.
Sincerely,
Rev. Dr. C. Welton Gaddy,
President, The Interfaith Alliance.
____
Friends Committee on
National Legislation,
Washington, DC, September 14, 2006.
Members, House of Representatives,
Washington, DC
Dear Representative: The Friends Committee on National
Legislation, a 63-year old Quaker lobby on Capitol Hill,
urges you to oppose H.R. 2679, the ``Public Expression of
Religion Act.'' Though supporters of the bill cite certain
types of cases that would be covered by the Act, the
legislation itself extends to all claims under the
establishment of religion clause. This legislation would
effectively deny access to the courts for individuals wishing
to protect their religious rights, unless they were
personally wealthy enough to fund the litigation.
As members of a minority religion whose foremothers and
forefathers came to this country to escape the religious
intolerance of the English government, Quakers cherish the
U.S. Constitution's protections of religion from the dictates
of government. The Bill of Rights was written to protect
individuals, not the government. In an ironic twist, H.R.
2679 and similar legislation would turn the ``no
establishment of religion'' clause on its ear, protecting the
government against individuals.
Our taxes would pay for the governments' lawyers, but even
in a clear case of disregard for established religious
freedoms, judges would be powerless to relieve an individual
of the burden of paying for litigation to protect his or her
constitutional rights.
Cases protesting government actions under the establishment
clause rarely involve money. The object is almost always to
get the school district, or the registrar's office, or some
other local or state official, to carry out regulations and
programs in a constitutionally sound manner, without giving
preference to a particular religious view or affiliation, or
to accommodate the religious beliefs of a minority. Providing
for attorney fees in cases in which the plaintiff prevails is
the only practical way to provide access to the court for
those who are not wealthy.
We urge you to reject H.R. 2679 and similar legislation,
and to support the religious freedoms guaranteed by the First
Amendment.
Sincerely,
Ruth Flower,
Legislative Director.
____
Jewish Council for Public Affairs,
September 12, 2006.
Dear Representative: The Jewish Council for Public Affairs,
JCPA, is the umbrella organization for the organized Jewish
community. Our membership includes 13 national
[[Page H7400]]
Jewish agencies and 125 Jewish Community Relations Councils.
On behalf of the organized Jewish community, I urge you to
oppose the ``Public Expression of Religion Act of 2005'',
H.R. 2679. As Jews, members of a religious minority in the
United States, we are particularly sensitive to the
relationship between religion and state in this Nation.
The Public Expression of Religion Act, PERA, prevents
judges from awarding attorney's fees in Establishment Clause
cases. This restriction severely limits the ability of
Americans to bring suit against the government or public
officials when their religious liberties have been
compromised. Lawsuits are very expensive. The passage of this
bill would essentially prohibit all but the very wealthy from
protecting their rights. Regardless of economic status, all
Americans should have the ability to protect their liberties
and challenge unconstitutional actions.
JCPA policy calls for a clear separation between religion
and government. ``In our increasingly pluralistic society, a
clear division between religion and state remains the best
way to preserve and promote the religious rights and
liberties for all Americans, including the Jewish
community.'' PERA compromises this separation and threatens
to infringe on the rights of many Americans by making it
prohibitively expensive and thus practically impossible, to
challenge an official's or jurisdiction's actions.
On Thursday, September 6, the House Judiciary Committee
completed its markup of this bill and reported it to the
House floor.
I strongly urge you to oppose this legislation and protect
the ability of millions of Americans to live in a society
that respects religious freedom and liberty.
Sincerely,
Hadar Susskind,
Washington Director.
____
National Council of Jewish Women,
September 12, 2006.
Dear Representative: On behalf of the 90,000 members,
volunteers, and supporters of the National Council of Jewish
Women, NCJW, I am writing in opposition to the ``Public
Expression of Religion Act,'' H.R. 2679. This bill would
eliminate compensation of attorneys' fees for individuals who
bring legal challenges under the Establishment Clause in
cases in which they prevail. Effectively, it would prevent
low-income Americans from defending their constitutional
rights, reserving this protection only for those wealthy
enough to afford litigation.
All Americans should have the same ability to defend their
constitutionally protected rights, regardless of economic
status. Organizations that donate legal services to help
those who rights have been violated will be discouraged from
this pro bono work if they cannot recoup a portion of their
financial expenditures. Instead of protecting religious
liberty, this bill seriously compromises it by limiting
access to the courts.
For over a century, NCJW has been at the forefront of
social change, raising its voice on important issues of
public policy. Inspired by our Jewish values, NCJW has been,
and continues to be, an advocate for religious liberty with a
strong belief that the separation of religion and state are
constitutional principles that must be protected and
preserved in order to maintain our democratic society.
I urge you to oppose legislation that would limit an
individual's ability to defend the liberties provided by the
Constitution and the Bill of Rights. Please demonstrate
commitment to those documents and the values they represent
by voting against the ``Public Expression of Religion Act''.
Sincerely,
Phyllis Snyder,
NCJW President.
Mr. SMITH of Texas. Mr. Speaker, I would like to yield 4 minutes to
the gentleman from Indiana (Mr. Pence).
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. Mr. Speaker, I am grateful for the gentleman's leadership
on this issue. I rise in strong support of the Public Expression of
Religion Act; and I do so with particular gratitude to my Hoosier
colleague, John Hostettler, who, during the course of his career in the
United States House of Representatives, has stood for the freedom of
religion as perhaps no other American.
And I say that with understandable parochial Hoosier pride, but I
also say it as an objective observation, that the gentleman from
Indiana has stood for a constitutional accommodationist view of respect
for the expression of religion and its importance in American heritage.
Mr. Speaker, I commend him for his outstanding work on this
legislation.
In 1976, a statute was passed in this Congress called the Civil
Rights Attorney's Fees Awards Act. Very simply and plainly, this
statute was intended to protect the constitutional rights of citizens
and level the legal playing field.
Under this Act, a citizen who felt that his or her constitutional
rights had been violated could sue a government official or entity and
receive attorney's fees if they win.
This was important legislation, and it has served a great public
good. But it has also served to catalyze a form of litigation since the
advent of decisions by the United States Supreme Court in the 1960s and
1970s that moved away from our historical view that the freedom of
religion was not the freedom from religion, and it has become a tool, I
say very respectfully, to their cause. It has become the tool of
elements who would advance a radical secularist view of the public
square in America, and who have used the opportunity to access the
public Treasury in the form of attorney's fees to not only finance
massive litigations against government entities to scrub our public
square of any vestige of reference to God or reference to the religious
heritage of the American people, but also it has been used to prevent
that day in court from happening.
The availability of massive amounts of attorney's fees have caused
many municipalities, even some in Indiana, to relent in their fight to
preserve the public display of the Ten Commandments or references to
God in the public square because of the local government's inability to
access Federal funds to pay their attorney's fees.
So in a very real sense the unintended consequence of the 1976 law
was to take a playing field that was imbalanced to one side and make it
imbalanced to the other. And today, because of Congressman John
Hostettler's leadership in the Public Expression of Religion Act, we
are leveling the playing field once again. We are saying to every
American who believes in their heart that ``In God We Trust'' should
not appear in the well of this Congress as it does behind me, that
every American who thinks there should be no reference to religion in
the public square whatsoever, it says to every American whose view of
the Constitution is that the Establishment Clause is somehow an
antiseptic to remove any reference to our religious heritage in this
country, it says: The courts are open to you, but the Treasury is not.
As we might say in Indiana, where I was born and raised and lived,
that, to put it very plainly, I may fight to the death for your right
to hold the views that you hold, but that doesn't mean that I have to
pay for it.
And because of Congressman Hostettler's leadership on the Public
Expression of Religion Act, we say the courthouse doors are open to
anyone who would challenge the public expression by local governors or
government officials the acknowledgement of the deep and rich heritage
over hundreds and hundreds of years of the American people, who we
would say, in this instance, in these cases, the public treasury is not
open. Raise your money, bring your challenges, and let the court work
its will.
Mr. NADLER. Mr. Speaker, I yield 2 minutes to the distinguished
gentlewoman from California.
Ms. WATERS. Mr. Speaker, I oppose this legislation because it
prevents people from getting attorney's fees or economic damages even
if a court agrees with them that the Federal Government has violated
their constitutional right to religious freedom or not to be forced to
recognize one religion over another. In other words, Congress is
telling the courts that they do not know how to do their jobs.
Article III of the Constitution states that the judicial power of the
United States shall be vested in one Supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and
establish.
Why are we trying to do the Court's job by deciding that these
Establishment Clause claims deserve only injunctive or declaratory
relief?
This bill reaches right into the Civil Rights Act, for the first time
in history, I might add, singles out people who have Establishment
Clause claims and tells them that they cannot recover any economic
damages. How can this be so, Mr. Speaker? How can this be so, when the
11th Circuit in Glassroth v. Moore, a case decided in 2003, stated
that: For Establishment Clause claims based on noneconomic harm, the
plaintiffs must identify a personal injury suffered by them as a
consequence of the alleged constitutional error.
The court found injury in Glassroth because the claimants had altered
their conduct and incurred expenses in order to minimize contact with a
Ten Commandments monument erected in the
[[Page H7401]]
rotunda of Alabama's State judicial building.
With this bill, this committee attempts to overturn Federal judicial
opinions, and that is simply not our role. Congress established
enforcement remedies under section 1983 more than 100 years ago.
Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, we have heard a lot of rhetoric that is really beside
the point on this bill. We all agree, I hope, that the United States
Constitution governs. We all agree, I hope, that the Bill of Rights
confers certain rights on Americans, whether citizens or not. We all
agree that freedom of religion, freedom to exercise religion, and
freedom from establishment of religion are among those rights. We all
agree, I hope, that the courts are there to enforce those rights. And
then the disagreement begins.
This bill would seek to put a thumb on the scale and say, and we
heard this rhetoric: We don't like the ACLU. We don't like what they
are doing, even if the courts say they are right in a given case.
Because we don't like what they are doing, because their winning court
decisions violates our concept of what the Establishment Clause means,
we are going to put a thumb on the scale and say that people who win
lawsuits, who establish to the court's satisfaction that the government
has violated their rights under the first amendment, the Establishment
Clause, they cannot get damages, they cannot get attorneys' fees. We
are going to put a poll tax on the Establishment Clause. Only people
with a lot of money had better sue to enforce their first amendment
rights.
If you don't have a lot of money but the government is violating your
rights under the Establishment Clause, you can't sue. Because even if
your attorney tells you you have got a 99 percent chance of winning
because these people know they are wrong, it may still cost you a
couple hundred thousand dollars. And they paint the picture of these
poor cities and towns and governments having to kowtow to an
organization, but the fact is, who generally has more money for a
lawsuit? The City of New York, the City of Galveston, the town of
whatever, or an individual?
You are putting a means test on protecting your rights to freedom of
religion. I don't think that is what this country ought to be about.
Because, after all, someone has got to pay for that lawsuit. Someone
has got to pay the attorneys' fees, and that is either going to be the
plaintiff who alleges a violation of his rights, or it is going to be
the government that allegedly violated his rights.
The law says, current law, that if you prove that the government
violated your rights, the government should pay the cost of that
lawsuit, not you.
This bill says that, for most things, that is still true; but for the
Establishment Clause rights, it no longer true, and you have got to pay
for the lawsuit that the government made you bring by willfully, or
perhaps not willfully, violating your rights.
They say, well, look at the City of San Diego. It is costing them
hundreds of thousands of dollars. Well, if they listened to their
attorney who said, gee, what you are doing may very well violate the
first amendment or does violate the first amendment, then maybe they
wouldn't have had to pay those hundreds of thousands of dollars. With
this bill, there will be no financial incentive to obey the
Establishment Clause.
Second, this bill does not, as I said before, cover only the cases
they are talking about; it covers all establishment cases. And let's
think of an establishment case. Let's assume, and we know that
throughout the history of this country different ethnic groups,
different religious groups have different political weights at
different times. Let's assume that in some town the Sunni Muslims
became a majority, and let's assume that they decided in that town that
everybody, Christians, Jews, Muslims, in school had to recite every day
on pain of expulsion from class there is no God but Allah, and Mohammed
is his prophet. Pretty clear violation of the Establishment Clause in
the first amendment.
Now, somebody who is not a Muslim in that case, someone who is Jewish
or Christian or something else, decides to sue and wins the lawsuit;
and they say you can't do that. You can't get attorneys' fees. He has
got to bear the cost of that. Why? Because of hostility on the part of
the sponsors of this bill to the Establishment Clause of the first
amendment. Because they think that only the majority religion is ever
going to be in the position to dominate a local government or any
government.
Maybe so. But the real reason we have the first amendment is that you
can never be sure. It may be that in the future some group that isn't
the majority now will be the majority in some local area; and if you
make it difficult to enforce the Establishment Clause of the first
amendment, you or your children could be the ones imposed upon.
Now, we heard about this horrible situation, about the challenge to
this or challenge to that. But, as I said before, the real complaint is
not with the attorneys' fees, the real complaint is with the first
amendment. You think you ought to be able to do whatever it was and
what the courts have said, no, you can't. Well, maybe you shouldn't or
maybe we should amend the Constitution. Which I wouldn't suggest, but
that would be the right way to do it. Or maybe we should get different
judges or whatever.
But if the courts say you are violating the first amendment, you
shouldn't continue to do it. You should be able to get damages if you
continue to do it. And the plaintiff, vindicating his own
constitutional rights, should be able to bring a lawsuit without having
a lot of money.
Now, we heard also that, well, the various organizations say that
even if you pass this bill, they will still sue. But that is not the
question. The first amendment does not belong, the Constitution of the
United States does not belong to the American Civil Liberties Union or
to Americans United for Separation of Church and State or United
Americans Against the Separation of Church and State.
{time} 1530
It is the individual right that you are violating here. It is an
individual's right, or maybe a whole class of individuals, that you are
violating when you violate the establishment clause of the first
amendment, and any individual should have the right and the ability to
go to court and if he wins, to get attorneys fees.
We have made a decision, we have made a decision in this country, and
maybe you want to challenge that decision, but this bill doesn't do
that. That decision is that when your constitutional rights are
violated and you can prove it to the court, that the government
violated your constitutional rights, then the government should pay for
the cost of your vindicating the Constitution and vindicating your
rights against the government that broke the law by violating your
rights. That is a general principle.
Maybe you want to say no, we don't care that much about individual
rights any more, first amendment, second amendment, whatever. From now
on you want to sue the government because they violated your rights,
you pay no matter what, even if you win. Okay, that is a different
bill. I would oppose it, but that is a different bill. That is not this
bill. This bill says we think all rights are important. If you think
that the government violated your second amendment right to own a gun
and you go to court and you prove it, the government pays for that
lawsuit, and properly so.
But if you think the government violated your right to practice your
religion by violating the establishment clause, and you prove it, the
government doesn't pay. You have to pay for it because your right to
own a gun is a heck of a lot more important than your freedom of
religion, apparently. That doesn't make sense.
Mr. Speaker, if we believe in the individual rights enshrined in the
Bill of Rights, if we believe in the first amendment and the freedom of
religion in this country, and if we believe we shouldn't single out
freedom of religion and say that freedom is less important, that
freedom if you win, and forget the merits of these cases, if you lose,
you don't get attorneys fees or damages.
We are talking about where you are right and the government is wrong.
The government is violating your rights, and this bill says you
shouldn't get damages or attorneys fees anyway
[[Page H7402]]
because we don't like your point of view. That is wrong. It is
demeaning to this Congress, and if we believe in freedom of religion
and the Bill of Rights, we will defeat this bill.
Mr. Speaker, I yield back the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, we have just had a speaker arrive on
the House floor, and I would like to yield 1\1/2\ minutes to the
gentleman from Pennsylvania (Mr. Pitts) if the gentleman from New York
doesn't object.
Mr. PITTS. Mr. Speaker, I want to thank the gentleman from Indiana
(Mr. Hostettler) for his efforts to raise awareness of this important
issue.
Mr. Speaker, passing this bill would be a win for millions of
Americans who cherish religious freedom in America. And it would be a
win for those who understand our Constitution guarantees freedom of
religion, not freedom from religion.
We all know in 1976 Congress passed a law allowing citizens to sue
the government if they feel their constitutional rights have been
violated. In recent years, groups like the ACLU have twisted this law
to advance their agenda of eliminating any public expression of
religion.
By using the threat of a lawsuit combined with uncertain
jurisprudence on the issue, these groups have been able to bully local
governments into removing any expression of religion whatsoever, and
this affects public seals, Boy Scouts, veterans memorials, Ten
Commandment displays, among other things.
Slowly but surely, groups like the ACLU are using the practice to
remove any public acknowledgment of religion. This bill protects
religious freedom by eliminating the unfair advantage groups like the
ACLU enjoy. By denying these groups the ability to collect attorneys
fees in establishment clause cases, this bill puts America's countless
cities, towns and localities on a level-playing field. No longer would
the taxpayers in these towns be forced to foot the bill to defend their
constitutional right to freedom of religion. The bill addresses a real
concern in a meaningful way. I urge all Members to support its passage.
Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, today under Federal law, attorneys fees can be demanded
from the winning side in lawsuits against States or localities, or the
Federal Government, brought under the Constitution's establishment
clause.
Current litigation rules are hostile to religion because they allow
some groups to force States and localities into removing any reference
to religion in public places.
H.R. 2679 would prevent the legal extortion that currently forces
State and local governments, and the Federal Government, to accede to
demands for removal of religious text and imagery when such removal is
not compelled by the Constitution.
Current laws allow plaintiffs to put the following choice to
localities: either do what we want and remove religious words and
imagery from your public square or risk a single adverse judgment from
a single judge that requires you to pay tens or hundreds of thousands
of dollars in legal fees in a case that you can't afford to litigate
through the appeals process.
Mr. Speaker, local governments are being forced to accede to the
demands of opponents, even when their actions are in fact
constitutional.
The section of the U.S. code H.R. 2679 amends was never intended to
apply to establishment clause claims. 42 U.S.C. 1988, which allows
attorneys fees, was intended only to allow the award of attorneys fees
civil rights laws enacted by Congress after 1866. We need to return to
that original purpose and pass this legislation. I urge my colleagues
to support it
Mr. HOYER. Mr. Speaker, this legislation--the so-called Public
Expression of Religion Act--not only is brazenly hypocritical, but it
also is politically cynical and would set a very dangerous precedent.
Quite simply, this bill would bar the award of attorney fees to the
prevailing parties asserting their fundamental constitutional rights in
cases brought under the establishment clause of the first amendment.
This is, indeed, a change of heart for a Republican party that has
tried in vain for years to impose a ``loser pays'' rule on attorney
fees in tort cases.
In fact, with this bill, the House Majority lays bare the outcome
determinative agenda that guides the Republican party when it comes to
issues that involve our legal system and judiciary.
That is, the majority seeks to enact legal procedural advantages for
those with whom it agrees.
Make no mistake, if this bill became law, it would single out one
area of Constitutional Protections under the Bill of Rights and prevent
its full enforcement.
Without question, that would set a dangerous precedent.
The substance of the Constitution is meaningless unless all Americans
have a fair and equal opportunity to go to court when their
constitutional rights are curtailed by the state.
By barring the award of attorney fees to prevailing parties asserting
their constitutional rights in cases brought under the Establishment
Clause, H.R. 2679 will discourage Americans of limited means from
defending their rights.
Taken to its logical to conclusion, this bill would make the U.S.
Constitution the tool for those who can afford to vindicate their
rights in a court of law.
As such, it is a dangerous bill that runs counter to more than 200
years of American jurisprudence.
I urge my colleagues: vote against this bill.
Mr. CONYERS. Mr. Speaker, the very first amendment to the
constitution provides that ``Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.''
This protects a right--freedom of religion--that is fundamental in any
democratic and free society. Since the bill of rights was approved in
1791, several additional measures have been taken to safeguard this
right. For example, the Civil Rights Act of 1871, now known as Section
1983, and the Civil Rights Attorney's Fee Award Act of 1976, now know
as Section 1988, were enacted to provide all citizens with the means to
protect all constitutional rights. Today, the Majority would have this
Congress take a step back from these critical protections.
I oppose the legislation before us because it is unprecedented, it
treats religious minorities unfairly, and it will interfere with
meritorious claims.
First, H.R. 2679 is unprecedented. For the first time in our history,
Congress will be singling out one area of constitutional protections
under the Bill of Rights and prevent its full enforcement. The
Congressional Research Service reports, ``[Section 1983] has not been
substantially altered since 1871.'' Under this legislation citizens
challenging Establishment Clause violations will no longer have the
ability to recover attorneys' fees. Remedies will be limited to
injunctive and declaratory relief.
On the heels of the Voting Rights Act reauthorization, I am troubled
that we would take up legislation that would limit a person's ability
to enforce his or her constitutional rights. The VRA reauthorization
expanded a plaintiff's ability to obtain expert witness fees. This bill
eliminates attorneys' fees and relegates those who seek to enforce
their constitutional rights against state sanctioned religion to second
class status.
Second, H.R. 2679 treats religious minorities unfairly.
Despite its name, this bill does not encourage the expression of
religion. Rather, this bill leaves religious minorities without
protection by promoting government sanctioned religion.
This Nation was founded on the principle of religious freedom, and
the Establishment Clause forbids the government from forcing one
religious viewpoint on all Americans. In 2005 in McCreary County,
Kentucky v. ACLU, Sandra Day O'Connor explained, ``Voluntary religious
belief and expression may be threatened when government takes the
mantle of religion upon itself.'' H.R. 2679 cripples the First
Amendment and religious minorities will pay the price.
Third, H.R. 2679 will deter meritorious claims. It is a fact of life
in our society that bringing complex civil actions against the
government is expensive. Since this bill would deny attorney's fees to
a prevailing plaintiff, numerous suits challenging Establishment Clause
violations will not be brought.
The point of Section 1988 is to provide victims with limited means an
opportunity to have their day in court.
Unfortunately, H.R. 2679 will prevent a victim from protecting his or
her constitutional rights against a defendant with large resources,
such as the government.
It is interesting that so many religious groups strongly oppose this
measure. These groups include the Baptist Joint Committee, American
Jewish Congress, and the Unitarian Universalist Association of
Congregations. The Leadership Conference on Civil Rights, Lawyers'
Committee, Alliance for Justice, Human Rights Campaign, and People for
the American Way are also among the numerous organizations that also
oppose this bill.
Please vote ``no'' on this legislation, which will cause great harm
to the concept of freedom of religion in this country.
[[Page H7403]]
Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in opposition to H.R.
2679, the so-called ``Public Expression of Religion Act of 2005.'' The
central purpose of this legislation is to bar damages and awards of
attorneys' fees to prevailing parties asserting their fundamental
constitutional rights in cases brought under the Establishment Clause
of the First Amendment to the U.S. Constitution. H.R. 2679 would limit
the longstanding remedies available in cases brought under the
Establishment Clause under 42 U.S.C. 1988, which provides for
attorneys' fees and costs in all successful cases involving
constitutional and civil rights violations.
I oppose H.R. 2679 for three very important reasons. First, the bill
limits access to justice and makes it virtually impossible for an
injured party to obtain remedial relief from a serious deprivation of a
fundamental, constitutionally protected right. Second, H.R. 2679 would
jettison a legal and constitutional principle that has stood the nation
in good stead for over two centuries: that an injured party is entitled
to just compensation for the injury he or she has sustained caused by
the intentional wrongdoing or negligent conduct of others. Third, H.R.
2679 discriminates against the Establishment Clause of the First
Amendment in favor of the Free Exercise Clause. I will address each of
the fatal deficiencies in turn.
1. H.R. 2679 limits access to justice for those seeking to vindicate
Constitutional Rights.
If H.R. 2679 were to become law, Congress would, for the first time,
single out one area protected by the Bill of Rights and prevent its
full enforcement. The only remedy available to plaintiffs bringing
Establishment Clause lawsuits would be injunctive relief. This
prohibition would apply even to cases involving illegal religious
coercion of public school students or blatant discrimination against
particular religions.
Awards of attorneys' fees in civil rights and constitutional cases,
including Establishment Clause cases, are necessary not merely to help
prevailing parties vindicate their civil rights but also to provide an
incentive for vigorous enforcement of these protections, which the
Framers put in place to protect the Nation. Since widespread observance
of the rights and protections set forth in the First Amendment is above
a collective good, it is vitally important that there be an incentive
for individuals to act as ``private Attorneys General'' to vindicate
their individual rights and the public interest in a robust First
Amendment. Our sister committee in the other body has found these fees
``an integral part of the remedies necessary to obtain . . .
compliance'' and emphasized that ``[i]f the cost of private enforcement
actions becomes too great, there will be no private enforcement.''
H.R. 2679 would turn the Establishment Clause into a hollow
pronouncement. Indeed, the very purpose of this bill is to make it more
difficult for citizens to challenge violations of the Establishment
Clause. It would require plaintiffs who have successfully proven that
the government has violated their constitutional rights to pay their
legal fees--often totaling tens, if not hundreds, of thousands of
dollars. Few citizens can afford to do so, but more importantly,
citizens should not be required to do so where there is a finding that
our government has engaged in unconstitutional behavior.
If our civil rights laws are not to become empty words written on
parchment which the average citizen cannot enforce, we must maintain
the traditionally effective remedy of fee shifting in these cases.''
In sum, I oppose H.R. 2679 because I believe the elimination of
attorneys' fees for Establishment Clause cases would deter attorneys
from taking cases in which the Government has violated the
Constitution; thereby leaving injured parties without representation
and without a remedy. It will insulate serious constitutional
violations from judicial review. This effectively leaves religious
minorities subject to the unbridled whims of the majority, which is
precisely the evil the First Amendment, including its Establishment
Clause, was intended to combat.
2. H.R. 2679 Denies Just Compensation.
I am a former judge and, like many members of this Committee, an
attorney. We know that attorneys' fees are not awarded in Establishment
Clause cases as a punitive measure. Rather, as in any case where the
Government violates its citizens' civil or constitutional rights, the
award of attorneys' fees is reasonable compensation for the expenses of
litigation awarded at the discretion of the court. In fact, after
intensive fact-finding, Congress determined that the amount of
attorneys fees awarded after review by the court ``are adequate to
attract competent counsel, but . . . do not produce windfalls to
attorneys.''
Thus, H.R. 2679 is contrary to good public policy because it reduces
enforcement of constitutional rights; it has a chilling effect on those
who have been harmed by the Government; it makes it exceedingly
difficult for plaintiffs to avail themselves of the services of
attorneys experienced and skilled in constitutional litigation, and it
prevents attorneys from acting in the public's good.
3. H.R. 2679 Favors Enforcement of the Free Exercise Clause Over the
Establishment Clause.
Finally, one cannot help but notice that H.R. 2679 creates an
arbitrary congressional policy in favor of the enforcement of the Free
Exercise Clause, while simultaneously impeding individuals injured by
governmental conduct under the Establishment Clause.
Among the greatest religious protections granted to American citizens
are the Establishment Clause and the Free Exercise Clause. The right to
practice religion, or no religion at all, is among the most fundamental
of the freedoms guaranteed by the Bill of Rights. Religious liberty can
only truly flourish when a government protects the Free Exercise of
religion while prohibiting government-sponsored endorsement, coercion
and funding of religion.
Through the denial of attorneys' fee awards under H.R. 2679,
plaintiffs will be able to afford the expense of litigation only when
they are seeking to protect certain constitutional rights but not
others. This bad congressional policy serves to create a dangerous
double standard by favoring cases brought under the Free Exercise
Clause, but severely restricting cases under the Establishment clause.
4. Conclusion
If the Constitution is to be meaningful, every American must have
equal access to the federal courts to vindicate his or her fundamental
constitutional rights. The ability to recover attorneys' fees in
successful cases is an essential component of the enforcement of these
rights, as Congress has long recognized. H.R. 2679 is a direct attack
on the religious freedoms of individuals. Therefore, I cannot support
it.
I am pleased to learn that I am supported in my opposition to this
ill-conceived and unwarranted assault on the First Amendment's
Establishment Clause by some of the most thoughtful and knowledgeable
groups on this subject in America, including: African American
Ministers in Action, American Jewish Committee, American Jewish
Congress, American Civil Liberties Unions, Americans United for
Separation of Church and State, Jewish Counsel for Public Affairs,
People for the American Way, The Urban League, American-Arab Anti-
Discrimination Committee, Asian Pacific American Legal Center, Mexican
American Legal Defense and Education Fund, National Association for the
Advancement of Colored People (NAACP), National Senior Citizens Law
Center.
I urge my colleagues to uphold the First Amendment's Establishment
Clause and join me in opposing this shameful piece of legislation.
Mr. KING of Iowa. Mr. Speaker, I urge support for H.R. 2679, the
``Public Expression of Religion Act of 2005.'' This bill prevents
American taxpayers from having to subsidize judicial activism,
encouraged by liberal groups bringing establishment clause cases.
Today, taxpayers are being forced to pay for the lawyers of the ACLU
who demand the removal of religious text and imagery from the public
square. These organizations attempt to make public policy through the
courts, instead of Congress where such actions belong.
How many times will we stand silent as intolerant organizations such
as the ACLU strong-arm the American people into removing cherished
symbols of our Nation's heritage and faith? These actions are not
compelled by the Constitution or supported by the will of the people.
``To compel a man to subsidize with his taxes the propagation of ideas
which he disbelieves and abhors is sinful and tyrannical.'' Thomas
Jefferson said that, and contrary to the ACLU, I believe that what our
founding fathers believed in and stood for is still relevant today.
American taxpayers currently have to pay for ACLU ``victories.'' ACLU
press releases, sadly I must say, tout quite a record. For example:
The County of Los Angeles was recently forced to remove a tiny cross
from its official seal, symbolizing the founding of the city by
missionaries. The removal of this cross is costing the county around $1
million, as it would entail changing the seal on some 90,000 uniforms,
6,000 buildings, and 12,000 county vehicles.
In San Diego, the ACLU forced the Boy Scouts out of Balboa Park
because of the organization's religious beliefs, and taxpayers were
required to pay $950,000 in legal fees and court costs to the ACLU.
In Barrow County, GA, the ACLU received $150,000 from taxpayers after
a Federal judge ordered the county to remove a framed copy of the Ten
Commandments from a hallway in the County Courthouse.
In Redlands, California, the city council was forced into changing
its official seal but didn't have the funds to revise every symbol that
contained the old seal. Now Redlands' residents see blue tape covering
the tiny cross on city trucks, while some firefighters have taken
drills to remove the cross from their badge.
These are just a few examples of the kinds of cases the American
taxpayer is forced to
[[Page H7404]]
subsidize. Americans should not be compelled to pay the lawyers who
remove historic American symbols. The Public Expression of Religion Act
would stop this action. I am glad to be a co-sponsor of this bill, and
I urge support for its passage.
Ms. WOOLSEY. Mr. Speaker, today the Republicans bring to the floor a
bill that would undermine yet another basic freedom. The so-called
``Public Expression of Religion Act'' is nothing more than an attack on
religious liberty. It promotes government-sponsored religion by
limiting challenges to such constitutional violations.
This bill is about the government stopping people from standing up
for their civil rights. By restricting people's ability to stand up for
their civil rights when governments promote a particular religion, this
bill chips away at the constitutionally protected separation of church
and state.
That's not all that's at issue here. Language in the bill leaves the
door open to all sorts of state-sponsored violations of constitutional
freedoms. It casts a dangerously wide net.
This bill also gives the green light to civil rights violations.
Exempt from monetary damage payments, local, State and Federal
Governments would not have to think twice before violating the
separation of church and state. They could act with impunity.
Paying attorneys' fees is a normal, time-honored procedure. It allows
citizens to stand up for their constitutional rights, knowing that if
the court rules in their favor, they can recover the legal fees. This
bill is an egregious ploy to undercut Americans' civil rights.
Barring attorney's fees would be unprecedented. This dangerous
example would set our civil rights on a slippery slope to extinction.
Mr. SMITH of Texas. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. All time for debate has expired.
Pursuant to House Resolution 1038, the previous question is ordered
on the bill, as amended.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. SMITH of Texas. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
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