[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.

                          ____________________