[House Report 109-657]
[From the U.S. Government Publishing Office]




109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-657

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

 
    VETERANS' MEMORIALS, BOY SCOUTS, PUBLIC SEALS, AND OTHER PUBLIC 
             EXPRESSIONS OF RELIGION PROTECTION ACT OF 2006

                                _______
                                

 September 14, 2006.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2679]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred 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, having considered the same, report 
favorably thereon with amendments and recommend that the bill 
as amended do pass.
  The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

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.

  Amend the title so as to read:

      A bill to amend the Revised Statutes of the United States to 
prevent the use of the legal system in a manner that extorts money from 
State and local governments, and the Federal Government, and inhibits 
such governments' constitutional actions under the first, tenth, and 
fourteenth amendments.

                          Purpose and Summary

    Under current law, attorneys' fees can be demanded by the 
winning side in lawsuits against States or localities and the 
Federal government--brought under the Constitution's 
Establishment Clause--demanding that veterans' memorials be 
torn down because they happen to have religious symbols on 
them; that the Ten Commandments be removed from public 
buildings; that the Boy Scouts be forced off public property; 
and that crosses be eliminated from official county seals, 
among other things. Caselaw under the Establishment Clause is 
so unpredictable that States and localities know defending 
themselves in such lawsuits is fraught with uncertainty./1/ The 
threat of having to pay attorneys' fees in such cases should 
they happen to lose sometimes leads States and localities to 
forego whatever rights they might have under the Constitution--
and concede to the demands of those bringing Establishment 
Clause lawsuits--often before such cases even go to trial. H.R. 
2679, the ``Veterans'' Memorials, Boy Scouts, Public Seals, and 
Other Public Expressions of Religion Protection Act of 2006,'' 
will address concerns that current law compels local, State, 
and Federal government entities to accede to demands for the 
removal of religious text and imagery when such removal is not 
compelled by the Constitution.
---------------------------------------------------------------------------
    /1/For example, the Fifth Circuit Court of Appeals has called the 
Supreme Court's Establishment Clause jurisprudence ``rife with 
confusion.'' Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 
343 (5th Cir. 1999). And as one professor has written, ``[T]he Supreme 
Court's establishment clause jurisprudence has unified critical 
opinion: people who disagree about nearly everything else in the law 
agree that establishment doctrine is seriously, perhaps distinctively, 
defective.'' Steven D. Smith, ``Separation and the 'Secular': 
Reconstructing the Disestablishment Decision,'' 67 Tex. L. Rev. 955, 
956 (1989).
---------------------------------------------------------------------------

                Background and Need for the Legislation

    The Supreme Court has held 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.''/2/ However, contrary to that principle, current 
litigation rules allow some groups to compel States and 
localities into removing any reference to religion in public 
places.
---------------------------------------------------------------------------
    /2/School District of Abington Township v. Schempp, 374 U.S. 203, 
225 (1963) (quotations and citations omitted).
---------------------------------------------------------------------------
    42 U.S.C. Sec. 1983 is the Federal statute that allows 
people to sue States and local governments for alleged 
constitutional violations of their individual rights. 42 U.S.C. 
Sec. 1988 is the Federal fee-shifting statute that allows 
prevailing plaintiffs in lawsuits filed under Sec. 1983 to be 
awarded attorneys' fees from the defendant. Consequently, under 
42 U.S.C. Sec. 1983, anyone can sue State and local governments 
claiming their individual rights were violated and demand 
attorneys' fees in the case if they prevail at any stage of 
judicial review./3/ Using these Federal statutes, groups like 
the American Civil Liberties Union (``ACLU'') can threaten to 
file lawsuits claiming cities and towns have violated the 
Establishment Clause./4/ Towns know that a single adverse 
judgment at any level of the court system will require them to 
pay not only their own legal fees, but the ACLU's as well. 
Localities could file an appeal of any such adverse judgment, 
but the appeal would cost additional money, money most towns 
don't have to spend, especially when they face competing claims 
for spending on education and health care. As a result, 
localities are often required to capitulate to the ACLU's 
demands at the outset of litigation because the costs to the 
town of complying with the ACLU's demands are less than the 
costs of successfully litigating the case to a final judgment. 
Even if a locality wins the case after an extremely costly 
appeal, the locality will most likely not be awarded attorneys' 
fees because the Supreme Court has set the standard for an 
award of attorneys' fees to a prevailing defendant very high. 
Consequently, localities that are sued have little hope of 
being awarded attorneys' fees even if they win the case./5/ 
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    /3/Local governments, but not State governments, are persons 
subject to Sec. 1983 liability. See Will v. Michigan Dep't of State 
Police, 491 U.S. 58, 70 (1989); Monell v. New York City Dep't of Soc. 
Serv., 436 U.S. 658, 690 (1978). However, State and local government 
officials are also persons under Sec. 1983. As the Supreme Court stated 
in Will v. Michigan Dep't of State Police, ``a state official in his or 
her official capacity, when sued for injunctive relief, would be a 
person under Sec. 1983 because official-capacity actions for 
prospective relief are not treated as actions against the State.'' Will 
v. Michigan Dep't of State Police, 491 U.S. 58, 71 n.10 (1989) (citing 
Kentucky v. Graham, 473 U.S. 159, at 167 n.14 (1985)). Section 2 of 
H.R. 2679 applies only to cases for prospective relief, namely 
injunctive and declaratory relief.
    /4/The First Amendment to the Constitution provides that ``Congress 
shall make no law respecting an establishment of religion ...''
    /5/The Supreme Court has read fee-shifting statutes in such a way 
that they only operate to the benefit of those filing the lawsuits, not 
those defending the lawsuits. See e.g., Christianburg Garment Co. v. 
EEOC, 434 U.S. 412, 420 0922 (1978). In Christianburg, the Supreme held 
that, even though the statute on its face provided ``no indication 
whatever of the circumstances under which either a plaintiff or 
defendant should be entitled to attorney's fees,'' an award of 
attorneys' fees may be made to a successful defendant, rather than a 
successful plaintiff, in a Title VII action only if the court found 
that the plaintiff's action was ``frivolous, unreasonable, or without 
foundation.'' Id. at 418, 421. This was because ``Congress wanted to 
clear the way for suits to be brought under [Title VII],'' id. at 420, 
in a manner that did not unduly stifle a plaintiff's incentives to 
bring such claims. See id. at 412 (``To take the further step of 
assessing attorney's fees against plaintiffs simply because they do not 
finally prevail would substantially add to the risks inhering in most 
litigation and would undercut the efforts of Congress to promote the 
vigorous enforcement of the provisions of Title VII. ``). The Court 
elaborated in Hughes v. Rowe, 449 U.S. 5, 14 (1980) that, for a 
defendant to benefit from cost-shifting, ``The plaintiff's action must 
be meritless in the sense that it is groundless or without foundation. 
The fact that a plaintiff may ultimately lose his case is not in itself 
a sufficient justification for the assessment of fees.''
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    This legal dynamic has provided enormous leverage to groups 
like the ACLU to require that State and local governments: tear 
down veterans' memorials that happen to have religious symbols 
on them; remove the Ten Commandments from public buildings; 
force the Boy Scouts off public property; and eliminate crosses 
from official county seals. In short, 42 U.S.C. Sec. 1983 and 
42 U.S.C. Sec. 1988 often force localities to make the 
following choice: accede to the demandsof the ACLU or similar 
organizations to remove religious words and imagery from the public 
square, or risk a single adverse judgment by a single judge that 
requires the payment of tens or hundreds of thousands of dollars in 
legal fees in a case too expensive to litigate through the appeals 
process. Consequently, local governments are being forced to agree to 
the demands of those seeking to tear down religious words or symbols 
and ban religious people from using the public square, even when 
permitting those religious words and expressions is constitutional.
    Contributing to this result is the fact that Establishment 
Clause law is one of the most unpredictable and confusing areas 
of law. As Professor Patrick Garry testified before the 
Constitution Subcommittee on June 22, 2006:

The threat of an attorney's fee award is particularly chilling 
because of the highly uncertain and inconsistent status of 
current constitutional doctrines governing the Establishment 
Clause. Over the past several decades, the courts have not only 
used an array of different constitutional tests for determining 
Establishment Clause violations, but have applied those tests 
in confusing and inconsistent ways. In 2005, for instance, the 
Supreme Court issued rulings on the same day in two cases 
involving the public display of the Ten Commandments. Those 
rulings, however, contained opposite holdings. In McCreary 
County v. ACLU,/6/ the Court found a framed copy of the Ten 
Commandments in a courthouse hallway to be an unconstitutional 
establishment of religion. But in Van Orden v. Perry,/7/ the 
Court upheld a Ten Commandments monument on the grounds of the 
Texas state capitol. Not only were the rulings different in the 
two cases, but different constitutional tests were used in each 
case. In Van Orden, the plurality opinion did not even mention 
what had, up to that time, become the most prominent test for 
judging public displays or expressions of religion--the 
endorsement test--nor did Van Orden employ the infamous Lemon 
test./8/ Instead, the Court resorted to a somewhat infrequently 
used test articulated in Marsh v. Chambers:/9/ a test looking 
at whether there has been an unbroken tradition of certain 
religious acknowledgments, such as with the public display of 
the Ten Commandments./10/ Furthermore, the crucial fifth vote 
supplied by Justice Breyer in Van Orden appeared to rely on yet 
a brand new test--a ``legal judgment'' test that seems to call 
on justices to exercise their [subjective] common sense in 
cases such as these./11/ 
---------------------------------------------------------------------------
    /6/125 S. Ct. 2722 (2005).
    /7/25 S. Ct. 2854 (2005).
    /8/125 S. Ct. at 2861 (calling the Lemon test inappropriate for 
``passive'' religious expressions).
    /9/463 U.S. 783, 792 (1983) (upholding the Nebraska legislature's 
practice of opening sessions with a prayer by a state-employed clergy).
    /10/Van Orden, 125 S. Ct. at 2861 0963.
    /11/125 S. Ct. at 2869 (Breyer, J., concurring).
---------------------------------------------------------------------------
    There have been and remain sharp disagreements between the 
Justices of the United States Supreme Court and lower court 
judges over the meaning and application of the Establishment 
Clause. A fee shifting statute that governs in such a confused 
area of law allows plaintiffs to use the threat of attorneys' 
fees to compel government officials to a desired result, 
whether or not that result is the right one.


                          what h.r. 2679 does


    H.R. 2679, the ``Veterans'' Memorials, Boy Scouts, Public 
Seals, and Other Public Expressions of Religion Protection Act 
of 2006,'' will remedy current law that requires local, State 
and Federal government to accede to demands for the removal of 
religious text and imagery when such removal is not compelled 
by the Constitution.
    Section 1 of H.R. 2679 provides the short title of the 
bill.
    Section 2 of H.R. 2679 amends 42 U.S.C. Sec. 1988 such that 
attorneys' fees could not be awarded to prevailing parties in 
Establishment Clause cases. Section 2 also amends 42 U.S.C. 
Sec. 1983 to make clear that while Establishment Clause cases 
can continue to be brought against State and local governments, 
cases can be brought only for injunctive or declaratory 
relief./12/ That means the only relief a court can order in 
those cases is for a State official or local government to stop 
doing whatever it is doing that is an alleged violation of the 
Establishment Clause or simply declare what the law is. (That 
is, under Section 2 of H.R. 2679, a court could not order 
monetary damages or attorneys' fees in Establishment Clause 
cases.) Establishment Clause cases covered by Section 2 include 
cases challenging a veterans' memorial's containing religious 
words or imagery; a public building's containing religious 
words or imagery; the presence of religious words or imagery in 
the official seals of States and localities; the chartering of 
Boy Scout units by components of States and localities; and the 
Boy Scouts' using public buildings.
---------------------------------------------------------------------------
    /12/An injunction is ``a court order commanding or preventing an 
action. To get an injunction, the complainant must show that there is 
no plain, adequate, and complete remedy at law and that an irreparable 
injury will result unless the relief is granted.'' Black's Law 
Dictionary (8th ed. 2004). Injunctions are enforceable by contempt 
proceedings and contempt is punishable by fine or imprisonment. See 
Black's Law Dictionary (8th ed. 2004) (contempt).
---------------------------------------------------------------------------
    Section 3 of H.R. 2679 applies the same principles embodied 
in Section 2 to Establishment Clause cases brought against the 
Federal government. Section 3 creates a new section in the U.S. 
Code that provides that a court shall not award attorneys' fees 
or expenses to the prevailing party in Establishment Clause 
cases brought against the United States or any agency or any 
official of the United States acting in his or her official 
capacity, and that the remedies available with respect to such 
a claim shall be limited to injunctive and declaratory relief. 
The Establishment Clause cases covered by this section include 
cases challenging a veterans' memorial's containing religious 
words or imagery; a Federal building's containing religious 
words or imagery; the presence of religious words or imagery in 
the official seal of theUnited States and in its currency and 
official Pledge; 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.
    The amended title of the bill provides that the secular 
purpose of the bill is to prevent the use of the legal process 
to unfairly extract money from local, State and Federal 
governments, or otherwise inhibit constitutional actions by 
such governments as they pertain to public expressions of 
religion.

                WHY SECTION 2 OF H.R. 2679 IS NECESSARY

    Section 2 of H.R. 2679 (which applies to lawsuits against 
State officials and local governments) is necessary because, 
under existing law, groups such as the ACLU have won millions 
of dollars in attorneys' fees while forcing localities to tear 
down unobtrusive religious references on public property.\13\ 
Rees Lloyd, a former ACLU civil rights attorney who is now with 
the American Legion, supports H.R. 2679, saying, ``We're 
talking about millions of dollars annually. I don't think it 
should be forgotten that, in driving the Boy Scouts out of 
Balboa Park in San Diego, that the ACLU ended up with $940,000 
in attorney fees, taxpayer funds.'' \14\
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    \13\ These awards include the following:
     The ACLU received $950,000 in a settlement with the City 
of San Diego in a case involving the San Diego Boy Scouts. See Seth 
Hettena, ``City of San Diego Settles Boy Scout Suit,'' AP Online 
(January 8, 2004).
     The ACLU received $150,000 from Barrow County, Georgia, 
after a Federal judge ordered the county to remove a framed copy of the 
Ten Commandments from a hallway in the County Courthouse. See Cameron 
McWhirter, ``10 Commandments: Barrow Removes Religious Display; County 
Complies with U.S. Judge,'' The Atlanta Journal-Constitution (July 20, 
2005) at 1B.
     The ACLU received $121,500 from Kentucky in a case to 
remove a Ten Commandments monument outside the Capitol. See Jack 
Brammer, ``State Legislature Foots the Bill for ACLU Victory; Group 
Fought Lawmaker's Plan for Monument,'' Lexington Herald Leader (July 8, 
2003) at B1.
     The ACLU received $38,000 in legal fees in a case against 
Hamilton County, Tennessee, to remove the Ten Commandments from a court 
building. See Chris Joyner and Kimberly Greuter, ``Judge Awards 
Attorneys'' Fees in Postings Case,'' Chattanooga Times Free Press (June 
19, 2002) at B1.
     The ACLU and two other groups received nearly $550,000 in 
an Alabama case to remove the Ten Commandments from a courthouse. See 
Kyle Wingfield, ``Legal Battle over Ten Commandments Monument Will Cost 
Alabama Taxpayers More Than $500,000,'' Associated Press (April 14, 
2004).
     The ACLU received nearly $75,000 from Habersham County, 
Georgia, in a case involving two Ten Commandments displays, one at the 
county courthouse and one in the county swimming pool building. See 
http://www.acluga.org/docket.html.
    \14\ Hannity & Colmes (Fox News) (transcript) (December 30, 2005).
---------------------------------------------------------------------------
    A huge number of these legal ``victories'' have been 
trumpeted in ACLU press releases, in which the ACLU often 
openly acknowledges it was the threat of lawsuits against 
localities that could least afford them that resulted in the 
ACLU's getting its way. The following are examples of ACLU 
press releases:
           ``County Officials in Iowa Agree to Remove 
        Ten Commandments from Courthouse Grounds'' (March 15, 
        2001) (``Ben Stone, Executive Director of the Iowa 
        Civil Liberties Union [said] `[w]e . . . wanted to 
        spare the community a divisive and costly lawsuit.' '') 
        (emphasis added);
           ``ACLU of Montana Settles Lawsuit Over Ten 
        Commandments, Nativity Scene Placed on County 
        Property'' (October 12, 2000) (``The ACLU said the 
        lawsuit was a 'last attempt' to nudge Custer County 
        into addressing the possible unconstitutionality of the 
        displays.'') (emphasis added);
           ``ACLU Action Prompts [Val Verde, 
        California] School Board to Abandon Posting of Ten 
        Commandments'' (November 24, 1999) (``The school 
        board's decision came in the wake of the filing of a 
        lawsuit last week by the ACLU . . .'') (emphasis 
        added);
           ``ACLU of Illinois Lauds Officials' Decision 
        to Remove Religious Postings in Harrisburg Schools'' 
        (December 7, 1999) (The ``Director of Communications 
        for the ACLU [said] `This action means the people of 
        Harrisburg can focus all their energies, resources, and 
        attention on the needs of their students, rather than 
        worrying about a lengthy, expensive and disruptive 
        court battle.' '') (emphasis added);
           ``Commandments Come Down in West Virginia 
        School'' (August 27, 1999) (``School board attorney 
        Brian Abraham recommended at a Thursday night meeting 
        that the signsbe taken down to avoid possible 
lawsuits.'') (emphasis added).
    The County of Los Angeles was recently extorted into 
removing a tiny cross from its official county seal 
(symbolizing the founding of the city by missionaries),\15\ 
which 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.\16\
---------------------------------------------------------------------------
    \15\ See Troy Anderson, ``Vote on Cross Upheld Before Angry 
Crowd,'' The Los Angeles Daily News (June 9, 2004) at N1 (``Despite 
passionate pleas from an overflow crowd of 2,000, Los Angeles County's 
Board of Supervisors refused Tuesday to back down on its decision to 
remove a tiny Christian cross on the official seal because of a legal 
threat from the ACLU.''). As columnist John Leo observed, ``Last year 
the ACLU demanded that Los Angeles County eliminate from its seal a 
microscopic cross representing the missions that settled the state of 
California. Under threat of expensive litigation, the county complied. 
The cross was about one-sixth the size of a not-very-big image of a cow 
tucked away on the lower right segment of the seal, and maybe a 
hundredth of the size of a pagan god (Pomona, goddess of fruit) who 
dominated the seal. Pomona survived the religious purge. She is not the 
sort of god that the ACLU worries about, whereas the flyspeck-sized 
cross was a threat to unravel separation of church and state, as we 
know it. What will happen if the ACLU learns that Los Angeles, Santa 
Monica, Sacramento, San Francisco, St. Louis and Corpus Christi 
actually have religious names? We shudder to think.'' John Leo, ``How 
Many ACLU Lawyers Can Dance on the Head of a Pin?'' The Mobile Register 
(October 25, 2005) at A8.
    \16\ Hannity & Colmes (Fox News) (transcript) (December 30, 2005).
---------------------------------------------------------------------------
    This summer, in a legal dispute that has continued for 17 
years, a Federal judge ordered the city of San Diego to remove 
a cross from Mount Soledad that was raised as a veterans' 
memorial 50 years ago on a site where a cross had stood as far 
back as 1913.\17\ According to the plaintiff's attorney, he is 
owed more than $500,000 in legal fees from the city.\18\
---------------------------------------------------------------------------
    \17\ Onell R. Soto, ``City Has 90 Days to Remove Mt. Soledad 
Cross,'' The San Diego Union-Tribune (May 4, 2006) at A1; Matthew T. 
Hall, ``Radio Takes up Effort to Save Cross,'' The San Diego Union-
Tribune (March 19, 2005) at B1.
    \18\ Tony Perry, ``Officials Turn to U.S. to Save Cross,'' Los 
Angeles Times (May 12, 2006) at B4.
---------------------------------------------------------------------------
    The official name of the City of Los Angeles (known as 
``The City of Angels'') is ``The Town of Our Lady the Queen of 
Angels of the Little Portion,'' which refers to Mary, Mother of 
Jesus. Many other California cities contain religious 
references, including San Clemente, Santa Monica, Sacramento 
(named for the ``Holy Sacrament''), San Francisco and San Luis 
Obispo (named for Saint Louis the Bishop). Under precedents 
groups like the ACLU are setting under 42 U.S.C. Sec. 1983, the 
very names of these cities are in legal jeopardy. According to 
one prominent legal commentator: ` ``I think the ACLU may very 
well bring similar cases in future years all over the country,' 
said Erwin Chemerinsky, a professor of constitutional law at 
the University of Southern California. Since 1999, the ACLU, 
other groups and individuals have been successful in getting 
crosses on government seals removed in Los Angeles County, 
Redlands and La Mesa; Zion, Illinois; Stow, Ohio; Bernalillo, 
New Mexico; Rolling Meadows, Illinois; and Edmond, Oklahoma.'' 
\19\
---------------------------------------------------------------------------
    \19\ Troy Anderson, ``Will the Law Wipe L.A. Off the Map? Courts: 
ACLU Challenge to Cross on County Seal Leads Some to Wonder if Holy 
City Names Are Next,'' The Long Beach Press-Telegram (June 13, 2004) at 
A1.
---------------------------------------------------------------------------
    In Redlands, California, the city council reluctantly 
capitulated to ACLU's demands and agreed to change their 
official seal. But Redlands didn't have the municipal funds to 
revise police and firefighter badges that contained the old 
seal so, 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 drills to `obliterate it' from their 
badges.'' \20\ The old seals are ``everywhere,'' according to a 
Redlands county spokeswoman, who ``couldn't even hazard a guess 
what it would cost to replace the logos.'' \21\
---------------------------------------------------------------------------
    \20\ Marjie Lundstrom, ``At a Crossroads for Diversity,'' 
Sacramento Bee (June 3, 2004) at A3.
    \21\ Marjie Lundstrom, ``At a Crossroads for Diversity,'' 
Sacramento Bee (June 3, 2004) at A3.
---------------------------------------------------------------------------
    Section 2 of H.R. 2679 will protect cities and towns from 
these unfair and coercive practices.

                WHY SECTION 3 OF H.R. 2679 IS NECESSARY

    Section 3 of H.R. 2679 is necessary because even the 
Federal government, with vast superior litigation resources, 
has been forced to bow to similar pressure and stop the 
Pentagon from sponsoring the Boy Scouts.\22\ Further, section 3 
is necessary because, without it, extortionist lawsuits will 
threaten to remove religious references from our most prominent 
Federal buildings and on Federal property, and from some of our 
Nation's most important cultural traditions. What sorts of 
religious references are these? Consider the following.
---------------------------------------------------------------------------
    \22\ See ``Pentagon Agrees to End Direct Sponsorship of Boy Scout 
Troops in Response to Religious Discrimination Charge'' (November 15, 
2004) (ACLU press release) (``In response to a religious discrimination 
lawsuits brought by the American Civil Liberties Union of Illinois, the 
Defense Department today agreed to end direct sponsorship of hundreds 
of Boy Scouts units, which require members to swear religious oaths, on 
military facilities across the United States and overseas.''). In 
another case, Buono v. Norton, 371 F.3d 543 (9th Cir. 2004), the Ninth 
Circuit held that a small, approximately six-foot tall cross affixed to 
the top of a rock that serves as a veterans' memorial was 
unconstitutional because it was located on federally-owned land in the 
Mojave National Preserve in California, roughly 11 miles from the main 
highway, and the plaintiff, who lived in Oregon, found it offensive. 
The ACLU was awarded $63,000 in the case. See David Asman, ``Battle to 
Tear Down a Tribute,'' Fox News (June 2, 2005).
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    The First Congress not only acknowledged a proper role for 
religion in public life, but it did so at the very time it 
drafted the Establishment Clause. Just three days before 
Congress sent the text of the First Amendment to the States for 
ratification, it authorized the appointment of legislative 
chaplains.\23\ Both Houses of Congress open their daily 
sessions with prayer and, in recent years, recitation of the 
Pledge of Allegiance.\24\ Manifestations of the religious faith 
of our forebears appear throughout the Nation's Capital. The 
Senate Chamber is inscribed with the words ``In God We Trust'' 
and the Latin phrase ``Annuit Coeptis'' or ``God has favored 
our undertakings.'' \25\ The Main Reading Room of the Library 
of Congress prominently displays the Biblical quotation: ``The 
heavens declare the Glory of God, and the firmament showeth His 
handiwork.'' \26\ Friezes on the North and South walls of the 
Supreme Court chamber depict a procession of historical 
lawgivers including Moses.\27\
---------------------------------------------------------------------------
    \23\ See Marsh v. Chambers, 463 U.S. 783, 788 (1983).
    \24\ See Senate Rule IV.1, Standing Rules of the Senate, S. Doc. 
No. 107-1, at 4 (2002); House Rule XIV.1, Constitution, Jefferson's 
Manual, and Rules of the House of Representatives, H.R. Doc. No. 106-
320, at 620 (2001).
    \25\ S. Doc. No. 82-20, at 27 (1951); 4 U.S.C.A. Sec. 4.
    \26\ John Y. Cole, On These Walls 35 (1995) (Psalms 19:1).
    \27\ See County of Allegheny v. ACLU, 492 U.S. 573, 652-53 (1989) 
(Stevens, J., concurring in part and dissenting in part).
---------------------------------------------------------------------------
    In the Rotunda of the Capitol Building, there are paintings 
with religious themes, such as the Apotheosis of Washington, 
depicting the ascent of George Washington into Heaven, and the 
Baptism of Pocahontas, portraying Pocahontas' baptism by an 
Anglican minister. A wall in the Cox Corridor of the Capitol is 
inscribed with this line from Katharyn Lee Bates' Hymn, America 
the Beautiful, ``America! God shed his grace on Thee, and crown 
thy good with brotherhood from sea to shining sea.'' In the 
prayer room of the House chamber, the following prayer is 
inscribed: ``preserve me, O God--for in thee do I put my 
trust.''
    On July 20, 1956, Congress proclaimed that the national 
motto of the United States is ``In God We Trust,'' and that 
motto is inscribed above the main door of the Senate, behind 
the Chair of the Speaker of the House of Representatives, and 
on the currency of the United States.\28\
---------------------------------------------------------------------------
    \28\ 4 U.S.C. Sec. 4 (historical notes) (Congressional finding 
(10)).
---------------------------------------------------------------------------
    The Supreme Court opens each session with ``God save the 
United States and this Honorable Court.'' \29\ The very chamber 
in which oral arguments are heard before the Supreme Court ``is 
decorated with a notable and permanent--not seasonal--symbol of 
religion: Moses with Ten Commandments.'' \30\ Our courtrooms 
generally include the oath, ``so help me God.'' \31\
---------------------------------------------------------------------------
    \29\ See Zorach v. Clauson, 343 U.S. 306, 313 (1952).
    \30\ Lynch v. Donnelly, 465 U.S. 668, 677 (1984).
    \31\ Zorach v. Clauson, 343 U.S. 306, 313 (1952).
---------------------------------------------------------------------------
    The Tomb of the Unknown Soldier is engraved with the words: 
``Here rests in honored glory an American soldier known but to 
God.'' \32\ Arlington National Cemetery maintains thousands of 
religious inscriptions on state-owned property.
---------------------------------------------------------------------------
    \32\ See Lieutenant Colonel H. Wayne Elliott, The Third Priority: 
The Battlefield Dead, 1996 Army Law. 3, 20.
---------------------------------------------------------------------------
    Our National holidays (``holy days'') include Christmas 
(``Christ Mass''), Thanksgiving, and the National Day of 
Prayer.\33\ Our children celebrate St. Valentine's Day and St. 
Patrick's Day in school. (St. Valentine was a Christian martyr, 
and St. Patrick was a Catholic.) \34\ Even ``Santa Claus'' is 
derived from St. Nicholas (``Santa'' means ``saint'' and 
``Claus'' is short for ``Nicolaus''), the archbishop of Myra 
known for distributing his inherited wealth to the needy by 
anonymously throwing bags of gold coins through windows.\35\
---------------------------------------------------------------------------
    \33\ See Lynch v. Donnelly, 465 U.S. 668, 676 (1952).
    \34\ St. Patrick, Encarta Encyclopedia (2003).
    \35\ See ``Santa Claus,'' Encarta Encyclopedia (2003).
---------------------------------------------------------------------------
    And some of our most patriotic songs, such as ``God Bless 
America,'' affirm a belief in God. The fourth stanza of the 
statutorily prescribed National Anthem includes the following: 
``Blest with victory and peace, may the heaven-rescued land, 
Praise the Power that hath made and preserved us a nation. Then 
conquer we must, when our cause is just, And this be our motto: 
`in God is our trust.' '' \36\
---------------------------------------------------------------------------
    \36\ 36 U.S.C. Sec. 301(a).
---------------------------------------------------------------------------

                      H.R. 2679 IS CONSTITUTIONAL

    H.R. 2679 is constitutional. The Supreme Court has used the 
following three factors to determine whether a statute violates 
the Establishment Clause. It has asked: (1) does the statute 
have a religious purpose?; (2) does the statute have the 
primary effect of either promoting or inhibiting religion?; (3) 
does the statute create an ``excessive entanglement'' between 
churches and the government? \37\
---------------------------------------------------------------------------
    \37\ See Lemon v. Kurtzman, 403 U.S. 602 (1971).
---------------------------------------------------------------------------
    The clear answer to all three questions regarding H.R. 2679 
is no.
    First, H.R. 2679 has a secular legislative purpose, namely 
the purpose 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, it restores the original purpose of 42 
U.S.C. Sec. Sec. 1983 and 1988, which was to protect individual 
rights (not Establishment Clause claims).
    Second, H.R. 2679 does not have the primary effect of 
either promoting or inhibiting religion. Rather, it simply 
removes the coercive effects of the current legal rules. It 
does so by: (1) allowing Establishment Clause cases to go 
forward and allowing violations to be ordered stopped; and (2) 
restoring the ``American rule'' to Establishment Clause cases 
such that each side will pay its own legal fees.\38\ 
(Establishment Clause cases can be brought both by those who 
claim the government is unconstitutionally promoting religion, 
and by those who claim the government is unconstitutionally 
hostile to religion,\39\ and H.R. 2679 affects each group 
equally.)
---------------------------------------------------------------------------
    \38\ What is known as the ``American Rule'' is the rule that each 
side in a lawsuit shoulders the burden of paying their own legal costs 
whether they win or lose the case. As the Supreme Court has stated, 
``Under this `American Rule,' we follow a general practice of not 
awarding fees to a prevailing party absent explicit statutory 
authority.'' Buckhannon v. West Virginia Department of Health and Human 
Resources, 532 U.S. 598, 602 (2001). While 42 U.S.C. Sec. 1988 allows 
prevailing parties to be awarded attorneys' fees in litigation under 42 
U.S.C. Sec. 1983, H.R. 2679 simply removes Establishment Clause cases 
from coverage under 42 U.S.C. Sec. 1988 and restores the application of 
the American Rule--a rule that governs the vast majority of lawsuits 
already--in Establishment Clause cases.
    \39\ 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.'' School District of 
Abington Township v. Schempp, 374 U.S. 203, 225 (1963) (quotations and 
citations omitted).
---------------------------------------------------------------------------
    Third, H.R. 2679 does not create an excessive government 
entanglement with religion because it removes the existing 
extortionist abuse of the legal rules that pressures local 
governments to give up their right to constitutionally 
protected activity. In doing so, H.R. 2679 disentangles Federal 
authority from religion by removing the major financial 
incentive that encourages groups like the ACLU to bring these 
cases in the first place.\40\
---------------------------------------------------------------------------
    \40\ In recent years, the Supreme Court has conflated the last two 
prongs of the Lemon test. See Agostini v. Felton, 521 U.S. 203, 232 
(1997) (``Regardless of how we have characterized the issue, however, 
the factors we use to assess whether an entanglement is 'excessive' are 
similar to the factors we use to examine 'effect.' That is, to assess 
entanglement, we have looked to the character and purposes of the 
institutions that are benefited, the nature of the aid that the State 
provides, and the resulting relationship between the government and 
religious authority. Similarly, we have assessed a law's 'effect' by 
examining the character of the institutions benefited (e.g., whether 
the religious institutions were 'predominantly religious'), and the 
nature of the aid that the State provided (e.g., whether it was neutral 
and nonideological). Indeed, in Lemon itself, the entanglement that the 
Court found 'independently' to necessitate the program's invalidation 
also was found to have the effect of inhibiting religion. Thus, it is 
simplest to recognize why entanglement is significant and treat it ... 
as an aspect of the inquiry into a statute's effect.'') (citations and 
quotations omitted).
    H.R. 2679 is of course constitutional under these conflated factors 
as well because (1) the institutions it would benefit are the State, 
local, and Federal governments (and not, for example, inherently 
religious organizations); (2) the nature of the aid H.R. 2679 provides 
is simply the removal of a legal rule that has an extortionist effect 
on those State, local, and Federal governments; and (3) the resulting 
relationship between the government and religious authorities is 
unchanged by H.R. 2679.
---------------------------------------------------------------------------
    Further, 42 U.S.C. Sec. 1983 currently 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 . . .'' \41\ 
Section 1983 was designed as a mechanism for protecting only 
individual rights. Because the Establishment Clause does not 
secure an individual right, Establishment Clause lawsuits 
should not be covered under Sec. 1983 in the first place.\42\ 
As Justice Kennedy made a similar distinction in Lee v. 
Weisman, ``the Establishment Clause is a specific prohibition 
on the forms of state intervention in religious affairs with no 
precise counterpart in the [free] speech provision [in the 
Constitution].'' \43\
---------------------------------------------------------------------------
    \41\ 42 U.S.C. Sec. 1983 (emphasis added).
    \42\ Individual rights are there to protect individuals, whereas 
the Establishment Clause is a structural prohibition against the 
government's establishing a national religion. While structural limits 
on government power often expand the sphere in which individuals can 
act, the purpose of structural limits is to confine each governmental 
branch into its proper sphere, rather than to define the sphere of 
liberties within which individuals are free to act.
    \43\ 505 U.S. 577, 591-92 (1992).
---------------------------------------------------------------------------
    Further, 42 U.S.C. Sec. 1988, which allows attorneys' fees 
in cases brought under 42 U.S.C. Sec. 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. 
Sec. 1988 is as follows. In Alyeska Pipeline Service Co. v. 
Wilderness Society,\44\ the Supreme Court held that Federal 
courts do not have inherent power to award prevailing party 
attorney's 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.'' \45\ 
Accordingly, the Court held that fee-shifting relief can only 
validly be awarded by courts when statutorily authorized by 
Congress, in specific exceptions to the general rule.\46\ In 
response to the Alyeska Pipeline decision, Congress enacted 42 
U.S.C. Sec. 1988 to allow the award of attorneys' fees in 
limited cases. Those cases were explained in the Senate 
Committee report on the legislation, as follows:
---------------------------------------------------------------------------
    \44\ 421 U.S. 240 (1975).
    \45\ 421 U.S. at 270.
    \46\ Id. at 269.

The purpose and effect of S. 2278 are simple--it is designed to 
allow courts to provide the familiar remedy of reasonable 
counsel fees to prevailing parties in suits to enforce the 
civil rights acts which Congress has passed since 1866.\47\
---------------------------------------------------------------------------
    \47\ S. Rep. No. 94-1011, at 2 (1976) (emphasis added).

    Clearly, the Establishment Clause is not a civil rights act 
that Congress passed after 1866, and Establishment Clause cases 
should not be covered at all under the attorneys' fees 
provisions of 42 U.S.C. Sec. 1988.
    Finally, as Professor Patrick Garry emphasized in his 
written testimony before the Constitution Subcommittee, ``the 
Public Expression of Religion Act is necessary to avoid a 
chilling of First Amendment rights.'' \48\ As his testimony 
states, ``[t]he Supreme Court has specifically overturned 
governmental attempts to avoid Establishment Clause litigation 
when those attempts result in the chilling or infringement of 
free speech or religious exercise freedoms.'' \49\ Professor 
Garry outlined cases, including Good News Club v. Milford 
Central School,\50\ Lamb's Chapel v. Center Moriches Union Free 
School District,\51\ and Rosenberger v. Rector & Visitors of 
the University of Virginia,\52\ which ``stand for the 
proposition that fears [on the part of the government] of 
incurring Establishment Clause lawsuits cannot justify 
viewpoint discrimination against religious speech or 
organizations.'' \53\ As Professor Garry states, ``the kind of 
infringement on First Amendment freedoms that occurred in 
Lamb's Chapel, Good News, and Rosenberger, all because of a 
fear of facing Establishment Clause lawsuits, is just the kind 
of infringement that can arise because of the chilling effect 
caused by a fear of being saddled with a Section 1988 award for 
attorney's fees.'' \54\
---------------------------------------------------------------------------
    \48\ Testimony of Professor Patrick M. Garry before the 
Subcommittee on the Constitution in support of H.R. 2679, June 22, 
2006, at 6.
    \49\ Id. at 6-7.
    \50\ 533 U.S. 98 (2001).
    \51\ 508 U.S. 384 (1993).
    \52\ 515 U.S. 819 (1995).
    \53\ Testimony of Professor Patrick M. Garry before the 
Subcommittee on the Constitution in support of H.R. 2679, June 22, 
2006, at 7.
    \54\ Id.
---------------------------------------------------------------------------

       ARGUMENTS REGARDING ``THE SEPARATION OF CHURCH AND STATE''

    While opponents of this legislation may rely on arguments 
that H.R. 2679 somehow violates ``the separation of church and 
state,'' it is important to keep in mind that no such phrase 
appears in the Constitution.
    In his book entitled ``Separation of Church and State,'' 
Philip Hamburger, the John P. Wilson Professor of Law at the 
University of Chicago, provides an exhaustively researched 
account of the history of the oft-repeated notion of ``the 
separation of church and state.''
    Essentially, the phrase originated when Thomas Jefferson 
(who, as the Ambassador to France, was in Paris when the 
Continental Congress framed the First Amendment) used it in a 
letter intended to silence clergyman who were members of the 
Federalist political party who were using their sermons in the 
Northeast to criticize Jefferson, a member of the Republican 
party.\55\ The phrase went largely unnoticed until, in the 
eighteenth and nineteenth centuries, there were attempts to 
amend the Constitution to explicitly require a separation of 
church and state.\56\ Following those failed attempts, the Ku 
Klux Klan officially adopted the phrase as a means of 
articulating its disapproval of Roman Catholics in 
government.\57\ One of those Klan members was Hugo Black,\58\ 
who later became a Supreme Court Justice and authored the 
Supreme Court's 1947 decision in Everson v. Board of Education, 
which first enshrined the concept of ``the separation of church 
and state'' in constitutional law.\59\
---------------------------------------------------------------------------
    \55\ See Philip Hamburger, Separation of Church and State (Harvard 
University Press 2002) at 111-12, 151, 161-62 (``During the election of 
1800, Republicans had reason to try to separate Federalist clergymen 
from politics. Beginning in the 1790s, and now with renewed effort, 
Federalist ministers inveighed against Jefferson, often from their 
pulpits, excoriating his infidelity and deism . . . In defense of 
Jefferson, Republicans argued that clergymen ought not preach about 
politics, and eventually, beginning in 1800, some made such arguments 
in terms of separation--in particular, a separation of religion and 
politics. Seizing upon the idea of separation--a concept that until 
1800 had been unusual and anything but popular--these Republicans 
elevated it to a political principle. Although establishment ministers 
had caricatured dissenters as seeking a separation of religion from 
civil government, and although dissenters had declined to seek 
separation, Republicans now endorsed it as a means of discouraging 
Federalist clergy, especially in Congregational New England, from 
preaching against Jefferson . . . [I]n 1815, Jefferson wrote a letter 
arguing that . . . the clergy should not have `the right of discussing 
public affairs in the pulpit'. . . Jefferson's letter elevated 
anticlerical rhetoric to constitutional law . . . Jefferson adopted the 
demand of his partisans, arguing that the First Amendment built `a wall 
of separation between church and state,' writing that `. . . I 
contemplate with sovereign reverence that act of the whole American 
people which declared that their legislature should ``make no law 
respecting an establishment of religion, or prohibiting the free 
exercise thereof,'' thus building a wall of separation between Church & 
State.' . . . Jefferson interpreted the U.S. Constitution to require a 
version of what his supporters had sought in the heat of the campaign . 
. . If Jefferson had high hopes that his letter would promptly sow 
useful truths and principles, he must have been disappointed, for his 
epistle was not widely published or even noticed.'').
    \56\ See Philip Hamburger, Separation of Church and State (Harvard 
University Press 2002) at 285, 287, 335 (``Contrary to what may be 
expected, the nineteenth-century advocates who desired the separation 
of church and state as a constitutional right did not rely upon 
constitutional interpretation to secure this goal. Instead, recognizing 
separation's inadequate constitutional foundations, they sought 
constitutional amendments. Only in the twentieth century, after the 
amendment process had been abandoned, did an interpretive approach 
prevail, and, by this means, separation became part of American 
constitutional law . . . In the 1870s and 1880s anti-Christian 
secularists organized a national campaign to obtain a constitutional 
amendment guaranteeing a separation of church and state . . . After the 
failure of the Liberal and Protestant proposals for a constitutional 
amendment, advocates of separation focused on constitutional 
interpretation. They quickly forgot about arguments that an amendment 
was necessary and claimed instead that American constitutions had 
already, since their inception, fully guaranteed a separation of church 
and state.'').
    \57\ See Philip Hamburger, Separation of Church and State (Harvard 
University Press 2002) 407-09, (``No nativist or Protestant 
organization more prominently supported the ideal of separation than 
the Revised [Ku Klux] Klan. Founded in 1915, this second Ku Klux Klan 
enjoyed particular success between 1921 and 1926, when it had about 
five million members and innumerable sympathizers. It exerted profound 
political power in states across the country and, probably more than 
any other national group in the first half of the century, drew 
Americans to the principle of separation . . . Separation became a 
crucial tenet of the Klan. When recruiting members, the Klan sometimes 
distributed cards listing `the separation of church and state' as one 
of the organization's principles . . . Both in the South and the North, 
members even recited in their `Klansman's Creed': `I believe in the 
eternal Separation of Church and State.' Commenting on such vows, an 
`authoritative' writer--identified only as `931KNOIOK'--explained: `The 
Klan is pledged to maintain inviolate and perpetuate forever the 
principle of complete separation of Church and State, and the Roman 
Catholics fight this, because no sincere and devout Roman Catholic does 
or is permitted to believe in the separation of Church and State. The 
Roman Catholic Church is first, last and forever opposed to the 
separation of Church and State and in favor of the absolute control and 
domination of the State by the Roman Catholic Church.''').
    \58\ See Philip Hamburger, Separation of Church and State (Harvard 
University Press 2002) at 423, 426-28, 462 (``Hugo Black was more than 
simply a Baptist and a progressive. He was also a Klansman . . . The 
Klan provided Black with his path to the Senate. In September 1923 
Black joined the powerful Richard E. Lee Klan No. 1 and promptly became 
Kladd of his Klavern--the officer who initiated new members by 
administering the oath about `white supremacy' and `separation of 
church and state.' . . . After Black decided to run [for U.S. Senate], 
Grand Dragon Jim Esdale told him, `Give me a letter of resignation and 
I'll keep it in my safe against the day when you'll need to say you're 
not a Klan member.' Recognizing the wisdom of this suggestion, Black 
gave Esdale a brief letter of resignation, signing it, `Yours, 
I.T.S.U.B. [In The Sacred, Unfailing Bond], Hugo L. Black.' . . . Black 
appealed directly to Klan and other anti-Catholic voters. According to 
Esdale, `I arranged for Hugo to go to Klaverns all over the state, 
making talks on Catholicism. What kinds of talks? Well, just the 
history of the church and what we know about it. Not to talk on 
politics. Hugo could make the best anti-Catholic speech you ever 
heard.' . . . Then Imperial Wizard Hiram Evans awarded Black the very 
rare honor of a golden `grand passport.' Upon receiving this, Black 
spoke of his gratitude for the Klan's support: `I know that without the 
support of the members of this organization I would not have been 
called, even by my enemies, the ``Junior Senator from Alabama.'' 
(Applause.) I realize that I was elected by men who believe in the 
principles that I have sought to advocate and which are the principles 
of this organization.' . . . Black had long . . . sworn, under the 
light of flaming crosses, to preserve `the sacred constitutional 
rights' of `free public schools' and `separation of church and state.' 
Subsequently, he had administered this oath to thousands of others in 
similar ceremonies.'').
    \59\ See Philip Hamburger, Separation of Church and State (Harvard 
University Press 2002) at 429, 454-55, 461 (``Hugo Black's association 
with the Klan became public little more than a decade later, in 1937, 
when President Franklin Delano Roosevelt appointed Black as Associate 
Justice of the Supreme Court . . . The Supreme Court finally 
interpreted the First and Fourteenth Amendments to require separation 
of church and state in 1947, in the New Jersey case of Everson v. Board 
of Education of the Township of Ewing . .. Only in 1947 [,] 
did the Court clearly make separation the basis for a decision--opining 
that the First Amendment required separation, that the Fourteenth 
Amendment applied it to the states, and that New Jersey's subsidized 
school busing for both public schools and private schools did not 
violate the First and Fourteenth Amendments. In this way, the Court 
recognized separation as part of American constitutional law . . . 
Justice Black, writing for the majority, declared that separation was 
the constitutional standard: `In the words of Jefferson, the clause 
against establishment of religion by law was intended to erect a wall 
of separation between church and State.''').
---------------------------------------------------------------------------

                                HEARINGS

    The Committee's Subcommittee on the Constitution held a 
hearing on H.R. 2679 on June 22, 2006. Testimony was received 
from Rees Lloyd, Commander, District 21, The American Legion; 
Mathew D. Staver, Founder and Chairman, Liberty Counsel & 
Interim Dean, LibertyUniversity School of Law; Marc Stern, 
General Counsel, American Jewish Congress; and Professor Patrick Garry, 
Associate Professor of Law, University of South Dakota School of Law, 
with additional material submitted by individuals and organizations.

                        Committee Consideration

    On July 26, 2006, and September 7, 2006, the Committee met 
in open session and considered H.R. 2679. On September 7, 2006, 
the Committee met in open session and ordered favorably 
reported the bill H.R. 2679 with an amendment by voice vote, a 
quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the committee's 
consideration of H.R. 2679.
    1. An amendment was offered by Mr. Nadler to except from 
the bill cases ``involving religious coercion.'' The amendment 
was defeated by a rollcall vote of 10 ayes to 17 nays.

                             Rollcall No. 1
------------------------------------------------------------------------
                                       Ayes         Nays       Present
------------------------------------------------------------------------
MR. HYDE.........................
MR. COBLE........................                         X
MR. SMITH........................                         X
MR. GALLEGLY.....................
MR. GOODLATTE....................
MR. CHABOT.......................                         X
MR. LUNGREN......................                         X
MR. JENKINS......................                         X
MR. CANNON.......................                         X
MR. BACHUS.......................                         X
MR. INGLIS.......................                         X
MR. HOSTETTLER...................                         X
MR. GREEN........................
MR. KELLER.......................                         X
MR. ISSA.........................
MR. FLAKE........................
MR. PENCE........................                         X
MR. FORBES.......................                         X
MR. KING.........................                         X
MR. FEENEY.......................                         X
MR. FRANKS.......................                         X
MR. GOHMERT......................                         X

 MR. CONYERS......................            X
MR. BERMAN.......................
MR. BOUCHER......................
MR. NADLER.......................            X
MR. SCOTT........................            X
MR. WATT.........................            X
MS. LOFGREN......................            X
MS. JACKSON LEE..................            X
MS. WATERS.......................
MR. MEEHAN.......................
MR. DELAHUNT.....................
MR. WEXLER.......................
MR. WEINER.......................            X
MR. SCHIFF.......................            X
MS. SANCHEZ......................            X
MR. VAN HOLLEN...................
MRS. WASSERMAN SCHULTZ...........            X

MR. SENSENBRENNER, CHAIRMAN......                         X
                                  --------------------------------------
    TOTAL........................           10           17
------------------------------------------------------------------------

    2. An amendment was offered by Mr. Scott to except from the 
bill cases ``involving sectarian prayer conducted by a 
governmental official in a public school.'' The amendment was 
defeated by a rollcall vote of 12 ayes to 19 nays.

                             Rollcall No. 2
------------------------------------------------------------------------
                                       Ayes         Nays       Present
------------------------------------------------------------------------
MR. HYDE.........................
MR. COBLE........................                         X
MR. SMITH........................                         X
MR. GALLEGLY.....................                         X
MR. GOODLATTE....................
MR. CHABOT.......................                         X
MR. LUNGREN......................                         X
MR. JENKINS......................                         X
MR. CANNON.......................                         X
MR. BACHUS.......................                         X
MR. INGLIS.......................                         X
MR. HOSTETTLER...................                         X
MR. GREEN........................                         X
MR. KELLER.......................                         X
MR. ISSA.........................                         X
MR. FLAKE........................
MR. PENCE........................
MR. FORBES.......................                         X
MR. KING.........................                         X
MR. FEENEY.......................                         X
MR. FRANKS.......................                         X
MR. GOHMERT......................                         X

 MR. CONYERS......................            X
MR. BERMAN.......................            X
MR. BOUCHER......................
MR. NADLER.......................            X
MR. SCOTT........................            X
MR. WATT.........................            X
MS. LOFGREN......................            X
MS. JACKSON LEE..................            X
MS. WATERS.......................
MR. MEEHAN.......................
MR. DELAHUNT.....................
MR. WEXLER.......................
MR. WEINER.......................            X
MR. SCHIFF.......................            X
MS. SANCHEZ......................            X
MR. VAN HOLLEN...................            X
MRS. WASSERMAN SCHULTZ...........            X

MR. SENSENBRENNER, CHAIRMAN......                         X
                                  --------------------------------------
    TOTAL........................           12           19
------------------------------------------------------------------------

    3. An amendment was offered by Ms. Jackson-Lee that would 
allow attorney's fees to be available to prevailing parties in 
Establishment Clause cases to the same extent that attorney's 
fees are available to prevailing parties in cases involving the 
unconstitutional taking of private property. The amendment was 
defeated by a rollcall vote of 11 ayes to 19 nays.

                             Rollcall No. 3
------------------------------------------------------------------------
                                       Ayes         Nays       Present
------------------------------------------------------------------------
MR. HYDE.........................
MR. COBLE........................                         X
MR. SMITH........................                         X
MR. GALLEGLY.....................                         X
MR. GOODLATTE....................
MR. CHABOT.......................                         X
MR. LUNGREN......................                         X
MR. JENKINS......................                         X
MR. CANNON.......................                         X
MR. BACHUS.......................                         X
MR. INGLIS.......................
MR. HOSTETTLER...................                         X
MR. GREEN........................                         X
MR. KELLER.......................                         X
MR. ISSA.........................                         X
MR. FLAKE........................                         X
MR. PENCE........................
MR. FORBES.......................                         X
MR. KING.........................                         X
MR. FEENEY.......................                         X
MR. FRANKS.......................                         X
MR. GOHMERT......................                         X
MR. CONYERS......................            X
MR. BERMAN.......................            X
MR. BOUCHER......................
MR. NADLER.......................            X
MR. SCOTT........................            X
MR. WATT.........................            X
MS. LOFGREN......................            X
MS. JACKSON LEE..................            X
MS. WATERS.......................
MR. MEEHAN.......................
MR. DELAHUNT.....................
MR. WEXLER.......................
MR. WEINER.......................            X
MR. SCHIFF.......................            X
MS. SANCHEZ......................
MR. VAN HOLLEN...................            X
MRS. WASSERMAN SCHULTZ...........            X

MR. SENSENBRENNER, CHAIRMAN......                         X
                                  --------------------------------------
    TOTAL........................           11           19
------------------------------------------------------------------------

    4. An amendment was offered by Mr. Nadler that would except 
from the bill cases ``involving a declaration of an official 
religion.'' The amendment was defeated by a rollcall vote of 12 
ayes to 20 nays.

                             Rollcall No. 4
------------------------------------------------------------------------
                                       Ayes         Nays       Present
------------------------------------------------------------------------
MR. HYDE.........................
MR. COBLE........................                         X
MR. SMITH........................                         X
MR. GALLEGLY.....................                         X
MR. GOODLATTE....................
MR. CHABOT.......................                         X
MR. LUNGREN......................                         X
MR. JENKINS......................                         X
MR. CANNON.......................                         X
MR. BACHUS.......................                         X
MR. INGLIS.......................                         X
MR. HOSTETTLER...................                         X
MR. GREEN........................                         X
MR. KELLER.......................                         X
MR. ISSA.........................                         X
MR. FLAKE........................                         X
MR. PENCE........................
MR. FORBES.......................                         X
MR. KING.........................                         X
MR. FEENEY.......................                         X
MR. FRANKS.......................                         X
MR. GOHMERT......................                         X

 MR. CONYERS......................            X
MR. BERMAN.......................            X
MR. BOUCHER......................
MR. NADLER.......................            X
MR. SCOTT........................            X
MR. WATT.........................            X
MS. LOFGREN......................            X
MS. JACKSON LEE..................            X
MS. WATERS.......................
MR. MEEHAN.......................            X
MR. DELAHUNT.....................
MR. WEXLER.......................
MR. WEINER.......................            X
MR. SCHIFF.......................            X
MS. SANCHEZ......................
MR. VAN HOLLEN...................            X
MRS. WASSERMAN SCHULTZ...........            X

 MR.SENSENBRENNER, CHAIRMAN.......                         X
                                  --------------------------------------
    TOTAL........................           12           20
------------------------------------------------------------------------

    5. An amendment was offered by Mr. Scott that would except 
from the bill cases in which the court find that the defendant 
knowingly disobeyed a lawful order of the court. The amendment 
was defeated by a rollcall vote of 5 ayes to 17 nays.

                             Rollcall No. 5
------------------------------------------------------------------------
                                       Ayes         Nays       Present
------------------------------------------------------------------------
MR. HYDE.........................
MR. COBLE........................                         X
MR. SMITH........................                         X
MR. GALLEGLY.....................
MR. GOODLATTE....................
MR. CHABOT.......................                         X
MR. LUNGREN......................                         X
MR. JENKINS......................                         X
MR. CANNON.......................                         X
MR. BACHUS.......................                         X
MR. INGLIS.......................                         X
MR. HOSTETTLER...................                         X
MR. GREEN........................
MR. KELLER.......................                         X
MR. ISSA.........................                         X
MR. FLAKE........................
MR. PENCE........................                         X
MR. FORBES.......................                         X
MR. KING.........................                         X
MR. FEENEY.......................                         X
MR. FRANKS.......................                         X
MR. GOHMERT......................               ...........

 MR. CONYERS......................            X
MR. BERMAN.......................
MR. BOUCHER......................
MR. NADLER.......................
MR. SCOTT........................            X
MR. WATT.........................            X
MS. LOFGREN......................
MS. JACKSON LEE..................
MS. WATERS.......................
MR. MEEHAN.......................
MR. DELAHUNT.....................
MR. WEXLER.......................
MR. WEINER.......................            X
MR. SCHIFF.......................            X
MS. SANCHEZ......................
MR. VAN HOLLEN...................
MRS. WASSERMAN SCHULTZ...........

 MR.SENSENBRENNER, CHAIRMAN.......                         X
                                  --------------------------------------
    TOTAL........................            5           17
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2679, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                                September 11, 2006.
Hon. F. James Sensenbrenner,
Chairman, Committee on the Judiciary,
U.S. House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2679, the 
Veterans' Memorials, Boy Scouts, Public Seals, and Other Public 
Expressions of Religion Protection Act of 2006.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Daniel 
Hoople.
            Sincerely,
                                          Donald B. Marron,
                                                   Acting Director.
    Enclosure

H.R. 2679--Veterans' Memorials, Boy Scouts, Public Seals, and Other 
        Public Expressions of Religion Protection Act of 2006

    H.R. 2679 would prevent federal courts from awarding 
monetary relief to parties claiming violations of the 
Constitutional prohibition on the establishment of religion by 
federal, state, or local governments. In addition, parties who 
have prevailed on claims of such violations could no longer be 
awarded attorneys' fees and expenses. Because few suits are 
brought against the federal government for such violations, CBO 
expects that enacting H.R. 2679 would have no significant 
effect on the federal budget.
    H.R. 2679 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would impose no 
costs on state, local, or tribal governments. H.R. 2679 would 
impose new private-sector mandates, as defined in UMRA, on 
certain individuals and certain attorneys. Based on information 
from government and other sources, CBO expects that the direct 
cost of those mandates would fall below the annual threshold 
established by UMRA for private-sector mandates ($128 million 
in 2006, adjusted annually for inflation).
    H.R. 2679 would impose a new private-sector mandate on 
certain individuals by prohibiting them from receiving monetary 
damages and costs in certain lawsuits involving a violation of 
a prohibition in the Constitution against the establishment of 
religion. Because the bill would eliminate existing rights to 
seek compensation for injury caused by certain acts, it would 
impose a private-sector mandate. The direct cost of the mandate 
would be the forgone net value of awards and settlements in 
such claims. The bill also would prohibit awards for attorneys' 
fees from lawsuits involving a violation of a prohibition in 
the Constitution against the establishment of religion. Under 
current law, the courts may award the prevailing party a 
reasonable attorney's fee. The direct cost of the mandate would 
be the net loss of revenue that certain attorneys would 
experience as a result of the prohibition on fee awards.
    The CBO staff contact for this estimate is Daniel Hoople. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
2679, the ``Veterans' Memorials, Boy Scouts, Public Seals, and 
Other Public Expressions of Religion Protection Act of 2006,'' 
will prevent the legal extortion that currently requires local, 
State and the Federal government, to accede to demands for the 
removal of religious text, imagery, and references when such 
removal is not compelled by the Constitution.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clause 3 of the 
Constitution; article I, section 8, clause 9 of the 
Constitution; article III, section 1, clause 1 of the 
Constitution; and article III, section 2, clause 2 of the 
Constitution.

               Section-by-Section Analysis and Discussion

    The following discussion describes the bill as reported by 
the Committee.

Sec. 1. Short title

    This section sets forth the title of the bill 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

    Section 2 amends 42 U.S.C. Sec. 1988 such that attorneys' 
fees could not be awarded to prevailing parties in 
Establishment Clause cases. This section also amends 42 U.S.C. 
Sec. 1983 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, 
which means the only relief a court could order in those cases 
is that a State official or local government stop doing 
whatever it was doing that was an alleged violation of the 
Establishment Clause or simply declare what the law is. (That 
is, under Section 2 of the bill, a court could not order 
monetary damages or attorneys' fees in Establishment Clause 
cases.) The Establishment Clause cases covered by Section 2 
include cases challenging a veterans' memorial's containing 
religious words or imagery; a public building's containing 
religious words or imagery; the presence of religious words or 
imagery in the official seals of States and localities; the 
chartering of Boy Scout units by components of States and 
localities; and the Boy Scouts' using public buildings.

Sec. 3. Limitations on certain lawsuits against the United States and 
        federal officials

    Section 3 of H.R. 2679 applies the same principles embodied 
in Section 2 to Establishment Clause cases brought against the 
federal government. Section 3 creates a new section in the U.S. 
Code that provides that a court shall not award attorneys fees 
or expenses to the prevailing party in Establishment Clause 
cases brought against the United States or any agency or any 
official of the United States acting in his or her official 
capacity, and that the remedies available with respect to such 
a claim shall be limited to injunctive or declaratory relief. 
The Establishment Clause cases covered by this section include 
cases challenging a veterans' memorial's containing religious 
words or imagery; a Federal building's containing religious 
words or imagery; the presence of religious words or imagery in 
the official seal of the United States and in its currency and 
official Pledge; 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

    Section 4 of the bill provides that the Act and any 
amendments made by the Act take effect on the date of enactment 
of the Act and apply to any case that is pending on such date 
of enactment or is commenced on or after such date of 
enactment.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                 REVISED STATUTES OF THE UNITED STATES


                          T I T L E   X I I I

                             THE JUDICIARY.




           *       *       *       *       *       *       *
                      C H A P T E R  T W E L V E.

PROVISIONS COMMON TO MORE THAN ONE COURT OR JUDGE.

           *       *       *       *       *       *       *


  Sec. 722. (a) * * *
  (b) In any action or proceeding to enforce a provision of 
sections 1977, 1977A, 1978, 1979, 1980, and 1981 of the Revised 
Statutes, title IX of Public Law 92-318, the Religious Freedom 
Restoration Act of 1993, the Religious Land Use and 
Institutionalized Persons Act of 2000, title VI of the Civil 
Rights Act of 1964, or section 40302 of the Violence Against 
Women Act of 1994, the court, in its discretion, may allow the 
prevailing party, other than the United States, a reasonable 
attorney's fee as part of the costs, except that in any action 
brought against a judicial officer for an act or omission taken 
in such officer's judicial capacity such officer shall not be 
held liable for any costs, including attorney's fees, unless 
such action was clearly in excess of such officer's 
jurisdiction. 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.

           *       *       *       *       *       *       *


T I T L E   X X I V

           *       *       *       *       *       *       *


CIVIL RIGHTS.

           *       *       *       *       *       *       *


  Sec. 1979. (a) 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.
  (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.

           *       *       *       *       *       *       *


                           Markup Transcript




                            BUSINESS MEETING

                        WEDNESDAY, JULY 26, 2006

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, I now call up 
the bill H.R. 2679, the Public Expression of Religion Act of 
2005, for purposes of markup and move its favorable 
recommendation to the House.
    [The bill, H.R. 2679, follows:]
    
    
    Chairman Sensenbrenner. Without objection, the bill will be 
considered as read and open for amendment at any point. And the 
Chair recognizes the author of this legislation, the gentleman 
from Indiana, Mr. Hostettler, for 5 minutes to explain the 
bill.
    Mr. Hostettler. Thank you, Mr. Chairman. Mr. Chairman, H.R. 
2679, the Public Expression of Religion Act, would amend 42 USC 
Sections 1983 and 1988 to prevent the use of the legal system 
in a manner that extorts behavior from State and local 
governments and inhibits their constitutional actions.
    Title 42 USC Sec. 1983 is the Federal statute that allows 
people to sue State and local governments for alleged 
constitutional violations of their individual rights. Title 42 
USC Sec. 1988 is the Federal fee shifting statute that allows 
prevailing plaintiffs in lawsuits filed under 1983 to be 
awarded attorney's fees from the defendant.
    Consequently, under 42 USC 1983, parties can sue State and 
local governments claiming their individual rights were 
violated and demand attorney's fees in the case under 42 USC--
--
    Mr. Nadler. Mr. Chairman, I can't hear him. Maybe the 
microphone isn't working or something.
    Mr. Hostettler. I will move closer.
    Chairman Sensenbrenner. The gentleman from Indiana will 
enunciate clearly.
    Mr. Hostettler. Consequently, under 42 USC 1983, parties 
can sue State and local governments, claiming their individual 
rights were violated, and demand attorney's fees in the case 
under 42 USC 1988, if they prevail at any stage of judicial 
review.
    Because of these laws, the threat of litigation against 
State and local officials alleging that they have violated the 
establishment clause often forces States and localities to cave 
to demands to remove even the smallest religious references on 
public property.
    Most localities do not have the money to pay not only their 
fees but also the plaintiff's attorney's fees, if they receive 
an adverse judgment. PERA addresses this problem by amending 42 
USC 1983 to permit only injunctive relief in cases alleging 
violations of the establishment clause.
    PERA also amends 42 USC 1988 to disallow the award of 
attorney's fees to prevailing parties in cases alleging 
violations of the establishment clause.
    I first introduced the Public Expression of Religion Act in 
the 105th Congress, after I realized that the imposition of 
attorney's fees in establishment clause cases were jeopardizing 
our constituents' constitutional rights, causing them, in many 
cases, to choose between defending their rights or giving up in 
the face of exorbitant attorney's fees.
    What makes this even more difficult for States and 
localities is that the jurisprudence in establishment clause 
cases is about as clear as mud. Different districts and even 
the Supreme Court itself flip-flops on issues.
    For instance, last year, the Supreme Court handed down two 
Ten Commandments decisions on the same day, with a different 
decision in each. In the Van Orden case, the court applied the 
Marsh test of historical perspective to determine that the Ten 
Commandments in a public venue was constitutional, while the 
McCreary case used the Lemon test to determine that the Ten 
Commandments in a public venue was unconstitutional.
    It is about as clear as mud. Our constituents who are being 
threatened with these lawsuits know that even if they are 
right, they will still have to pay their own attorney's fees to 
take the gamble that 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 liberal organizations nor 
do they look kindly on the fact that their constitutional 
rights have become subject to the whims of unelected judges, 
but that issue is for another 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 attorney's fees awarded to them is icing on 
the cake.
    It is a win-win situation for them right now. On the other 
hand, cities and States have to consider where the attorney's 
fees would come from if they lose their case and have to pay 
the ACLU. Where would that money come from? From the taxpayers.
    States and localities have limited resources with which to 
fight court battles, thus another reason that they are 
capitulating before they even go to court. This was the case 
recently with the Los Angeles County seal. The ACLU threatened 
to sue Los Angeles County if they did not remove the small 
cross from the county seal. The cross symbolized L.A.'s 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 
attorney's fees to the ACLU.
    In the end, the L.A. County commissions, in a 3-2 vote, 
decided to ignore the will of the people of Los Angeles and pay 
to change the seal instead of paying to go to court. They had 
been advised by their attorneys that if they lost in court, 
they would not only have to change the seal, but they would 
additionally have to pay attorney's fees.
    Mr. Chairman, I believe it is time to bring this extortion 
to an end. The Public Expression of Religion Act would make 
sure that these cases are tried on their merits and are not 
merely used to extort money either via settlements or 
attorney's fees.
    I would urge my colleagues to support the bill and the 
amendment in the nature of a substitute that I will soon offer.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler, is recognized for 5 minutes.
    Mr. Nadler. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Mr. Chairman, this bill would, for the first 
since the enactment in 1871 of Section 1983, which bars the 
deprivation of any rights, privileges or immunities secured by 
the Constitution and laws, under color of law, that is to say, 
by a State official, this bill would, for the first time, 
single out a particular group of individuals whose 
constitutional rights have been violated by the government and 
deny them remedies available to everyone else under Section 
1983.
    In effect, it disfavors the establishment of religion 
clause, because it says that people who have proven the 
violation of their constitutional rights under the 
establishment clause shall be denied remedies available to 
anyone else who proves violation of any other constitutional 
right.
    In more than a century, nothing like this has ever been 
done. I have checked with CRS, and I ask unanimous consent to 
place their memo to that effect in the record.
    Chairman Sensenbrenner. Without objection.
    [The memo follows:]
    
    
    Mr. Nadler. This bill is aimed at people who have proved in 
court that the government has violated their constitutional 
rights. By denying them the normal relief of monetary damages 
and the normal ability to petition for attorney's fees, we 
would not just deny them their day in court, but we would be 
telling government officials everywhere that Congress thinks it 
is okay to violate people's religious liberty with impunity.
    It is especially galling that everyone here, well, almost 
everyone has taken a victory lap for reauthorizing the Voting 
Rights Act, in which we enhance the attorney's fees provisions 
by adding a right to be awarded the cost of extra witnesses.
    As this 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 not people who have been victimized by deprivation of 
their constitutional rights under the establishment clause. 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 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 Governor George 
Wallace's infamous 1963 inaugural speech, in which he said, 
``From this day, from this hour, from this minute, we give the 
word of a race of honor that we will tolerate their boot in our 
faces 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 with the 
sponsors of this bill today or the notorious seven manifesto 
signed by Members of both houses, in defiance of the Supreme 
Court's school desegregation decisions. ``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 undertaken 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 raise this not to 
suggest that any Members of this House today are 
segregationists, far from it. I only recall the overheated 
rhetoric of a half-century ago to urge Members to take care 
with what they support.
    Unpopular minorities, and those are the people of these 
cases and decisions, and decisions defending the rights of 
unpopular minorities against the will of the majority have 
always inflamed passion. People have always questioned our 
system of checks and balances and especially the role of the 
independent judiciary.
    Recourse through an independent judiciary is bulwark of our 
liberties. We recognizes this by allowing people to go to court 
and force the government to respect their rights. We recognize 
this by allowing them to receive damages where the government 
has done 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 attorney's fees paid, so that people 
with valid claims will be able to go to court.
    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, the phrase has no meaning.
    The substitute lists certain cases the authors are 
particularly concerned about, but it is not limited to those 
cases. So it still means everything is covered.
    I want to lay to rest right now the red herring about 
veterans' gravestones. I know that many sincere people have 
been misled into believing the ACLU wants to use Section 1983--
--
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Nadler. I ask unanimous consent for 1\1/2\ additional 
minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Nadler. Thank you. I know that many sincere people have 
been misled into believing that the ACLU wants to use Section 
1983 to force the removal of the religious symbols from the 
individual gravestones of thousands of veterans across the 
nation and around the world.
    We received testimony from the American Legion to this 
effect and Members have received a great deal of mail on the 
subject. This assertion is a myth. If you are thinking of 
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 on 
their gravestones.
    I should also remind my friends that the one kind of relief 
this bill leaves standing is injunctive relief, precisely the 
kind of relief that you are afraid of. That is the one that 
gives the court the power to say, ``Take down the Ten 
Commandments monument.'' So if that is really what you are 
worried about, this bill would do absolutely nothing to stop 
that.
    It is an election year. The months leading up to elections 
have long been known as a silly season. We all understand that. 
But getting an earmark for a bridge to nowhere or something is 
one thing.
    Gutting the ability to have the court enforce the first 
amendment and saying that people who are injured, who prove 
that their first amendment rights under the establishment 
clause have been violated, should be entitled to less remedies 
and different remedies than those who prove their other 
constitutional rights have been violated is saying, in effect, 
that the establishment clause is less important than other 
rights and that is a road that we should not take.
    Leave the first amendment and our civil rights laws out of 
it.
    Chairman Sensenbrenner. The time of the gentleman has once 
again expired.
    The Chair recognizes the gentleman from Indiana, Mr. 
Hostettler, to offer an amendment in the nature of a 
substitute.
    The clerk will report the amendment.
    The Clerk. ``Amendment in the nature of a substitute to 
H.R. 2679, offered by Mr. Hostettler of Indiana. Strike all 
after the enacting clause and insert the following. Section 
1''----
    [The amendment offered by Mr. Hostettler follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read. And the gentleman from Indiana is 
recognized for 5 minutes.
    Mr. Hostettler. I thank the Chairman. Briefly, Mr. 
Chairman, at the suggestion of both majority and minority 
witnesses during the June 22 hearing on the Public Expression 
Religion Act, this amendment in the nature of a substitute 
would provide both injunctive and declaratory relief and would 
add declaratory relief, because injunctive relief was already 
possible under the underlying bill, as remedies in 
establishment clause cases under 42 USC 1983.
    This amendment would also apply the same principles 
embodied in my original bill to establishment clause cases 
brought against the Federal Government. This is a necessary 
addition to the bill, since even the Federal Government has 
given in to pressure from the ACLU and stopped the Pentagon, 
for example, from sponsoring the Boy Scouts.
    Religious words and symbols on Federal buildings are also 
prime targets for extortionist threats from some of these 
groups. My amendment in the nature of a substitute clarifies 
that this legislation, if signed into law, would apply to 
pending, as well as future cases.
    I hope my colleagues support this amendment in the nature 
of a substitute, and yield back.
    Chairman Sensenbrenner. Are there any second-degree 
amendments to the amendment in the nature of a substitute?
    For what purpose does the gentleman from New York, Mr. 
Nadler, seek recognition?
    Mr. Nadler. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. ``Amendment to the amendment in the nature of a 
substitute to H.R. 2679 offered by Mr. Nadler. Page 1, line 17, 
insert `except in a case involving religious coercion' after 
`religion.' Page 3, line 4, insert `except in a case involving 
religious coercion' after `relief.' ''
    [The amendment offered by Mr. Nadler follows:]
    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes in support of his amendment.
    Mr. Nadler. Thank you, Mr. Chairman. This amendment would 
allow, would exempt, in effect, from the provisions of this 
bill people who were subject to religious coercion to have all 
the remedies available under our civil rights law.
    What kind of religious coercion? For example, a teacher 
forcing a child to say a prayer of another faith. How about 
Jehovah's Witness children being expelled from school and 
charged with truancy for refusing to say the Pledge of 
Allegiance, in violation of their religious faith?
    That happened, until the Supreme Court put a stop to it in 
the 1943 case of Barnett v. West Virginia. How bout firing 
someone from a government job because they adhered to their own 
faith instead of that of the boss?
    We are not talking in this amendment about so-called 
voluntary school prayer or posting religious symbols, the Ten 
Commandants on the courthouse lawn or whatever. Those things 
don't force anyone to do anything.
    We are talking here about only direct religious coercion, 
``Say the prayer or you are expelled from school.'' ``Profess 
your boss's belief or you are fired.'' Now, those are, 
admittedly, I hope, fairly rare instances, but where they 
occur, there is no reason that, in those egregious cases where 
someone egregiously, under color of law, flouts the 
establishment clause to coerce somebody, that that victim 
should not have the right to attorney's fees and damages, like 
any other victim of a deprivation of civil rights under the 
color of law.
    So I hope that this amendment will be accepted, because we 
are not talking about what Mr. Hostettler is talking about. We 
are talking only about--which I would say is bad enough--but we 
are talking only about direct cases of religious coercion. And 
I hope nobody in this Committee would justify religious 
coercion or say that victims of it who prove it, that victims 
who prove religious coercion should get less remedies than 
people who prove other violations of their civil rights.
    I yield back.
    Mr. Hostettler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Indiana.
    Mr. Hostettler. Mr. Chairman, I rise in opposition to the 
amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Mr. Chairman, the concept of coercion is so 
vague that it has been used to find even voluntary recitations 
of the Pledge of Allegiance----
    Mr. Nadler. Mr. Chairman, I can't hear the gentleman.
    Mr. Hostettler. The concept of coercion is so vague that it 
has been used to find even voluntary recitations of the Pledge 
of Allegiance to be unconstitutional. For that reason, an 
identical amendment to the Pledge Protection Act was defeated 
here just a few weeks ago.
    This amendment should be similarly defeated. And I would 
just suggest once again to the gentleman from New York that 
injunctive relief is still a remedy and the main remedy that is 
sought by most plaintiffs in these cases. And given that 
injunctive relief and declaratory relief are allowed under the 
amendment in the nature of a substitute, that if there is, in 
fact, coercion, that, in fact, that coercion will be stopped as 
a result of civil rights laws that are on the books and will 
not be eliminated in any way by this bill.
    Mr. Nadler. Would the gentleman yield?
    Mr. Hostettler. I yield to the gentleman from New York.
    Mr. Nadler. Thank you. Well, coercion, under this 
amendment, would have to--since, under the bill, attorney's 
fees and damages are not available, except under my amendment 
for coercion, it would be an element of getting attorney's fees 
and getting damages. You have to prove that there was, in fact, 
coercion. Not a vague concept, but you have to prove--the court 
would have to find that there was coercion. In that case----
    Mr. Hostettler. Reclaiming my time. As the gentleman knows, 
in these cases, the courts have often found that a coercive 
environment has been created as the result of programs that 
allow for the voluntary recitation of the pledge, for example.
    So while the gentleman may have his idea of what the term 
``coercion'' means, that, in fact, the term is a term that will 
ultimately be decided by a court and that court can still find 
that this coercion is inconsistent with the establishment 
clause in order to end the activity, which is what the 
plaintiff desires and what all desired in these cases.
    So I would just remind the gentleman that while he may have 
a notion of what ``coercion'' is, that as he and I both don't 
sit on a Federal bench, that that will ultimately be left up to 
those judges and I would just as soon allow for that judge to 
stop a coercive activity or order the stopping of a coercive 
activity as a result of being tried in court and not the ACLU 
trying to coerce a local governmental entity that they know 
what coercion is and they know what a judge is going to call 
coercion and the case never sees the light of day in a Federal 
court.
    And I yield back the balance of time.
    Chairman Sensenbrenner. The question is on----
    Mr. Lungren. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Lungren.
    Mr. Lungren. Strike the requisite number of words.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Lungren. Could I ask the gentleman from New York, in 
terms of the issue of coercion, there are probably two 
different approaches to analyzing the term ``coercion.'' One, 
the Scalia approach, which is kind of straightforward what 
``coercion'' is and I would suggest the more expansive version 
of coercion exemplified by Justice Kennedy's comments in the 
case involving the prayer. I believe it was by a rabbi that was 
fairly secular prayer, but he felt that it created an 
atmosphere of coercion as a result of psychological coercion.
    I would be inclined to support the gentleman's amendment 
if, in some way, we were talking about what most of us would 
think of as the strict Scalia interpretation of coercion as 
opposed to the more expansive Justice Kennedy insight into it.
    So I would just ask the gentleman, what is his notion of 
coercion, as contained in his amendment? And I yield to the 
gentleman.
    Mr. Nadler. Thank you. My notion of coercion is as I gave 
the examples of the statement, probably a fairly narrower 
version of coercion. Of course, as Mr. Hostettler points out I 
am not on the Supreme Court nor are you.
    But the legislative history, and, surprise, the Supreme 
Court looks at legislative history. Even if Scalia doesn't, 
most of the others do, would certainly suggest a narrower 
version.
    Mr. Lungren. I appreciate it, and I reclaim my time. If I 
could be convinced the Supreme Court would look at this with 
that in mind, I would be inclined to support the gentleman's 
amendment, because I think he is going at exactly what we are 
talking about.
    My fear is that with the latest review by the Supreme 
Court, at least Justice Kennedy, in my judgment, has expanded 
the notion of what coercion is.
    Mr. Watt. Would the gentleman yield?
    Mr. Lungren. Yes, I will be happy to.
    Mr. Watt. I am just wondering whether either Scalia's 
version or Kennedy's version represents the majority of them. 
What was the decision in the case? That would be the 
definition. Was it Kennedy's opinion that prevailed or was it 
Scalia's opinion that prevailed?
    Mr. Lungren. It was Kennedy's opinion, Lee v. Weisman, it 
was the one where, as I understand it, there was a general--
well, there was a prayer given by someone who was a rabbi, but 
it was a prayer that was really not to anybody but God and it 
wasn't the Jewish God, the Christian God, the Muslim God, it 
was to God, and they found that coercive in terms of 
psychological coercion.
    And that is the problem I have. I understand what the 
gentleman from New York is trying to do. I think he is probably 
where we would like to all be, but I think the gentleman from 
Indiana raises a legitimate point about how expansive this has 
become and that is the quandary I am in, and I was just trying 
to get some clarification, if there is any way we could nail it 
down.
    Mr. Watt. Would the gentleman yield again?
    Mr. Lungren. Yes.
    Mr. Watt. Would it help to put the word ``direct'' in front 
of ``religion?'' Just a thought.
    Mr. Lungren. I understand. I am thinking. Well, I haven't 
resolved my own question, I am sorry. I was just trying to see 
if we could in some way. And I yield back the balance of my 
time.
    Chairman Sensenbrenner. The question is on the Nadler 
amendment to the Hostettler amendment in the nature of a 
substitute.
    Those in favor will say ``aye.''
    Opposed, ``no.''
    The noes appear to have it.
    Mr. Nadler. Record vote.
    Chairman Sensenbrenner. Record vote is requested. Those in 
favor of the Nadler amendment in the second-degree to the 
Hostettler amendment in the nature of a substitute will, as 
your names are called, answer, ``aye''; those opposed, ``no.''
    And the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Inglis?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    [No response.]
    The Clerk. Mr. Issa?
    [No response.]
    The Clerk. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney?
    Mr. Feeney. Mr. Feeney, no.
    Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Mr. Schiff?
    Mr. Schiff. Pass.
    The Clerk. Mr. Schiff, pass.
    Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Van Hollen?
    [No response.]
    The Clerk. Mrs. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Mrs. Wasserman Schultz, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
your vote? The gentleman from Florida, Mr. Keller.
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Chairman Sensenbrenner. The gentleman from South Carolina, 
Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will--the gentleman from 
Tennessee, Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? The clerk will report.
    The Clerk. Mr. Chairman, there are 10 ayes and 17 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further second-degree amendments to the 
Hostettler substitute? The gentleman from Virginia, Mr. Scott, 
for what purpose do you seek recognition?
    Mr. Scott. Mr. Chairman, I have an amendment at the desk, 
Scott No. 2.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. ``Amendment to the amendment in the nature of a 
substitute to H.R. 2679, offered by Mr. Scott. Page 1, line 17, 
insert `except in a case involving sectarian prayer conducted 
by a governmental official in a public school' after 
`religion.' Page 3, line 4, insert `except in a case involving 
sectarian prayer conducted by a government official in a public 
school' after `relief.' ''
    [The amendment offered by Mr. Scott follows:]
    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. First, Mr. Chairman, I would ask unanimous 
consent that the bill number on the amendment be corrected.
    Chairman Sensenbrenner. Without objection.
    Mr. Scott. Thank you. Mr. Chairman, my amendment would 
create an exception for those instances which have been clearly 
determined to be unconstitutional by the Supreme Court, namely, 
where establishment claims involve sectarian prayer conducted 
by a government official in a public school.
    The U.S. Supreme Court has been vigilant in forbidding 
public schools and other agencies of government to interfere 
with Americans' constitutional right to follow their own 
consciences when it comes to religion.
    In 1962, the justices ruled that official prayer had no 
place in public education. This decision is widely 
misunderstood today. The court did not rule that the students 
are forbidden to pray on their own. The justices merely said 
that government officials had no business composing a prayer 
for students to recite.
    And the Engels v. Vitale case came about because parents in 
New York challenged a prayer written by the New York education 
board. Those Christian, Jewish and Unitarian parents did not 
want their children subjected to State-sponsored devotions. The 
high court agreed that the scheme amounted to a government 
promotion of religion.
    The following year, 1963, the Supreme Court handed down 
another important ruling involving public schools, in Abington 
Township School District, the court declared that school-
sponsored Bible reading and recitation of the Lord's Prayer was 
unconstitutional.
    It is important to remember that these decisions of the 
Supreme Court did not remove prayer from public school. The 
court removed only government-sponsored worship. The public 
school students always had and have a right to pray on their 
own.
    And, also, the Supreme Court did not rule against the 
official prayer and Bible reading cases in public schools out 
of hostility to religion. Rather, the justices held that these 
practices were examples of unconstitutional government 
sponsorship of religion, violating the establishment clause.
    Nothing in the 1962 or 1963 rulings makes it unlawful for 
public school students to pray or read the Bible or say grace 
over their own food on a voluntary basis. Later decisions have 
made this even clearer. In 1990, the high court ruled 
specifically that high school students may form clubs that meet 
during non-instructional time to pray, read religious text or 
discuss religious topics, if other student groups are allowed 
to meet.
    The high court also made it clear time and time again that 
objective study about religion in public schools is legal and 
appropriate. Many public schools offer courses in comparative 
religion, Bible as literature or the role of religion in the 
world in U.S. history. As long as the approach is objective, 
balanced and non-devotional, these classes have been approved.
    In short, public schools' approach to religion must have a 
legitimate educational purpose, not a devotional one. Public 
schools should not be in the business of preaching to students 
or trying to persuade them to adopt certain religious beliefs. 
Parents, not school officials, are responsible for overseeing a 
young person's religious upbringing. This is not a 
controversial principal. In fact, most parents would demand 
these basic rights.
    Mr. Chairman, my amendment is narrowly drafted so it 
addresses only those instances when sectarian prayers are 
composed and recited by a government official in a public 
school, thereby falling into a category of government-sponsored 
religion, which has consistently been deemed unconstitutional 
by our highest court.
    We shouldn't require the victims of this practice to foot 
the bill for correcting a clear constitutional violation. So I 
would urge my colleagues to support the amendment.
    I yield back.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Indiana seek recognition?
    Mr. Hostettler. Mr. Chairman, I move to strike the last 
word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Mr. Chairman, I rise in opposition to the 
amendment. Let me reiterate the purpose of the underlying 
legislation and the amendment in the nature of a substitute.
    The amendment in the nature of a substitute, as well as the 
underlying bill, is not--the purpose is not to eliminate the 
establishment clause cases from being adjudicated. In fact, it 
is just the opposite. It will allow for more adjudication of 
establishment clause cases to go forward and, as a result of 
that, the establishment clause doctrine may be made more 
clearly than is the case today.
    The gentleman from Virginia eloquently elaborates on all 
the various cases, several of the various cases that make up 
the jurisprudence in this area that testimony from 
constitutional scholars before the Subcommittee told us was one 
of the most unclear areas of jurisprudence that there is in 
constitutional law.
    And so the question ultimately is for the individuals 
involved in the cases to take the cases to court. The 
gentleman's amendment is unnecessary, because as he related 
earlier on in his discussion of the amendment, that, for 
example, in 1962, prior to the enactment of the attorney's fee 
shifting statute put in place in 1976, the Court found that the 
voluntary recitation of a prayer composed by school officials 
was unconstitutional.
    Prior to the attorney's fee shifting bill passed in 1976, 
the United States Supreme Court found in 1963 that the 
voluntary reading of scripture during a public school formal 
setting was a violation of the establishment clause and was 
ended as a result of that.
    So the legislation does not end the remedies that are 
available to plaintiffs that wish to stop what the court 
ultimately deems is an unconstitutional act. But this amendment 
would continue the chilling effect, the demise of which is the 
purpose of the underlying legislation.
    It is my desire that these cases actually go to court and 
that behind closed doors, the ACLU and others do not get the 
government entity, the school board, the county commissioners 
or whoever, to capitulate with the chilling effect of the 
specter of attorney's fees and damages. These cases should go 
to court.
    This amendment offered by the gentleman from Virginia would 
continue this process of allowing these cases to be determined 
behind closed doors and not in the sunshine of the Federal 
courthouse and that is why I oppose the amendment and ask my 
colleagues likewise to oppose it.
    Yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the Scott 
amendment to the Hostettler amendment in the nature of a 
substitute.
    Those in favor will say ``aye.''
    Opposed, ``no.''
    The noes appear to have it. The noes have it.
    Rollcall is requested. Those in favor of the Scott 
amendment in the second-degree to the Hostettler amendment in 
the nature of a substitute will, as your names are called, 
answer, ``aye''; those opposed, ``no.''
    And the clerk will call the role.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Lungren?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Inglis?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Mr. Issa?
    [No response.]
    The Clerk. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman?
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Mrs. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Mrs. Wasserman Schultz, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote? The gentleman from California, Mr. Issa.
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Lungren.
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Gohmert.
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Chairman Sensenbrenner. The gentleman from South Carolina, 
Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 12 ayes and 19 nays.
    Chairman Sensenbrenner. The amendment is not agreed to.
    Are there further amendments in the second-degree to the 
amendment in the nature of a substitute offered by the 
gentleman from Indiana, Mr. Hostettler?
    For what purpose does the gentlewoman from Texas, Ms. 
Jackson Lee, seek recognition?
    Ms. Jackson Lee. Mr. Chairman, I have an amendment at the 
desk, No. 334, as altered.
    Chairman Sensenbrenner. The clerk will report the altered 
version of 334.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    The Clerk. ``Amendment to the amendment in the nature of a 
substitute to H.R. 2679, offered by Ms. Jackson Lee of Texas. 
Page 2, strike lines 15 through''----
    [The amendment offered by Ms. Jackson Lee follows:]
      
      

  


    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    The gentleman from North Carolina, does he wish to reserve 
a point of order?
    Okay, the gentlewoman from Texas is recognized for 5 
minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. It has 
been interesting to listen to this debate and, again, it is 
important--several points and I guess the first would be that 
maybe Mr. Hostettler and myself agree at least that the freedom 
of expression and the freedom of speech and the freedom of 
religion is crucial and an imperative responsibility of this 
Judiciary Committee of this Congress and certainly of the 
Constitution.
    My amendment is simple. It simply provides that attorney's 
fees may be awarded to a prevailing party in cases brought 
under the establishment clause pursuant to 42 USC 1988 to the 
same extent as such fees may be awarded to a prevailing party 
in cases as alleged and an unconstitutional taking of private 
property in violation of the fifth amendment to the United 
States Constitution.
    I think the distinguished gentleman from Indiana is well 
aware that this Committee, in a bipartisan manner, joined in 
making sure that those provisions stood, one, the protection of 
constituents against unconstitutional taking and that 
attorney's fees will be granted.
    We know that attorney's fees are not awarded in 
establishment clause cases or any other civil rights cases as a 
punitive measure. Rather, in any case where the government 
violates its citizens' civil or constitutional rights, the 
award of attorney's fees is reasonable compensation for the 
expenses of litigation awarded at the discretion of the court 
for having the right to have your grievance presented in a 
court of law.
    In fact, after intensive fact-finding, Congress determined 
that the amount of attorney's fees awarded after review by the 
court are adequate to attract competent counsel, but do not 
produce windfalls to attorneys.
    Mr. Chairman, the very basis of this bill closes the 
courthouse door to deserving litigants whose rights have been 
denied. 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 barred 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 good.
    My good friend, Mr. Nadler, recounted for us the history of 
the civil rights litigation. Might I just insert personal views 
of what happened? Many, many lawyers who go unnamed were part 
of the army of battlers and counsel during the civil rights 
era, if you will. The more well known was the NAACP legal 
defense fund and Thurgood Marshall. But many, many lawyers 
toiled in the vineyard against all odds, with no resources, 
representing constituents in cases that were either won or 
lost, those who defend Martin King and the FCLC members who 
were constantly incarcerated.
    If these kinds of prohibitions had been completely in 
place, certainly, their fees were not of any great consequence. 
But if we do not grow in the understanding that rights of 
individuals were continuously denied if we did not allow them 
to be availed of legal counsel.
    We do not, in this legislation, present ourselves in a way 
that allows rights to be protected. When it comes to the award 
of attorney's fees in taking cases or any other type of civil 
rights cases, we are denying that access if we deny meager 
minimal attorney's fees.
    We should not tolerate when the protections provided by the 
establishment clause is at stake.
    Mr. Chairman, my amendment necessarily affirms that freedom 
of religion is at least as important as private property. After 
all, what is religion if not a reflection upon the eternal and 
the divine and, as well, one's personal view.
    Our Constitution, which is the envy of the world, each of 
us is free to ponder and to seek an opportunity to be protected 
by that Constitution and now this particular legislation denies 
us the protection.
    My amendment presents a difficult choice between material 
possessions and spiritual comfort, but it is an amendment that 
raises the hypocritical question. Why are you taking away 
attorney's fees to allow someone to petition for their right to 
freedom of religion, why then is that more important than 
protecting the rights, material rights of individuals?
    I would hope my colleagues would support this amendment. 
And I yield back my time.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostettler.
    Mr. Hostettler. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Mr. Chairman, I rise in opposition to the 
amendment. The amendment effectively guts the bill. Under the 
bill now, property rights owners can, of course, receive 
attorney's fees when appropriate. This legislation does not 
eliminate attorney's fees recoupment by wronged parties.
    The legislation, if I can refocus our attention, we seem to 
have been talking about a lot of things that have very little 
to do with establishment clause cases and I guess that is 
appropriate, given the fact that establishment clause cases 
have no true meaning with regard to what the court will decide 
from one day or another.
    But this has to do with not eliminating access to our 
Federal court system, but by empowering access to our Federal 
court system. In our Subcommittee hearing, the witness for the 
minority essentially claimed that the attorney's fees awards 
need to stay in place so that these cases do not go into court.
    The gentleman, Mark Stern, in testifying for the minority, 
said, ``The end to the litigation came only after he,'' a 
particular school board member, ``was safely reelected and the 
school newspapers began to speculate on what the attorney's 
fees would be if the lawsuit was successful. It is a good thing 
that the fee statute exists, for it serves to provide a 
tangible disincentive for the manipulation of the Constitution 
for short-term advantage of unprincipled public officials. 
Eliminate that disincentive, and the inevitable, perhaps the 
desired result would be more open defiance of well settled 
constitutional principle.''
    Well, you can't have well-settled constitutional principle 
if you are not allowed to go to the courthouse, and that is 
what this amendment would do. It would gut the bill and would 
continue to allow the chilling effect on establishment clause 
cases to be felt by individuals that have been alleged of 
violating the establishment clause of the Constitution.
    This legislation needs to go through so that, in fact, the 
courthouse door can be open and that extortion and coercive 
measures used by some to keep these cases out of court will go 
to court.
    But, in fact, that may be the reason why there is such 
opposition to this legislation and that is because these cases 
will actually go to court. And if they go to court, in fact, 
the Supreme Court may find, especially as a result of the 
change in the Supreme Court, most recently, with the additions 
of Chief Justice Roberts and Justice Alito, that many of these 
cases, such as the McCreary County case in Kentucky, which was 
found in 2005 in favor of the ACLU, in McCreary County v. ACLU, 
that these cases may be, in fact, found in the opposite 
situation, that, in fact, McCreary County may be able to keep 
their Ten Commandments in place.
    But we will never know this if this sort of Damocles 
continues to hang over the heads of these public officials that 
say let's capitulate, let's not allow this case to go to court, 
and let's give in to what these folks want.
    These cases should be allowed to go to court so that the 
jurisprudence can be matured and that these folks can have 
their day, according to the Constitution.
    And I yield back the balance of my time, while I ask that 
Members defeat the amendment.
    Chairman Sensenbrenner. The gentlewoman from California, 
for what purpose do you seek recognition?
    Ms. Lofgren. To strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. I think that the amendment offered by my 
colleague, Ms. Jackson Lee, is fair. It simply says that fees 
that will be awarded under one of the amendments will be the 
same as another amendment. And I think to say that the first 
amendment is less valuable than the fifth amendment, surely, we 
would not want to say that as a Committee, and I would yield to 
the gentlelady.
    Ms. Jackson Lee. I thank the distinguished gentlelady. She 
has captured the essence and the intent and purpose of the 
amendment. And then I would also say to my colleague, who has 
made his argument, he is focusing on the government, I guess, 
the recipient of the lawsuit. He is not focusing on the 
petitioner.
    In addition, it needs to be clarified that under the fee 
structure that we are speaking of, it is the proponent of the 
victor that gets the attorney's fees, if you prevail. And so if 
you prevail, you would get attorney's fees. That means, of 
course, that there has been a determination that you have been 
treated unjustly.
    And, therefore, are we suggesting that what we will do is 
we will take away attorney's fees, so that we can block those 
who have been treated without justice from getting justice.
    That I don't understand, particularly as sacred a right as 
freedom of religion and the first amendment is, freedom of 
expression. We hold that to be very, very sacred. And if 
someone is coerced or if someone is denied their view of having 
a free right to participate and practice their religion, they 
take it to court in a fair-minded manner against any entity and 
they prevail, under our structure, they get attorney's fees.
    I don't understand why we have made the ACLU the whipping 
boy, if you will, of a system of justice which we have created 
under the constitutional system.
    I ask my colleagues to support this amendment, and I yield 
back.
    Ms. Lofgren. I would just say that if this amendment does 
not prevail, that I hope the next amendment will come from the 
other side to remove attorney's fees in taking cases under the 
fifth amendment. And I would yield back.
    Chairman Sensenbrenner. The question is on the Jackson Lee 
amendment in the second-degree to the amendment in the nature 
of a substitute by the gentleman from Indiana, Mr. Hostettler.
    Those in favor will say ``aye.''
    Those opposed will say ``no.''
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to.
    Are there further amendments?
    The Chair did not hear the gentlewoman say ``aye,'' but we 
will accommodate her request. Those in favor of the Jackson 
Lee----
    Ms. Jackson Lee. I am in the delirious. Thank you, Mr. 
Chairman. I would appreciate if I could----
    Chairman Sensenbrenner. I can understand that.
    The question is on the Jackson Lee amendment to the 
Hostettler amendment in the nature of a substitute. Those in 
favor will, as your names are called, answer, ``aye''; opposed, 
``no.''
    And the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Inglis?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman?
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Mrs. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Mrs. Wasserman Schultz, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? The gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Gohmert.
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 11 ayes and 19 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to. 
Are there further second-degree amendments?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you. I have an amendment at the desk, the 
last one.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. ``Amendment to the amendment in the nature of a 
substitute to H.R. 2679, offered by Mr. Nadler. Page 1, line 
17, insert `except in a case involving declaration of an 
official religion' after `religion.' Page 3, line 4, insert 
`except in a case involving a declaration of an official 
religion' after `relief.' ''
    [The amendment offered by Mr. Nadler follows:]
    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman. I won't take 5 
minutes.
    We have had many debates in this Committee about what 
constitutes an establishment of religion. Let's get to the 
heart of the matter. I don't think anyone would argue that it 
would be proper for a State to enact a declaration, to enact 
legislation declaring an official religion.
    If there is one thing we can all agree on, it is that there 
should not be a particular established church that receives all 
the legal benefits of such recognition to the exclusion and 
detriment of all others.
    I hope that cooler heads would prevail, but there is no 
shortage of people in this place who like to argue that this is 
a Christian nation. If this bill passes, you better just hope 
that some other denomination doesn't mean you to say that.
    Whatever people may think about monuments or graduation 
prayers, I hope there isn't a single Member of this Committee 
who would seriously argue that government should be allowed to 
declare an official faith and that an average citizen should 
not have the right to have the court right that wrong if some 
State or local government should be foolish enough to do so.
    So this amendment simply says that if there were a case of 
some government unit, city, State, involving a declaration of 
an official religion and if you prevailed in court that that 
was established religion, you could still get attorney's fees 
and damages, if any.
    I would hope that this amendment would be obvious in its 
acceptability. I thank you. I yield back the balance of my 
time.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostettler.
    Mr. Hostettler. Mr. Chairman, to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Mr. Chairman, I rise in opposition to the 
amendment because it is not clear to anyone what is an 
establishment and especially not the Supreme Court, given their 
determinations on two cases regarding the posting of the Ten 
Commandments on public property.
    This is, once again, an attempt to gut the bill. The 
establishment clause is actually--the courts are actually 
saying that the States, in some cases, are going one step 
farther----
    Mr. Nadler. Would the gentleman yield?
    Mr. Hostettler.--that they are, in fact, establishing a 
religion. And given that that jurisprudence is muddied, once 
again, avoiding the legal extortion that arises under that 
muddied understanding, even by the Supreme Court, of the 
establishment clause, is the basis for the bill that we are 
considering.
    I ask my colleagues----
    Mr. Nadler. Would the gentleman yield?
    Mr. Hostettler. I will yield to the gentleman.
    Mr. Nadler. I don't think you have read the amendment. The 
amendment doesn't talk about the establishment of religion. It 
talks about a declaration of an official religion. I think if 
any State or city council declared that Hinduism or Methodism 
or whatever is the official religion, that is what we are 
talking about, and I can't see how you could fail to support 
this amendment.
    Mr. Hostettler. Reclaiming my time. The fact is that the 
courts have decided that the Ten Commandments on public 
property is not only a declaration of religion, but is an 
establishment of religion, a much more proactive part on the 
part of the State to impose a religious doctrine, to establish 
a religion.
    And given the fact that the Court has said that 
establishment in Texas is not constituted by the Ten 
Commandments on public property, but that establishment is 
constituted as a result of the Ten Commandments on public 
property in Kentucky is the case, the amendment should be 
defeated, because the Court--because it guts the bill and it 
allows those individuals once more to say that the Court will 
probably find that a declaration of religion has been made, 
when, in fact, the Court may not find that a declaration of 
religion has been made. And that is why it should be defeated.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Mr. Chairman, move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, the amendment would appear to be 
unnecessary, because you couldn't think of a jurisdiction 
actually declaring a religion to be the official religion. 
However, I am aware of at least one State party platform, the 
Texas Republican platform, that actually declares this to be a 
Christian nation.
    And, therefore, if the legislators actually followed 
through on that, this amendment would actually be necessary. I 
would hope that we would adopt the amendment in case that 
happens.
    I yield back.
    Chairman Sensenbrenner. The question is on agreeing to the 
amendment----
    Mr. Van Hollen. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Maryland, Mr. 
Van Hollen.
    Mr. Van Hollen. Thank you, Mr. Chairman. This is an 
amazing----
    Chairman Sensenbrenner. For what purpose do you----
    Mr. Van Hollen. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Van Hollen. This is an amazing exercise and it comes 
under the rubric, I understand, of the American values agenda, 
and I can't think of anything that turns American history on 
its head more than what we are working on on these piece of 
legislation.
    If you go back to the founding of the country, the fact of 
the matter is so many people came here to escape religious 
prosecution in England. I mean, I urge all of you to read the 
laws in the early colonies.
    People came here to escape the Church of England and its 
insistence that people follow the dictates of the Church of 
England.
    Then many of the earlier settlers who came here to the 
colonies, although they were freed of the Anglican church, they 
did impose, in many of the early colonies, State religions. The 
first Virginia charter in 1606 established the Anglican church. 
Another law passed then specifically disenfranchised Catholics 
and enforced the expulsion within 5 days of a priest coming to 
the colony.
    In Connecticut, congregationalism, under its famous 
instrument, the Saybrook Platform, became the State religion. 
The whole purpose of the first amendment was to address the 
whole issue of establishing religions and to say people are 
free to choose their own religions or, if they want to, to 
choose not to belong to any particular religion.
    And here, the very language of the bill acknowledges the 
fact that that is what our Constitution says and, yet, we want 
to take away the ability of people who prevail in court. These 
are people who win their cases.
    You may disagree with the substance of court decisions, 
that is a whole other debate. But the fact of the matter is 
they prevailed in bringing a case to defend their 
constitutional rights. And I would just read from the language 
of the bill itself. It says you are going to ``limit the relief 
where the deprivation consists of a violation of a prohibition 
in the Constitution against the establishment of religion.''
    Now, this amendment may well gut the bill, if your 
intention is to say we can now have States pass laws 
establishing official religions. I thought that is what the 
whole first amendment was about, to say in this country, based 
on the history of the first American settlers here and their 
efforts to escape religious prosecution in England and other 
homelands, that you are free here to choose. You can't have 
States passing laws establishing religion.
    And, by God, if a State passes a law saying that--
infringing on that right and you bring a lawsuit and the courts 
decide you are right--and don't forget, these are individuals 
bringing cases against the State. We keep talking about the 
power of the Federal Government and the power of State 
governments. They are the ones with the resources.
    They are the ones with the resources. They are the ones you 
are saying to be--and you want to take away the right of an 
individual who prevails in defending their religious freedom 
and religious liberty to not collect any of their fees.
    It is just unbelievable and it is Orwellian that this would 
fall under the umbrella of American values, when it is just 
directly contrary to the whole history of this country with 
respect to the issue of freedom of religion. It is 
unbelievable.
    Thank you, Mr. Chairman.
    Chairman Sensenbrenner. Does the gentleman yield back? The 
gentleman yields.
    The question is on the amendment to the amendment in the 
nature of a substitute. Those in favor will say, ``aye.''
    Opposed, ``no.''
    The noes appear to have it.
    Rollcall will be ordered. Those in favor of the amendment 
to the amendment in the nature of a substitute will, as your 
names are called, answer, ``aye''; those opposed, ``no.''
    And the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman?
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Mrs. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Mrs. Wasserman Schultz, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote? The gentleman from Wisconsin, Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Weiner.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 12 ayes and 20 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments to the bill?
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Texas, Ms. Jackson Lee, seek recognition?
    Ms. Jackson Lee. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Ms. Jackson Lee. It is 332, with changes.
    The Clerk. ``Amendment to the amendment in the nature of a 
substitute to H.R. 2679----
    Mr. Coble. Mr. Chairman, point of order.
    The Clerk.--offered by Ms. Jackson Lee of Texas. Page 2, 
strike lines 12 through 17.''
    [The amendment offered by Ms. Jackson Lee follows:]
    
    
    Chairman Sensenbrenner. The gentlewoman from Texas is 
recognized for 5 minutes.
    Mr. Coble. I will withdraw, Mr. Chairman.
    Ms. Jackson Lee. I thank the distinguished Chairman. I 
could capture the words of Mr. Van Hollen, who indicated a 
certain degree of disbelief. Again, I think it is simple to 
note, Mr. Chairman, that all this amendment attempts to do is 
to keep the courthouse door open by striking the provision that 
prevents attorney's fees from being rendered to those who are 
petitioning for their rights.
    A simple question and a simple answer. Do I have the right 
to go into the nation's courthouses to defend against religious 
persecution and denial of my religious right? If that is the 
case, whether my religion be of many of different faiths or 
non-faith, it is my perspective and my right under the freedom 
of religion clause, the first amendment, to be able to petition 
the courts.
    And so, this amendment strikes that section on attorney's 
fees, and I would ask my colleagues to support it.
    I yield back.
    Chairman Sensenbrenner. The Chair is informed that there 
are three votes on the floor. Without objection, the Committee 
stands recessed until 5:45.
    [The prepared statement of Mr. King follows:]
  Prepared Statement of the Honorable Steve King, a Representative in 
                    Congress from the State of Iowa
    Mr. Chairman, 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 organizations religious beliefs, and taxpayers were 
required to pay $950,000 in legal fees and court costs to the ACLU.
    In Barrow County, Georgia, 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 Rolands 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 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.
    Thank you, Mr. Chairman.

    [Recess.]
    Chairman Sensenbrenner. It is now 5:45 p.m. The Committee 
will be in order.
    The Chair notes the presence of five Members, which is not 
a working quorum. Without objection, the Committee stands 
adjourned.
    [Whereupon, at 5:46 p.m., the Committee was adjourned.]



                            BUSINESS MEETING



                              (continued)

                      THURSDAY, SEPTEMBER 7, 2006

    The Committee met, pursuant to notice, at 10:07 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    Pursuant to notice, I call up the bill H.R. 2679, the 
``Public Expression of Religion Act,'' for purposes of markup.
    When the Committee met and began consideration of this 
legislation on July 26, the Chair had moved that the Committee 
favorably recommend H.R. 2679 to the House and the bill was 
considered as read and open for amendment at any point.
    An amendment in the nature of a substitute had been offered 
by the gentleman from Indiana, Mr. Hostettler, to which several 
second-degree amendments were offered and rejected.
    When the Committee adjourned, pending was the secondary 
amendment offered by the gentlewoman from Texas, Ms. Jackson 
Lee, to the Hostettler amendment in the nature of a substitute.
    The Committee will now resume consideration of the Jackson 
Lee amendment.
    Are there any further Members who wish to speak on the 
amendment who have not previously been recognized?
    Mr. Scott. Parliamentary inquiry, Mr. Chairman.
    Chairman Sensenbrenner. State your inquiry.
    Mr. Scott. Could you state again what the pending business 
is?
    Chairman Sensenbrenner. The pending business is 
consideration of the Jackson Lee amendment, and the only Member 
who has been recognized on this amendment is Ms. Jackson Lee.
    The question is on agreeing to the Jackson Lee amendment in 
the second degree, the amendment in the nature of a substitute.
    All in favor will say ``aye.''
    Opposed, ``no.''
    The noes appear to have it. The noes have it, and the 
amendment in the second degree in the nature of a substitute is 
not agreed to.
    Are there any further second-degree amendments to the 
Hostettler amendment in the nature of a substitute?
    For what purpose does the gentleman from Virginia seek 
recognition?
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. ``Amendment to the Hostettler amendment in the 
nature of a substitute to H.R. 2679, offered by Mr. Scott of 
Virginia. On the first page, line 13, strike `the' and insert 
`except in the case of' ''----
    [The amendment offered by Mr. Scott follows:]
    
    
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read and the gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, this amendment says that, if the 
clerk had continued, ``except in the case where the court finds 
that the defendant knowingly obeyed.'' It deals with court 
orders, enforcing court orders.
    Mr. Chairman, my amendment seeks to provide an exception to 
the bill, where the establishment claims involve violation of a 
court order by the government.
    Mr. Chairman, 30 years ago, 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.
    This bill would rescind the ability of victims whose rights 
have been found to have been violated under the color of law 
from receiving attorney's fees and costs. This means that only 
the most fortunate of our society will be able to enforce their 
civil rights and seek redress when these rights are violated.
    It means less fortunate citizens can only do so if they 
raise enough money. When the cost of private enforcement 
becomes too great, there will not be any private enforcement 
and then our constitutional guarantees will be reduced to 
hollow pronouncements of the average American, because only the 
wealthy will be able to seek enforcement.
    This is bad public policy and it creates bad precedent. 
Yet, the bill goes even further. The bill would defy victims 
whose rights have been found to have been violated under the 
color of law by a court and whose rights continue to be 
violated, even after a court order, from the ability to see 
remedies other than those provided for in the bill, namely, 
injunctive and declaratory relief.
    But, clearly, if an entity violates the law in the first 
place and knowingly does so even after injunctive or 
declaratory relief has been ordered by a court, then some other 
remedy is necessary to enforce those rights.
    Moreover, a plaintiff who is required to go to court once 
in order to seek relief from the initial violation and then a 
second time in order to bring the continued violation, which 
may constitute contempt of court, to the court's attention 
should be not required to do so at their own expense.
    If the plaintiff has already won the first case, with no 
attorney's fees, and then the defendant doesn't comply and the 
plaintiff has to go back to court, that plaintiff should be 
eligible for appropriate remedies and attorney's fees.
    The court cannot enforce its own order if it is not aware 
of the contempt. This bill would charge the plaintiff with the 
duty of bringing the contempt to the court's attention and then 
hit the plaintiff with the attorney's fees.
    Now, that is not only poor policy, but bad precedent and it 
is extremely unfair. My amendment would remedy the wrong.
    Mr. Chairman, I ask unanimous consent, there is a 
typographical error in the amendment, where it says ``obeyed,'' 
on three different occasions, ``it should be disobeyed.''
    Chairman Sensenbrenner. Without objection.
    Mr. Scott. I would ask unanimous consent to make that 
correction.
    Chairman Sensenbrenner. Without objection.
    Mr. Scott. I yield back.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostettler.
    Mr. Hostettler. Mr. Chairman, move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Mr. Chairman, I rise in opposition to the 
amendment. The amendment should be rejected not only because it 
is unnecessary, but because it invites confusion.
    As written, the base bill already provides a court with the 
full array of means to enforce its own orders. The base text 
limits only ``the remedies with respect to a claim under this 
section,'' namely, 42 USC 1983.
    If State or local officials violate a lawful order of the 
court, including, for example, an injunction, the court can 
hold them in contempt of court. Contempt of court is a remedy 
available, completely separate and apart from 42 USC 1983.
    Contempt of court, according to Black's Law Dictionary, is 
``conduct that defies the authority or dignity of a court or 
legislature. Because such conduct interferes with the 
administration of justice, it is punishable usually by fine or 
imprisonment.''
    Depending on the nature of the violation, the officials may 
be held in civil or criminal contempt or court and have 
appropriate sanctions imposed on them, including paying the 
costs of the other side's attorney's fees.
    This bill leaves those remedies, which are subject to 
slightly different rules in different State and Federal 
jurisdictions, untouched.
    The Supreme Court discussed the power to punish for 
contempt in Chambers v. NASCO, stating that, ``Courts of 
justice are universally acknowledged to be vested by their very 
creation with power to impose submissions to their lawful 
mandates. These powers are governed not by rule or statute, but 
by the control necessarily vested in courts to manage their own 
affairs so as to achieve the orderly and expeditious 
disposition of cases.''
    The Court noted that a court can ``impose, as part of the 
fine, attorney's fees representing the entire costs of the 
litigation.'' This case law remains completely untouched under 
this bill, which only amends two Federal statutes and leaves 
completely untouched current judicially applied rules governing 
sanctions and remedies for the violation of lawful court 
orders.
    So this amendment is unnecessary. But beyond that, this 
amendment is bad policy, because it implies that Congress wants 
the Federal statutory rules of attorney's fees to apply in 
place of existing background rules already applied by State and 
Federal courts.
    That is not the intent of this bill and this amendment 
should be rejected.
    And I yield back.
    Mr. Scott. Would the gentleman yield?
    Mr. Hostettler. Yes, yes.
    Mr. Scott. Did I understand you to say that notwithstanding 
the language at the bottom of page 2, that attorney's fees in 
the case covered by this amendment would be available to the 
plaintiff?
    Mr. Hostettler. Reclaiming my time. Those are rules with 
regard to the section of the law that we are amending. They do 
not apply to the issue of injunctions and contempt of court 
citations.
    The section of law that we are amending creates a statutory 
regime to allow for the awarding of attorney's fees, without--
--
    Mr. Scott. Prohibiting the awarding of attorney's fees.
    Mr. Hostettler. Yes, yes. Well, it covers the statute that 
allows awarding it. It removes that. It does not, however, 
change the rules of court action to say--it allows injunctions. 
It continues to allow injunctions.
    The legislation continues to allow the court to do that 
which the plaintiff seeks to have happen and that is the 
cessation of the activity that is under question. It does not 
change the rules of the court regarding contempt.
    Mr. Scott. Would the gentleman yield?
    Mr. Hostettler. Yes.
    Mr. Scott. The language on the bottom of page 2 says that 
``notwithstanding other provisions of law, the court shall not 
award reasonable attorney's fees and expenses to 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 or against the United States or any 
agency,'' and so on.
    It says that ``the claim of injury consisting of a 
violation of a prohibition in the Constitution against the 
establishment of religion.''
    Mr. Hostettler. Right.
    Mr. Scott. If that is the claim and you are trying to 
enforce that claim, this statute says you can't get attorney's 
fees.
    Mr. Hostettler. The claim--reclaiming my----
    Mr. Scott. The rule of courts cannot--can the rule of court 
overrule the statute?
    Mr. Hostettler. Reclaiming my time. The claim is with 
regard to the constitutional question. The claim is not with 
regard to a contempt citation.
    The contempt citation is independent and the courts and the 
Supreme Court have held that. The contempt citation is not what 
is being altered here.
    Mr. Scott. Will the gentleman yield?
    Mr. Hostettler. Yes, I will yield.
    Mr. Scott. Then my amendment would not offend your version 
of what you think the present law is.
    Mr. Hostettler. No. Reclaiming my time. You say that if 
they disobey an order. This is unnecessary, because they can 
already allow for attorney's fees as a result of----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Michigan seek recognition?
    Mr. Conyers. I rise to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Conyers. Because I just wanted to ask the gentleman 
from Indiana, the author of the bill, is it true that 
proponents of this amendment of yours and maybe yourself is to 
stop extortion by the American Civil Liberties Union and other 
civil rights organizations which use the threat of attorney 
fees to force governmental entities to remove religious symbols 
from public places?
    And I would yield to the author for any enlightenment.
    Mr. Hostettler. Will you repeat the question?
    Mr. Conyers. Yes. Is it true that this legislation has been 
stated by its proponents that its objective is to stop 
extortion by the American Civil Liberties Union and other civil 
rights organizations which use the threat of attorney fees to 
force governmental entities to remove religious symbols from 
public places?
    Mr. Hostettler. If the gentleman will yield.
    Mr. Conyers. Of course.
    Mr. Hostettler. I am not exactly sure what all outside 
groups have said about the legislation.
    Mr. Conyers. But you haven't said that.
    Mr. Hostettler. But it is my desire--you said other civil 
liberties organizations. It is my desire that these cases go to 
court.
    The situation now is that the ACLU comes in and, with this 
tactic, and even testimony before the Subcommittee said this, 
that testimony before the Committee is the desire for this 
statute to be in place is so the cases don't go to court, so 
that they can settle out of court.
    And my desire is to remove this impediment to these cases 
actually going to court.
    Mr. Conyers. So is this description accurate that is being 
asserted, that the supporters of the amendment are saying about 
it?
    Mr. Hostettler. I don't know what--you will have to ask the 
supporters of the amendment.
    Mr. Conyers. You are not one of them?
    Mr. Hostettler. I am probably the prime supporter of the 
amendment.
    Mr. Conyers. Yes. Well, is this accurate or not? You can 
say ``yes'' or ``no.'' It won't matter that much.
    Mr. Hostettler. I don't understand. Explain----
    Mr. Conyers. You don't understand the question, okay.
    I yield to the gentleman from Virginia.
    Mr. Scott. Thank you. I thank the gentleman for yielding.
    As I understand the sponsor's response, the amendment would 
clarify present law, would be consistent with present law, and, 
therefore, just to make sure that people understand it, my 
position would be it ought to be adopted.
    In addition to that, in cases like this, where you have had 
to go back to back to court to get somebody to enforce the law, 
you have not only the original violation, but continued 
violation.
    The plaintiff has had their rights violated. You have in 
the bill denied any compensatory damages. The contempt of court 
or whatever those are would go to the court, not to the 
plaintiff.
    And so you have allowed, throughout this entire process, 
continuing violations of constitutional rights, without any 
effective remedy, other than, after you get to court, to have 
them just stop.
    It seems to me that at least attorney's fees ought to be 
clearly available the second time you have to go to court to 
make somebody finally obey the law.
    And I would hope, Mr. Chairman, that we would adopt the 
amendment. And thank the gentleman for yielding.
    Mr. Hostettler. Will the gentleman yield?
    Mr. Conyers. I would be happy to yield.
    Mr. Hostettler. In your scenario, with regard to contempt 
of an action, what stops current processes from being in 
contempt and the defendant not paying the attorney's fees and 
being in contempt of court in that fashion today?
    Mr. Scott. Will the gentleman yield?
    Mr. Conyers. Yes.
    Mr. Scott. Under present law, you can get damages and 
attorney's fees.
    Mr. Hostettler. Right.
    Mr. Scott. But not on your own dime. And this bill would 
require you to come forth, raise the money before you can even 
get the court to have them stop what may be an obvious flagrant 
violation.
    Mr. Hostettler. Will the gentleman yield?
    Mr. Conyers. Yes.
    Mr. Hostettler. But today, not all of these cases--for 
example, the most recent Supreme Court case with regard to the 
Ten Commandments, whereby the plaintiff, the initial plaintiff 
had to pay all the attorney's fees, because the case was found 
on the part of Governor Perry.
    So you are suggesting that somehow, in the future, 
injunctions by the courts will be disobeyed, it still is 
allowed today. It is the same scenario today that individuals--
--
    Chairman Sensenbrenner. The time of the gentleman from 
Michigan has expired.
    The question is on agreeing to the Scott amendment to the 
Hostettler amendment in the nature of a substitute.
    Those in favor will say ``aye.''
    Opposed, ``no.''
    The noes appear to have it.
    Rollcall is ordered. Those in favor of the Scott amendment 
in the second degree to the Hostettler amendment in the nature 
of a substitute will, as your names are called, answer ``aye,'' 
those opposed, ``no.''
    And the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly?
    [No response.]
    Mr. Goodlatte?
    [No response.]
    Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green?
    [No response.]
    Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Mr. Flake?
    [No response.]
    Mr. Pence?
    [No response.]
    Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert?
    [No response.]
    Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman?
    [No response.]
    Mr. Boucher?
    [No response.]
    Mr. Nadler?
    [No response.]
    Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    [No response.]
    Ms. Jackson Lee?
    [No response.]
    Ms. Waters?
    [No response.]
    Mr. Meehan?
    [No response.]
    Mr. Delahunt?
    [No response.]
    Mr. Wexler?
    [No response.]
    Mr. Weiner?
    Mr. Weiner. Pass.
    The Clerk. Mr. Weiner, pass.
    Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez?
    [No response.]
    Mr. Van Hollen?
    [No response.]
    Mrs. Wasserman Schultz?
    [No response.]
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes?
    The gentleman from Indiana, Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote?
    If not, the clerk will report.
    The Clerk. Mr. Chairman, there are five ``ayes'' and 17 
``nays.''
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    If there are no further amendments, the question is on 
agreeing to the Hostettler amendment in the nature of a 
substitute.
    All in favor will say ``aye.''
    Opposed, ``no.''
    The ayes appear to have it. The ayes have it. The amendment 
is agreed to.
    A reporting quorum is present. The question occurs on----
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Virginia seek recognition?
    Mr. Scott. To ask unanimous consent for a number of letters 
to be introduced in the record, including correspondence from 
the American Civil Liberties Union, the American Humanist 
Association, the American Jewish Committee, Americans United 
for Separation of Church and State, Anti-Defamation League, 
Baptist Joint Committee, Jewish Council for Public Affairs, 
Lawyers Committee for Civil Rights Under Law, Legal Momentum, 
National Council of Jewish Women, National Partnership for 
Women and Families, National Women's Law Center, People for the 
American Way, Secular Coalition of America, Interface Alliance, 
Union of Reformed Judaism, American Trial Lawyers Association, 
and the Leadership Conference on Civil Rights.
    Chairman Sensenbrenner. Without objection.
    Mr. Scott. Thank you.
    [The letters follow:]
    
    
    Chairman Sensenbrenner. And now the question is shall the 
motion to report the bill, H.R. 2679, favorably, as amended, be 
agreed to?
    Those in favor will say ``aye.''
    Opposed, ``no.''
    The ayes appear to have it. The ayes have it, and the bill 
is reported favorably, as amended.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute, incorporating the amendments adopted.
    Without objection, the staff is directed to make any 
technical and conforming changes. And all Members will be given 
2 days, as provided by the House rules, in which to submit 
additional dissenting, supplemental or minority views.
    [Intervening business.]
    [Whereupon, at 3:46 p.m., the Committee was adjourned.]

                            Dissenting Views

    H.R. 2679, the ``Public Expression of Religion Act of 
2006,'' [PERA] undermines the ability of all Americans to seek 
court protection against violations of their rights under the 
Establishment Clause of the First Amendment of the U.S. 
Constitution. If passed, this legislation would, for the first 
time, strip our nation's oldest civil rights law, the Civil 
Rights Act of 1871,\1\ of important remedies currently 
available to individuals whose religious liberty, protected by 
the Constitution, has been violated by the government.\2\ This 
legislation would undermine a critical enforcement mechanism 
that has successfully safeguarded our liberties for more than a 
century.
---------------------------------------------------------------------------
    \1\ 42 U.S.C. 1983.
    \2\ ``Although [Sec. 1983] 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.'' Memorandum to the House 
Judiciary Committee from Kenneth R. Thomas, Legislative Attorney, 
American Law Division, Congressional Research Service (July 15, 
2006)(citations omitted)(On file with Committee).
---------------------------------------------------------------------------
    PERA is opposed by numerous religious and civil liberties 
organizations including: Rev. Dr. C. Welton Gaddy, President, 
The Interfaith Alliance; Rev. Barry W. Lynn, Executive 
Director, Americans United for the Separation of Church and 
State; Richard Foltin, Legislative Director and Counsel, 
American Jewish Committee; K. Hollyn Hollman, General Counsel, 
Baptist Joint Committee for Religious Liberty; Wade Henderson, 
Executive Director, and Nancy Zirkin, Deputy Director, 
Leadership Conference on Civil Rights; Matthew Dietz, Chair 
2006-2007, and Susan Ann Silverstein, Chair 2005-2006; Civil 
Rights Section, Association of Trail Lawyers of America; 
Phyllis Snyder, President, National Council of Jewish Women; 
Hadar Susskind, Washington Director, Jewish Council for Public 
Affairs; Ruth Flower, Legislative Director, Friends Committee 
on National Legislation; American Civil Liberties Union, 
American Humanist Association, American Jewish Committee, 
Americans United for the Separation of Church and State, Anti-
Defamation League, Baptist Joint Committee, Jewish Council for 
Public Affairs, Lawyers Committee for Civil Rights under Law, 
Legal Momentum, National Council of Jewish Women, National 
Partnership for Women & Families, National Women's Law Center, 
People For the American Way, Secular Coalition for America, The 
Interfaith Alliance, Union for Reform Judaism; and, Caroline 
Frederickson, Director and Terri Ann Schroeder, Senior 
Lobbyist, American Civil Liberties Union.
    For these reasons, and those discussed below, we 
respectfully dissent.

                             A. Background

    Representative John Hostettler introduced H.R. 2679, the 
``Public Expression of Religion Act of 2006,'' on May 25, 2006. 
This bill will limit remedies under 42 U.S.C. Sec. 1983, and 
attorneys' fees under 42 U.S.C. Sec. 1988, available to 
prevailing plaintiffs alleging violations of their rights 
guaranteed by the Establishment Clause of the Constitution.\3\ 
An amendment in the nature of a substitute offered by Rep. 
Hostettler, and adopted during the Full Committee markup, 
expanded the coverage of the legislation to include actions 
against the United States. It also would permit declaratory 
relief, which the original bill, inexplicably, would have 
prohibited.\4\ The sponsor's substitute also made the coverage 
of the bill retroactive to include cases pending on the date of 
enactment.
---------------------------------------------------------------------------
    \3\ U.S. Const. amend I. The Establishment Clause states, 
``Congress shall make no law respecting an establishment of religion 
... .''
    \4\ Hostettler amendment in the nature of a substitute to H.R. 
2679, Sec. Sec. 2(a) and 3(a).
---------------------------------------------------------------------------
    The stated intent of the legislation is to stop what its 
proponents have described as ``extortion'' by the American 
Civil Liberties Union, and other civil rights organizations, 
which allegedly use the threat of attorneys' fees to force 
governmental entities to remove religious symbols from public 
places.\5\
---------------------------------------------------------------------------
    \5\ PERA Hearing, at 6 (Statement of Rep. Hostettler).
---------------------------------------------------------------------------
    These fees are only awarded when a plaintiff prevails--when 
a court has found that a person ``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 ... .''\6\
---------------------------------------------------------------------------
    \6\ 42 U.S.C. 1983.
---------------------------------------------------------------------------
    Section 1983 has been the premier enforcement mechanism for 
violations of constitutional rights. The establishment clause 
is just one of the many civil rights protected by Sec. 1983. 
PERA would single out a specific class of people who are 
attempting to protect their rights guaranteed under the 
Establishment Clause for different, adverse treatment under the 
law.

      B. The Legislation Is Far Broader Than Has Been Represented

    Proponents have focused on cases involving the use of 
religious symbols or other forms of religious expression such 
as the use of a cross on a city seal or the Mt. Soledad cross 
that was the subject of legislation passed by the House on July 
19, 2006,\7\ or school graduation prayers.\8\
---------------------------------------------------------------------------
    \7\ ``An Act to preserve the Mt. Soledad Veterans Memorial in San 
Diego, California, by providing for the immediate acquisition of the 
memorial by the United States.'' H.R. 5683 (109th Cong., 2d Session). 
Other potential cases are specified in the bill as reported, by adding 
a definition of ``a claim or injury consisting of a violation of a 
prohibition in the Constitution against the establishment of religion'' 
to include, but not to be limited to, cases against the United States 
involving religious symbols or text on veterans' memorials or federal 
buildings, the official seal of the United States, U.S. currency, or 
the pledge or allegiance, the chartering of Boy Scout units by 
components of the armed forces, by other public entities, or the use of 
public facilities by the Boy Scouts. Hostettler amendment in the nature 
of a substitute to H.R. 2679, Sec. 3(b). The definition was also added 
to the section pertaining to cases brought under 42 U.S.C. 1983. Id. 
Sec. 2(b).
    \8\ Public Expression of Religion Act, Hearing Before the 
Subcommittee on the Constitution of the Committee on the Judiciary, 
U.S. House of Representatives, 109th Cong., 2d Session, Serial No. 109-
118 at 4-5 (June 22, 2006) (Statement of Representative. Hostettler) 
(Hereinafter ``PERA Hearing).
---------------------------------------------------------------------------

 . THERE IS NO THREAT TO RELIGIOUS SYMBOLS ON INDIVIDUAL GRAVE MARKERS.

    Some have argued that religious symbols on individual grave 
markers at veterans' cemeteries are also at risk. For example, 
Rees Lloyd, testifying on behalf of the American Legion, 
stated,

    All across the nation, lawsuits are being brought under the 
establishment Clause to remove or destroy symbols of our 
American heritage from the public sphere if they have a 
religious aspect, principally the Christian Cross, but also the 
Star of David, both of which are present in the hundreds of 
thousands in our twenty-two National Cemeteries from Arlington 
in the East to Riverside National Cemetery in California, and 
across the sea at American cemeteries in Europe, including 
Normandy Beach, where there are more than 9,000 raised Crosses 
and Stars of David.\11\
---------------------------------------------------------------------------
    \11\ PERA Hearing, at (Testimony of Rees Lloyd).
---------------------------------------------------------------------------
    In fact, no one has ever challenged the validity of 
religious symbols on the grave markers of individual veterans, 
chosen by those individuals or their families. No witness, no 
proponent of this legislation, has been able to point to a 
single such case.
    The ACLU has stated,

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.\12\
---------------------------------------------------------------------------
    \12\ Letter to Memebers of the House of Representatives from 
Caroline Fredrickson and Terri Ann Schroeder (July 24, 2006).
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    Mr. Rees also stated that ``I don't think for a minute that 
there is anything in the law today that will protect us from 
such suits by terrorists or their sympathizers and their right 
to get attorney fees because you can't give it to the ACLU and 
deny it to Osama bin Laden.''\13\ Granting, arguendo, the 
impossible proposition that Osama bin Laden might seek to bring 
a Sec. 1983 action in Federal Court, were Congress to take this 
argument seriously, it would have to revoke every legal right 
or benefit to avoid the possibility that a terrorist, or a 
terrorist sympathizer, might also make use of that benefit.
---------------------------------------------------------------------------
    \13\ PERA Hearing at 164.
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   D. VETERANS' ORGANIZATIONS DO NOT RISK PAYING FEE AWARDS IF THEY 
                INTERVENE IN ESTABLISHMENT CLAUSE CASES.

    In his testimony, Mr. Lloyd stated that he advises his 
clients in the American Legion to refrain from filing briefs as 
amici curiae, or lobbying local elected officials, ``because of 
the threat of attorney fees being imposed, including on us if 
we have the audacity to intervene in such cases and fight the 
ACLU in protection of our veterans memorials because we run the 
risk because we run the risk then of having those fees shifted 
to us.''\14\ As Marc Stern explained,

    \14\ Id. at 11.
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The United States Supreme Court has held that in ordinary Title 
VII cases, attorney fees should be awarded against losing 
intervenors only where the intervenor's action was frivolous, 
unreasonable, or without foundation.'' Democratic Party v. 
Reed, 338 F3d 1281, 1288 (9th Cir. 2004), citing Independent 
Flight Attendants v. Zipes, 491 U.S. 761 (1989). Zipes also 
holds that fee shifting statues should be read in uniform 
fashion, such that Sec. 1988 would generally not permit 
intervenor liability.\15\
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    \15\ Letter from Marc D. Stern, Assistant Executive Director, 
American Jewish Congress, to Sen Sam Brownback (August 8, 2006).
---------------------------------------------------------------------------
    We are concerned not only that Congress might legislate 
based on a flawed reading of the law, but that members of the 
American Legion may refrain from asserting their views in court 
on matters of importance to their members in the mistaken 
belief that they face large penalties if the other side 
prevails.

                 E. ATTACK ON THE ESTABLISHMENT CLAUSE

    Much of the testimony, and statements from the proponents, 
takes issue, not with the Sec. 1983, or with longstanding 
remedies available under Sec. 1988, but rather with the law of 
the Establishment Clause itself. While Members are certainly 
free to disagree with the interpretations of the Constitution 
by the courts, we believe it is inappropriate to cut off access 
to the courts, or remedies for people who have been found by 
the courts to have had their legal rights violated.
    For example, Mathew Staver told the Committee that 
``Establishment Clause jurisprudence is the most unpredictable 
and confusing area of the law. There have been and remain sharp 
differences between the Justices of the United States Supreme 
Court and lower court judges over the meaning of the 
Establishment Clause.''\16\
---------------------------------------------------------------------------
    \16\ PERA Hearing, at 36 (testimony of Mathew Staver).
---------------------------------------------------------------------------
    Representative Hostettler cited a letter to public 
educators in Indiana from the Indiana Civil Liberties Union, 
which threatened legal action if they held prayers at 
graduations, in violation ofclear and unambiguous Supreme Court 
precedent announced only the year before the ICLU letter was 
written.\17\
---------------------------------------------------------------------------
    \17\ PERA Hearing, at 4-5 (statement of Representative Hostettler). 
Lee v. Weisman, 505 U.S. 577 (1992). Representative Scott offered an 
amendment to except from the bill's restrictions cases involving 
sectarian prayer conducted by a governmental official in a public 
school. The amendment was rejected on a strict party-line vote.
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F. Awards of Attorneys' Fees in Civil Rights Cases Are a Vital Tool in 
                        Civil Rights Enforcement

    Federal civil rights laws, including the ``Civil Rights 
Attorney's Fees Awards Act of 1976,'' permit awards of 
attorneys'' fees.\18\
---------------------------------------------------------------------------
    \18\ 42 U.S.C. Sec. 1988(b), provides:
---------------------------------------------------------------------------
    H.R. 2679 will bar the awarding of fees, as well as 
monetary damages, only in cases where the prevailing party had 
demonstrated a violation of Sec. 1983 only with respect to the 
Establishment Clause of the First Amendment.
    Ironically, this Committee crafted, and the President 
signed, legislation reauthorizing the Voting Rights Act which 
expanded the attorneys' fees provision of that statute to 
include ``reasonable expert fees, and other reasonable 
litigation expenses.'' \19\
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    \19\ H.R. 9, Sec. 6(105th Cong.) The ``Fannie Lou Hamer, Rosa 
Parks, and Coretta Scott King Voting Rights Act Reauthorization and 
Amendments Act of 2006,'' amending Sec. 14(e) of the Voting Rights Act 
of 1965 (42 U.S.C. 19731(e)).
    ``In any action or proceeding to enforce a provision of sections 
1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of 
Public Law 92-318, the Religious Freedom Restoration Act of 1993, the 
Religious Land Use and Institutionalized Persons Act of 2000, title VI 
of the Civil Rights Act of 1964, or section 40302 of the Violence 
Against Women Act of 1994, the court, in its discretion, may allow the 
prevailing party, other than the United States, a reasonable attorney's 
fee as part of the costs, except that in any action brought against a 
judicial officer for an act or omission taken in such officer's 
judicial capacity such officer shall not be held liable for any costs, 
including attorney's fees, unless such action was clearly in excess of 
such officer's jurisdiction.''
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    This Committee's Report noted,

In amending Section 14 of the VRA to explicitly include the 
recovery of expert costs as part of attorneys fees, the 
Committee seeks to update the Voting Rights Act of 1965 to 
comport with other Federal civil rights laws. Early in 1991, 
the Supreme Court held in West Virginia Hospitals, Inc. v. 
Casey that `Fees for services rendered by experts in civil 
rights litigation may not be shifted to the losing party as 
part of `a reasonable attorneys fee' under Sec. 1988.' Later 
that same year, Congress `amended the Civil Rights Act of 1964 
to strengthen and improve Federal civil rights laws,' including 
providing for the recovery of expert fees as part of attorneys 
fees. In amending the Civil Rights Act of 1964, Congress 
specifically `recognized that evidence from one or more expert 
witnesses is critical to trying an employment discrimination 
case.' The Committee finds the same to be true in the context 
of voting discrimination cases pursued under the relevant 
provisions of the VRA. 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.\20\
---------------------------------------------------------------------------
    \20\ H. Rpt. 109-478, at 64-65 (2006) (emphasis added) (citations 
omitted).

    Fees and damages are also necessary in cases where an 
injunction would be an inadequate form of relief, because the 
violation is not ongoing. In cases, such as the Mt. Soledad 
case (which was decided under California law), where the 
government resisted enforcement of the court's ruling for 15 
years, fees and damages help to ensure that governmental 
officials do not flout the law.\21\ Contempt of court citations 
may penalize recalcitrant officials, but they in no way make 
the plaintiffs whole, nor do they assist those private parties 
in pursing the enforcement of their rights under the 
Constitution.
---------------------------------------------------------------------------
    \21\ PERA Hearing at 167 (testimony of Marc Stern).
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                               Conclusion

    The Establishment Clause of the Constitution has long been 
a source of strong and heartfelt disagreement. These 
disagreements can, at times, get extremely emotional. Whatever 
form these disagreements take, we do not believe that 
dismantling our nation's oldest civil rights law is an 
appropriate course of action.
    The Civil Rights Acts have been to important a tool in 
protecting the fundamental liberties for which this nation has 
always stood. We believe it would be a mistake, and a dangerous 
precedent, to begin the process of dismantling those laws.
    For these reasons, we respectfully dissent.

        DESCRIPTION OF AMENDMENTS OFFERED BY DEMOCRATIC MEMBERS

1. Amendment offered by Representative Jerrold Nadler (#2)

    Description of amendment: The Nadler amendment sought to 
except from the bill's restrictions on relief and fees cases 
involving religious coercion.
    The amendment was defeated by a vote of 10 to 17. Ayes: 
Representatives Conyers, Nadler, Scott, Watt, Lofgren, Jackson 
Lee, Weiner, Schiff, Sanchez, and Wasserman Schultz. Nays: 
Representatives Coble, Smith, Chabot, Lungren, Jenkins, Cannon, 
Bachus, Inglis, Hostettler, Keller, Pence, Forbes, King, 
Feeney, Franks, Gohmert, and Sensenbrenner.

2. Amendment offered by Representative Scott (#3)

    Description of amendment: The Scott amendment sought to 
except from the bill's restrictions cases involving sectarian 
prayer conducted by a governmental official in a public school.
    The amendment was defeated by a vote of 12 to 19. Ayes: 
Representatives Conyers, Berman, Nadler, Scott, Watt, Lofgren, 
Jackson Lee, Weiner, Schiff, Sanchez, Van Hollen, and Wasserman 
Schultz. Nays: Representatives Coble, Smith, Gallegly, Chabot, 
Lungren, Jenkins, Cannon, Bachus, Inglis, Hostettler, Green, 
Keller, Issa, Forbes, King, Feeney, Franks, Gohmert, and 
Sensenbrenner.

3. Amendment offered by Representative Jackson Lee (#4)

    Description of amendment: Representative Jackson Lee's 
amendment sought to allow attorneys' fees in cases alleging 
violations of the Establishment Clause to the same extent that 
such fees would be permitted in an action alleging the taking 
of private property without just compensation in violation of 
the Fifth Amendment.
    The amendment was defeated by a vote of 11 to 19. Ayes: 
Representatives Conyers, Berman, Nadler, Scott, Watt, Lofgren, 
Jackson Lee, Weiner, Schiff, Van Hollen, and Wasserman Schultz. 
Nays: Representatives Coble, Smith, Gallegly, Chabot, Lungren, 
Jenkins, Cannon, Bachus, Hostettler, Green, Keller, Issa, 
Flake, Forbes, King, Feeney, Franks, Gohmert, and 
Sensenbrenner.

4. Amendment offered by Representative Nadler (#5)

    Description of amendment: The Nadler amendment sought to 
except from the bill's restrictions cases involving a 
declaration of an official religion.''
    The amendment was defeated by a vote of 12 to 20. Ayes: 
Representatives Conyers, Berman, Nadler, Scott, Watt, Lofgren, 
Jackson Lee, Meehan, Weiner, Schiff, Van Hollen, and Wasserman 
Schultz. Nays: Representatives Coble, Smith, Gallegly, Chabot, 
Lungren, Jenkins, Cannon, Bachus, Inglis, Hostettler, Green, 
Keller, Issa, Flake, Forbes, King, Feeney, Franks, Gohmert, and 
Sensenbrenner.

5. Amendment offered by Representative Jackson Lee (#6)

    Description of amendment: Ms. Jackson Lee's amendment 
sought to restore prevailing plantiff attorney's fees.
    The amendment was defeated by a voice vote.

6. Amendment offered by Representative Scott (#7)

    Description of amendment: Mr. Scott's amendment sought to 
provide an exception to the bill, where the establishment 
claims involve violation of a court order by the government.
    The amendment was defeated by a vote of 5 to 17. Ayes: 
Representatives Conyers, Scott, Watt, Weiner, and Schiff. Nays: 
Representatives Coble, Smith, Chabot, Lungren, Jenkins, Cannon, 
Bachus, Inglis, Hostettler, Keller, Issa, Pence, Forbes, King, 
Feeney, Franks, and Sensenbrenner.

                                   John Conyers Jr.
                                   Bobby Scott.
                                   Maxine Waters.
                                   Bill Delahunt.
                                   Linda T. Sanchez.
                                   Debbie Waserman Schultz.
                                   Jerrold Nadler.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Robert Wexler.
                                   Chris Van Hollen.

                                  
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