September 8, 2006

The Public Expression of Religion Act.

Yesterday, the House Judiciary Committee voted for the "Public Expression of Religion Act," which prevents the recovery of attorneys' fees in lawsuits based on the Establishment Clause:
Supporters say the bill, if passed and signed into law, would keep special-interest groups such as the American Civil Liberties Union from "abusing the system" when filing challenges to government actions that may endorse religion. Opponents say it would have a chilling effect on the ability of religious minorities to defend their freedoms.

The committee's vote was split down party lines, with all 12 Republicans present supporting the bill and Democrats opposing it....

"[T]he ability to recover attorneys' fees in civil-rights and constitutional cases, including establishment-clause cases, is necessary to help protect the religious freedom of all Americans and to keep religion government-free," the [ACLU] statement said, noting the fees in such suits often total "tens, if not hundreds of thousands, of dollars."

"Few citizens can afford to [pay such fees]," it continued. "But more importantly, citizens should not be required to do so where the court finds that the government has violated their rights and engaged in unconstitutional behavior."

Rep. John Hostettler (R-Ind.), the bill's chief House sponsor, said the act was necessary to prevent such groups from intimidating governments into agreeing to out-of-court settlements.

"It is outrageous that public officials have been threatened with the prospect of financial ruin merely because they wish to defend their constitutional rights in a court of law," he said in a statement. "This is a big victory for Americans who care about our rich religious heritage in this country."
Those are some sharply drawn party lines. I'm definitely with the ACLU on this one. "Americans who care about our rich religious heritage in this country" -- that really grates. Taking a strong position in favor of separating religion and state doesn't mean you don't "care about our rich religious heritage in this country." I mean, could Hostettler get any more conservative buzz words into his sentence? Victory, Americans, rich, religious, heritage, country.

Meanwhile, the ACLU forefronts "keep[ing] religion government-free," which really is one of the Establishment Clause values, even though it's not what we usually feel is motivating the ACLU to bring its lawsuits, so you may feel pretty skeptical.

Nevertheless, keeping government out of religion really is something Americans who care about our rich religious heritage in this country should know is every bit as much a part of our rich religious heritage in this country as keeping religion out of government and protecting free expression about religion. And -- I hasten to add -- so is avoiding fighting about religion... which would be a good idea now... even in Congress.


hdhouse said...

we elected this current House of Representatives. some say we got what others paid for but with the war on terror, the war in iraq, the war in afghanistan, 8 trillion or more in debt (but who is counting), health care, immigration, "let's go to mars", katrina aftermath, how long can this list be, our House of Representatives spends its time doing this. 2 questions:

1. who or what interest does this serve?
2. who or what interest is this really supposed to effect?

some may not like the ACLU and "other such groups" (what others?) but the ACLU steps in to protect civil liberties pretty much regardless (it has been on the side of desparate groups and individuals (yes from Rush Limbaugh to the Nazi party)... so what is this really about?

J said...

I'm with you 1000% on this one Ann - as long as government entities (and anybody else for that matter) that get sued by the ACLU or other groups over this stuff and win get to collect from those groups every. single. penny. they spent defending themselves. Fair is fair. Are they allowed to do that now?

JohnF said...

I gather from Ann's presentation that as of now only plaintiffs can recover legal costs from defendants in these cases--not the reverse. (If I'm wrong, please disregard the appropriate part of what follows!)

If so, this is exactly the wrong way to go, and the bill, instead of abolishing the plaintiff's right to recover legal fees, should create a right of the defendant to recover legal fees if the defendant wins.

Making losing parties pay their own legal costs, as well as the prevailing parties' legal costs, would have a very beneficial effect on the litigation business. Beneficial to the public, that is. It would help discourage frivolous litigation and help discourage bad conduct that would warrant litigation.

Harkonnendog said...

If you believe the ACLU cares about individual civil rights you'll be against this bill. If you believe the ACLU cares about advancing the DU agenda you'll be for it. I'm for it.

There was a time when I thought the ACLU was full of Atticus Finch types. Now I know better.

That link gives a pretty good list of reasons to support anything that harms the ACLU.

Abraham said...

The ACLU has done some fine work and supported many worthy causes.


It has, in my opinion, crossed the line from advocating for "goverment out of religion" to advocating that government be required to actively discriminate against religion.

I'm also disenchanted with its decidedly anti-libertarian interpretation of the Second Amendment.

hdhouse said...

off topic but are we really sure that there are significant segments of this party that are out to persecute christian causes? hello? really?
there is silly and there is silly.

this isn't about that. the effect is felt down to the pro-se and it is at that level that it is most harmful...

and how are you going to protect the right of in forma pauperis (sp...forgive me) to get into federal court, jump through the myriad hoops, reviews, overworked pro se aide, etc., and get a case on the federal docket? he can't pay the couple hundred bucks to pay the filing fee and then if he looses in a contested action...50% loose you know...he has to do what?

and god forbid he happens. i've won pro se several i get legal fees? nope. i got mileage and paper expenses for copies and process servers.

i repeat:

who does this benefit
who does this effect

Jake said...

There are corrupt local ACLU chapters who are suing about the most innocuous religious symbols that have been around for decades. Hardly anyone notices they exist anymore.

ACLU chapters comb the countryside looking for these symbols just so they can sue for the fees. It is an out and out racket that serves no purposes except to feed greedy ACLU lawyers.

Congress is right to put an end to this extortion by the ACLU.

Seven Machos said...

The ACLU serves a very priestly function for secular leftists. It's very interesting to me.

Regarding the Establishment Clause, I know this won't be a very popular opinion here, but all it was meant to do originally was to prevent the federal government from establishing a religion. You can argue that later amendments extend the Bill of Rights to what the States can do, and it's a good argument, but it still will only get you so far. Establishment is not what is happening virtually every time the ACLU pitches a fit.

As far as hd house: buddy, you are so far out of your depth on this topic that it is pitiful.

Jack said...

I hate to say it but the ACLU is right on this one. *gag cough hack* Sorry.

The proper way to fight intimidation by threatened lawsuit is to actually have government officials with spines. I am sad to see that that description does not seem to apply to the House Judiciary Committee.

Daryl Herbert said...

I'm with you 100% as well, Ann. This is an absolute disgrace.

1 - This will confirm to many people that Republicans are out to get reconstruction-era civil rights statutes that were so important to blacks for so long.

2 - currently, attorneys' fees are only awarded if the plaintiff WINS. That means they are only awarded if the plaintiff was RIGHT. If the plaintiff was right, she should not have had to sue in the first place, the defendant was behaving badly.

3 - It's not easy to win real damages in separation of church and state suits. You have to prove some actual harm, and Nativity Scenes aren't exactly emanating death rays or jagged spikes. Without the attorneys' fees award, the ACLU would lose money on successful lawsuits, when it was RIGHT. The ACLU (or other civil rights groups) would LOSE MONEY every time they stood up for our rights.

4 - Taking away attorneys's fees only hurts plaintiffs who WIN the case. Plaintiffs who bring frivolous suits are going to LOSE, and wouldn't get any money anyway. This is ONLY about penalizing plaintiffs who bring civil rights lawsuits that the Supreme Court has already said they should win.

5 - In addition to raising costs on civil rights groups, it lowers the costs on civil rights violators. So it encourages civil rights violations: you have to think about the MARGINAL CASE. Imagine some small town a--holes who right now want to violate Constitutional rights but think it's too expensive to get into a big legal battle with the ACLU. If this change comes through, they might think cost-wise it's worth it. And if a lot of small towns do this, the ACLU will have to file a LOT of suits--just so we can break even in enforcing our Constitutional rights! This isn't about getting NEW rights, it's about keeping the ones we have!

6 - Even if the ACLU and other civil rights groups can AFFORD to file so many law suits, why should they have to pay? Why the f--- should AMERICAN CITIZENS have to pay out of their own pockets just to keep the rights the Supreme Court says we have?

altoids1306 said...

I'm not too worried about the ACLU, or whatever Judeo-Christian/anti-Judeo-Christian bills Congress may pass. Christianity outlived the Roman Empire, and it will outlive the United States.

RiverRat said...

I might even buy your argument Ann, if the law were changed so that defendants, including municipal and state agencies, were also entitled to recovery from the Federal Government in the event they prevail.

rightwingprof said...

How, then, do you defend using taxpayer funds for these attorneys?

That's the issue. And I see nothing in the Constitution that entitles these attorneys to my taxes.

Jake said...

Daryl Herbert:

ACLU is a very wealthy organization. The get floods of left-wing money every year. The ACLU has more money than most communities they sue. People's property taxes pay for those racketeers' lawsuits. Because of the ACLU, teachers are laid off, fire engines are not purchased, sewers are not laid.

People earning $10 an hour are paying lawyers $500 an hour. How is that fair. What is that accomplishing?

Ross said...

Only somewhat off topic:

Small businesses in California have seen waves of lawsuits filed by enterprising attorneys under the Americans with Disabilities Act. A few lawyers have filed hundreds of lawsuits a year in the past few years. Almost all settle for some small payment of attorney's fees and a promise to, say, move the towel rack in the bathroom.

Question: Although the anti-ACLU law would plainly apply to judgments after trial, would it (can it?) affect settlements? I'd think not.

Daryl Herbert said...

Question: Although the anti-ACLU law would plainly apply to judgments after trial, would it (can it?) affect settlements? I'd think not.

The thing is, people settle cases for amounts based on what would happen at trial.

So if they think at trial they would probably lose $10,000-40,000 and then 20,000 in legal fees, they're expecting a loss of 30-60k. So they might be willing to settle the case for 40k, to avoid the risk.

Plus, legal fees increase if you go to trial, because there are so many expenses associated with the trial (court fees, jury fees, reporters fees, and all the extra hours and extra photocopying the lawyer is doing for the trial)

Harry Eagar said...

Ah so. And when the Rutherford Institute successfully sues a government for infringing the rights of a church, it doesn't get to cover its attorney costs?

Fair's fair.

Professor Althouse is correct, but she could have expanded this discussion quite a bit.

Daryl Herbert said...

I might even buy your argument Ann, if the law were changed so that defendants, including municipal and state agencies, were also entitled to recovery from the Federal Government in the event they prevail.

That might be the best way to go. (Has anyone ever suggested it before? If not, it might make a good law review article)

I don't like the idea of plaintiffs being forced to pay, because not every civil rights plaintiff has the ACLU behind him. A lot of them are just poor people who could not afford to lose money if they lost the case (so they would be scared to ever assert their civil rights).

Jake said...


The ACLU is sitting on $242,000,000. I think that the ALCU can afford photocopies at 5 cents a copy. There is no reason to rob people who are making $10 an hour to pay for it.

ACLU is a left wing organization that is so wealthy and so powerful, it is a threat to our democracy.

Harry Eagar said...

How much has the Olin Foundation got?

Maybe if the ACLU wins lawsuits, it's because it has the law on its side.

Anyhow, I'm waiting for ACLU foes to state that the same principle must apply to, eg, the Becket Fund.

Kent said...

I agree with you, but I'm not happy about it. If the court finds that the plaintiff in one of these cases is in the right, the plaintiff ought to be able to recover the costs of litigation ... even if he has the ACLU behind him.

But, as I say, I'm not happy about it. The ACLU has a history of using its deep pockets and reputation to intimidate its opponents. The ACLU can afford a loss much more than many of its targets can, and that's got to mean that the ACLU effectively wins a lot of cases where it isn't in the right.

Is there such a thing as ACLU lawsuit insurance? Diffusing the risks associated with losing a case to the ACLU might allow local governments to exercise more backbone when they really have reason to think they're in the right. It's certainly a better solution than distorting the common law.

And it makes my bile rise to see a phrase like "keep[ing] religion government-free" in anything put out by the ACLU. As if they're on the side of religion.

Revenant said...

Christianity outlived the Roman Empire, and it will outlive the United States

In some sense of the term it might. The Christianity of today bears little resemblance to the Christianity of Roman times, though. It didn't so much "outlive Rome" as it did "change with the times".

The current trend in the developed world is towards a sort of generic "be nice to people and say you believe in God, but don't bother with all that church stuff except on special occasions" form of Christianity. That's probably the future of organized religion.

Harry Eagar said...

Loser pays is the English system, and, quite apart from freedom of religion issues, has been a principal issue for the Wall Street Journal for years.

If you think the ACLU can buy justice, just imagine how much more justice Microsoft could buy.

I have mixed feelings about the plaintiff lawyer rakeoff, but until somebody else steps up to speak for the impecunious, that's the best we've got.

ACLU-haters might want to visit the Becket Fund website and see how often government discriminates against religion without any prompting from liberals.

rightwingprof said...

I see nobody has given any kind of an argument for why the ACLU is entitled to a penny of taxpayer funds.

I'm not surprised, since there is no such argument, which is why the bill is a good one, and should be passed.

Harry Eagar said...

OK, here's an argument for that. ACLU gets attorney fees and (potentially, if it wishes to act like a commercial tort lawyer) a cut of the payout because everybody else does.

In my county, the Becket Fund provided lawyering to a small congregation that was refused a building permit. The county didn't have a leg to stand on, but it had unlimited legal resources and the church -- with about 60 members, none of them rich -- had almost none; and the county was just going to stonewall until Becket stepped in.

Becket's recovery of its investment allows it to challenge the next country that tries to buy justice.