In a worrying development for every citizen concerned about protecting state-church separation, the so-called “Public Expression of Religion Act” passed the U.S. House of Representatives earlier this week on a largely party-line vote of 244 to 173. Sponsored by Republican representative John Hostettler, this bill’s purpose is to make it too expensive for private citizens and public interest groups to sue the government to compel it to cease actions which violate the Constitution.
With the law as it exists now, plaintiffs who sue the government for unconstitutionally establishing religion, and win in court, can force defendants to reimburse them for the costs of their attorneys’ fees. This is eminent common sense: American citizens who prove that the government has violated the law should not have to pay for the privilege. The burden of costs should be on the defendant who acted unconstitutionally. This is a sound and rational measure to discourage government officials from seeking to violate the Constitution and to encourage citizens to take an active role in safeguarding the law of the land. Furthermore, this is an important safeguard because litigation is expensive: a lengthy case can easily run into the hundreds of thousands or even the millions of dollars, especially with multiple rounds of appeals. For instance, the recent anti-intelligent design decision Kitzmiller v. Dover cost the plaintiffs over $2 million in attorneys’ fees, and this case was not even appealed to the Supreme Court.
But Hostettler’s bill would forbid the winner in such a case from recovering attorneys’ fees or being awarded damages. In essence, it forces citizens to pay if they want to stop the government’s unconstitutional activities. Such a bill could potentially make it ruinously expensive for civil rights groups to challenge unconstitutional legislation – and this, of course, is exactly what Hostettler and his Republican cronies want. It is a blatantly cynical attempt to undermine the Constitution, and it shows the Republican Party’s outright contempt for the law of the United States of America. They cannot legislatively overcome precedents handed down by the courts, so they have sought to do the next best thing by throwing up hurdles in the way of people who seek to have those precedents applied.
As usual, the craven theocrats sponsoring this bill have cast themselves as the victims. As Republican representative Steve King said:
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… 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? (source)
This mask of ignorant rhetoric cannot hide an obvious fact. It is true that the prospect of a lengthy, expensive court trial which they are almost certain to lose, and then be forced to pay attorneys’ fees for, dissuades many school boards and municipalities from confrontations with the ACLU and other civil rights groups over government establishments of religion. In a sense, this could be considered strong-arming. But – and this is the important part – the purpose and effect of this “strong-arming” is to prevent these towns and school boards from doing unconstitutional things. The ACLU threatening to sue when a town puts a Ten Commandments monument in its courthouse, or when a school board decides to “balance” the teaching of evolution with daily teacher-led prayers to Jesus, is strong-arming only in the same sense that a prosecutor who has amassed an overwhelming case against a suspect can “strong-arm” them into pleading guilty.
One additional important point is that, contrary to the Republicans’ deceitful imagery of bullying ACLU lawyers swooping down to extort small towns, the reality is that the plaintiffs in many church-state cases do not fully cover their expenses even when they win and even when attorneys’ fees are awarded. In the aforementioned Kitzmiller case, for example, the law firm Pepper Hamilton that agreed to represent the plaintiffs ended up recovering only $1 million in attorneys’ fees, when the case actually cost over $2 million to bring to trial. As Ed Brayton points out, many other constitutional cases have similar results. If anything, the ACLU and other civil rights groups lose money on these cases, and are able to continue their work only through the financial support of their members.
Brayton, the ACLU and others have expressed optimism that this arrogant and un-American bill will fail in the Senate, as similar court-stripping bills introduced by Hostettler in the past have done, and this is a source of hope. (Even more encouragingly, Talk to Action asserts that Hostettler’s re-election bid this year is in serious jeopardy from his challenger, which gives me hope that America is returning to its senses.) However, the defense of liberty requires us to always be vigilant, and in a climate as hostile to American ideals as the current one, there can be no excuse for complacency. I encourage all my American readers to contact their senators and urge them to oppose this bill. Furthermore, if your representative voted for the bill (a roll call can be found here), I similarly encourage you to write and castigate them. The Republicans are wholly owned by the religious right and are probably without shame in such matters, but Democrats who voted for this bill should be strongly criticized and shamed, in the hope that it will inspire them to find the courage to stand up against similar disgraces in the future.
Other posts in this series: