With virtually no public awareness, the U.S House of Representatives late in September passed a bill that undermines enforcement of the First Amendment's Establishment Clause, which the Supreme Court has for more than 150 years upheld as vital for the separation of church and state.
The Public Expression of Religion Act (H.R. 2679) "amends the Revised Statutes of the United States to limit the remedy to injunctive relief and deny attorney's fees in a civil action against a state of local official for deprivation of rights where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion."
Put simply, this bill provides that attorneys who successfully challenge government actions as violating the Establishment Clause shall not be entitled to recover attorneys' fees. This bill has one purpose and one purpose only: to prevent lawsuits challenging unconstitutional government actions advancing religion.
Passed by a vote of 244-173, with 97% of Republicans supporting and 87% of Democrats opposing, the bill now awaits consideration in the U.S. Senate. A companion bill, S. 3696 sponsored by Sen. Sam Brownback (R-KS) and five co-sponsors, currently sits in the Senate Judiciary Committee. Senators adjourned for the election recess without further action on this bill.
Supporters are ecstatic over passage of H.R 2679. This bill will "end judicial blackmail", and "eliminate the authority of judges to award attorney fees to the ACLU, or anyone else, in Establishment Clause lawsuits against veterans memorials, the Boy Scouts, public seals, and the public display of the Ten Commandments and other symbols of America's history and heritage which have a religious aspect".
Supporters of the bill, such as the American Legion and Boy Scouts of America, as well as various religious organizations, see themselves as "targets of the ACLU's ideologically-driven secular-cleansing terrorizing litigation". While I don't care too much about veterans groups and memorials, Fraternal Orders of Police, and Boy Scout troops using religious symbols or language in their private activities, I certainly do not want public displays of the Ten Commandments on my statehouse steps, do you?
A nearly thirty year-old federal statute, 42 United States Code section 1988, provides that attorneys are entitled to recover compensation for their fees if they successfully represent a plaintiff asserting a violation of his or her constitutional or civil rights. Thirty years ago, Congress recognized that plaintiffs must never feel prohibited from suing to remedy a violation of their Constitutional or civil rights by the knowledge that he or she must compensate the attorney win or lose.
This bill will do just that. It will discourage attorneys from bringing cases on behalf of those whose religious rights may have been violated. Without 42 U.S. Code section 1988, there will be little to stop the federal government from violating the Establishment Clause. For instance, an attorney who successfully challenged unconstitutional prayers in school, or religious symbols on public property, or government aid to religious organizations would, under this bill, not be entitled to recover attorneys' fees. Few if any attorneys could afford take up such lengthy and complicated cases pro bono.
Such a bill has only one motive: to protect unconstitutional government actions advancing religion, which, of course, means the Christian religion. This is a cleverly subversive approach taken by those on the religious right and their representatives in Congress who, after decades of trying to advance their religious views through unconstitutional legislation, seek with this bill to greatly reduce the chance that their future efforts will be declared unconstitutional in federal court.
Since they cannot change the First Amendment, they will instead prevent its enforcement.
With passage of H.R. 2679, the religious right is one step closer to tearing down the wall separating church and state. This is the most insidious and potentially dangerous attack on the wall in American history. Senators must be urged not to pass S. 3696, should it come out of committee. The recent changeover in control of the Senate to the Democrats is no guarantee of this bill's demise.
Todd Huffman is a pediatrician and writer living in Eugene, Oregon. He is a regular contributor to many newspapers and publications throughout the Pacific Northwest.
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