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September 30, 2006

Dissing the Establishment Clause

[Updated below.]

(Sorry I've been away from PK for a while now [or, if you didn't like my stuff that much anyway, you're welcome]. I've been tending my own garden a little more in the last few weeks.)

What with the release of the NIE documenting that we've made terrorism worse (or better, depending on whose side you'r'e on) in Iraq, America joining the ranks of torture capital around the world, and the news that the Republican co-chair of the Missing and Exploited Children Caucus just resigned over predatory emails to a 16-year-old boy, perhaps it's understandable that this one snuck under my First Amendment radar:

With little public attention or even notice, the House of Representatives has passed a bill that undermines enforcement of the First Amendment's separation of church and state. The Public Expression of Religion Act - H.R. 2679 - provides that attorneys who successfully challenge government actions as violating the Establishment Clause of the First Amendment shall not be entitled to recover attorneys fees. The bill has only one purpose: to prevent suits challenging unconstitutional government actions advancing religion.

A 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. For example, a lawyer who successfully sues on behalf of a victim of racial discrimination or police abuse is entitled to recover attorney's fees from the defendant who acted wrongfully. Any plaintiff who successfully sues to remedy a violation of the Constitution or a federal civil rights statute is entitled to have his or her attorney's fees paid.

Congress adopted this statute for a simple reason: to encourage attorneys to bring cases on behalf of those whose rights have been violated. Congress was concerned that such individuals often cannot afford an attorney and vindicating constitutional rights rarely generates enough in damages to pay a lawyer on a contingency fee basis.

Without this statute, there is no way to compensate attorneys who successfully sue for injunctions to stop unconstitutional government behavior. Congress rightly recognized that attorneys who bring such actions are serving society's interests by stopping the government from violating the Constitution. Indeed, the potential for such suits deters government wrong-doing and increases the likelihood that the Constitution will be followed.

Think of it as a supply-side remedy to all those pesky "No Ten Commandments in the Courthouse" suits:

Such a bill could have only one motive: to protect unconstitutional government actions advancing religion. The religious right, which has been trying for years to use government to advance their religious views, wants to reduce the likelihood that their efforts will be declared unconstitutional. Since they cannot change the law of the Establishment Clause by statute, they have turned their attention to trying to prevent its enforcement by eliminating the possibility for recovery of attorneys' fees.

In the time left before the devoutly-to-be-wished pre-election congressional recess, the Senate may decide it has other matters to deal with besides this. We can only hope.

Update: The vote was predictable: Walden voted for this piece of unAmericana; Wu, Blumenauer, Hooley, and DeFazio voted against it. (Are you listening, Carol Voisin?)

And georgia10 at DailyKOS adds this:

To see just how disturbing this bill really is, check out the House report on the bill. Most notably, there were several amendments offered in committee to try and temper the effects of the bill. For example, the committee rejected an amendment by Rep. Nadler that would have exempted from the bill cases "involving a declaration of an official religion."

Posted by Nothstine at September 30, 2006 08:17 AM