HR 2679, the bill barring attorney fee awards in establishment clause lawsuits

This is a follow-up to my article titled, "Is the party almost over for ACLU and AUSCS?"

The official stated purpose of HR 2679, titled "Public Expression of Religion Act of 2005", is "[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."

I think that the bill's above title and stated purpose are misleading -- they imply that the bill concerns the free exercise and free speech clauses whereas the bill really concerns the establishment clause. Under the free exercise and free speech clauses, state and local officials have a constitutionally protected freedom of expression of religion as individuals, but these public officials' use of governmental authority to express religion is restricted by the establishment clause.

Hearings on the bill were recently held by the House Subcommittee on the Constitution. Testimony in supporting the bill is here and testimony opposing the bill is here. Oddly enough, the testimony supporting the bill did not even mention the Kitzmiller v. Dover case, one of the most egregious examples of the abuse of attorney fee awards in establishment clause cases.

Ed Brayton's blog "Dispatches from the Culture Wars" has a recently posted article about this bill. I would post the following comments on Ed Brayton's blog, but I have been banned there. Like Panda's Thumb's head honcho Wesley Elsberry, Ed Brayton's attitude is, "it's my way or the highway," so he does not allow comments that disagree with his positions.

Ed Brayton said,

It's not by accident that the very first clause of the first amendment forbids the establishment of religion.

Wrong. The order in which rights and protections are presented in the Bill of Rights has nothing to do with their relative importance. If there were any truth to that claim, the NRA would be proclaiming to high heaven that the right to keep and bear arms is the second amendment out of the ten in the Bill of Rights. The free exercise clause is in the 1st amendment because of this clause's association with the free speech clause, and the establishment clause is there too because of its association with the free exercise clause. The establishment clause does not rank very high in my book because it is usually just a "right to not be offended" clause, and such a right does not even explicitly exist in the Constitution.

Ed Brayton said,

Naturally, the religious right wants this bill to pass very badly because it would make it far more difficult for plaintiffs to bring suits against the government. And remember, they can only be awarded legal fees if they win the suit. What that means, in essence, is that the religious right is trying to rig the game. They lose such cases often in court and that frustrates them. So rather than develop better arguments to compete on a fair playing field, they want to rig the rules of the game to make it more expensive for the other side to play the game.

Wrong. The game is now rigged against the government. The present system encourages the ACLU et al. to be extravagant and wasteful in their lawsuits, and the threat of exorbitant attorney fee awards is used to blackmail government entities into doing the bidding of the ACLU et al.. In Kitzmiller v. Dover, there was a horde of 9-10 plaintiffs' attorneys of record and at least five of them were in the courtroom on every day of the six-week trial. The final negotiated award to the plaintiffs was a cool $1 million, and this was supposed to be a "bargain" because the original calculated bill was over $2 million. Ed Brayton and the other Darwinists over at Panda's Thumb (Ed Brayton is also a PT blogger) see nothing wrong in this. Outside attorneys working for the ACLU work for free and all attorney fee award money goes to the ACLU et al.. Attorney fee awards are a bonanza for the ACLU that provide a large part of the ACLU's income.

Marc Stern, representing the American Jewish Congress ..... testified before the committee ........ he testified against the bill ........ As he points out, the legislation has clearly not been well thought out. It actually declares that only injunctive relief can be issued by the courts -- the courts wouldn't even be able to make declaratory judgements in such cases.

Permanent injunctive relief automatically includes declaratory relief in the form of a finding that the plaintiff was wronged by the defendant, so the only declaratory relief that would be barred by HR 2679 would be declaratory relief unaccompanied by other forms of relief. In civil rights cases where there is a violation that can never be repeated or that is very unlikely to be repeated, permanent injunctive relief could be considered to be pointless and a court might grant just declaratory relief or could just declare the case to be moot. I think that courts should have the option of granting unaccompanied declaratory relief in these cases.

I think that this provision restricting the courts to injunctive relief in establishment clause cases is mainly aimed at awards of damages, but AFAICT awards of damages have not been a problem in establishment clause cases. If damages are awarded in such cases, it is usually just nominal damages (usually just $1 per plaintiff), and IMO nominal damages should not count as true damages or a separate kind of relief because nominal damages are really just tokens of vindication of other claims for relief.

Stern also notes that this legislation unfairly tips the balances against one side in court proceedings without regard to the merit of their claims. As an example, let's say a teacher decides to lead her class in prayer (despite the multiple court rulings that forbid this in the public schools). If the school allows her to do so and the family of one of the students in her class files suit on establishment clause grounds, they must bear the full cost of the litigation........

But let's reverse the example. Let's say that the school refuses to allow the teacher to lead her class in prayer and the teacher decides to sue, claiming that this ruling violates her right to free speech and free exercise of religion. Because the suit is on grounds other than the establishment clause, this legislation would not apply and the teacher could recover the legal costs if she wins the suit, while those objecting to the policy on the other side, because their suit would be on establishment clause grounds, would not.

I think the example of the teacher who sues the board for not allowing her to lead school prayer is very unrealistic, because school prayer involves the subtle coercion of both teacher authority and peer pressure and the courts generally greatly oppose coercion in religious matters. And I think that the danger of abuse of the civil rights attorney fee award statute is far greater in establishment clause suits than in free exercise suits. The free exercise clause has been used to sue the government for coercion of individuals or religious groups (as requiring teachers to teach evolution and subjecting religious groups to laws prohibiting discrimination in employment) and for unequal access of religious groups to public facilities and government benefits, but no one has ever used the free exercise clause to sue the government for not displaying religious symbols, not requiring school prayer, not requiring the teaching of creationism, etc., because these things are discretionary with the government where they are not prohibited or restricted by the courts. Critics of HR 2679 claim that this bill unfairly singles out establishment clause lawsuits but have presented no examples of exorbitant attorney fee awards in free exercise lawsuits or other kinds of civil rights lawsuits. Nonetheless, I think that a compromise bill that would cap attorney fee awards (including limits on hourly rates and how many attorneys may charge for their time) for both establishment clause and free exercise lawsuits would be a good idea -- this would prevent any possible inequities between these two kinds of suits and would provide for reasonable compensation of plaintiffs for legal costs involving the most egregious violations; an example of a fee capping statute is 18 USC §3006A (the dollar amounts in this statute are from 1964 and are badly in need of adjustment for inflation). Where violation of these clauses is truly egregious, the plaintiffs should not need a hell of a lot of legal representation. However, I think that the present bill is better than nothing because the abuse of attorney fee awards in establishment clause lawsuits has gotten out of hand. The ACLU, the Americans United for Separation of Church and State, the Darwinists, etc., shed crocodile tears over governments' burden in paying exorbitant fee awards in establishment clause cases and then turn around and use the threat of these awards to blackmail governments into doing their bidding.

Some commenters on Ed's blog have even suggested that HR 2679 is unconstitutional. That is of course nonsense, because there is no constitutional right to attorney fee awards or free representation in civil rights cases (however, the courts have held that indigent defendants are entitled to free legal representation in criminal cases, win or lose). In fact, before the civil rights attorney fee awards law was passed in 1976, there were no such awards for civil rights attorneys.

One thing I have been wondering about is that there appears to be nothing in 42 USC §1988(b) that prohibits an award of attorney fees to the defendant if the plaintiff loses in a civil rights lawsuit. It is generally assumed that only the plaintiff is eligible for the award, but that seems very one-sided.