Update on S 3696

As I previously reported, HR 2679, the House version of the Public Expressions of Religion Act (PERA), the bill that would bar attorney fee awards to winning plaintiffs in establishment clause lawsuits, passed by a wide margin, 244 to 173. Sadly, however, a broadcast email from the StoptheACLU Coalition said that the outlook for the Senate version, S 3696, is not good:

To our disappointment, the U.S. Senate is not expected to pick up this legislation in a brief lame duck session after the November 7th election; however, if you are concerned that this bill gets a hearing before the official end of the 109th Congress, contact Sen. Majority Leader Bill Frist by either calling his office at (202) 224-3344 or fax at (202) 228-1264 and urge him to push for a vote on Senate Bill 3696 prior to adjournment.

We urge you to contact your two U.S. senators and ask them to vote YES on SB 3696, should it come up for a vote.

I sent the following email to the StoptheACLU Coalition:

I am very disappointed to learn that the outlook for S 3696, the Public Expression of Religion Act (PERA), the bill that would bar attorney fee awards to winning plaintiffs in establishment clause cases, is not good.

I think that a bill that would cap attorney fee awards in both establishment clause and free exercise clause lawsuits would have many of the same benefits as the current version of S 3696 and have a much better chance of passage. It is much harder to argue against a prohibition of exorbitant fee awards than against a complete prohibition of fee awards.

A fee cap law would still allow attorney fee awards for the worst establishment clause abuses, e.g., school prayer. I am opposed to school prayer because it invades the privacy of religious belief. I am afraid that PERA as now written could lead to a great increase in efforts to impose school prayer.

Also, there are some situations where there may be threats of both establishment clause and free-exercise clause lawsuits -- e.g., where a person or private group tries to publicly express religious belief. Government prohibition of such expression could lead to a free-exercise suit and government allowance of such expression could lead to an establishment clause suit. Capping fees for both kinds of suits would strike a balance.

What would be a good fee cap? I feel that a clear-cut violation of one of those clauses -- e.g., an attempt to impose school prayer -- should cost the plaintiff almost nothing. However, even a generous cap, say, 80 hours @ $300/hr. or $24,000, which at 40/hrs. week would provide for 1 full week of court time and 1 full week of office time, would be an order-of-magnitude improvement over some of the past awards which have been in the range of $1 million. Any establishment clause suit that would require more time from the plaintiffs' attorneys would be so marginal as to hardly be worth worrying about. If more attorney time than this is needed, plaintiffs and/or their pro bono legal representatives should be on their own. I think that the cap should be in terms of hours instead of dollars in order to allow for different pay rates and inflation. Also, I think there should be an allowance for the extra fees of appeals.

I think that even a strong supporter of the current versions of S 3696 and HR 2679 could support my fee cap idea because half a loaf is better than none. These fee awards have gotten out of hand and something needs to be done promptly.

Sincerely,

Larry Fafarman

BTW, there are two "StoptheACLU" outfits -- StoptheACLU and StoptheACLU Coalition.

The Senate and House versions of the bill appear to be identical except for a section titled "Effective Date" in the House version (more about this section later). I am somewhat disturbed by these bills' provisions intended to benefit the Boy Scouts (the following provision is for suits against the federal government but there is a similar provision for suits against state and local governments):

(b) Definition- As used in this section, the term `a claim of injury consisting of the violation of a prohibition in the Constitution against the establishment of religion' includes a claim of injury resulting from--

(1) a veterans' memorial's containing religious words or imagery;

(2) a Federal building's containing religious words or imagery;

(3) the presence of religious words or imagery in the official seal of the United States and in its currency and official Pledge; or

(4) the chartering of Boy Scout units by components of the Armed Forces of the United States and by other public entities, and the Boy Scouts' using Department of Defense and other public installations.

I don't think that this provision would give much protection to the Boy Scouts, because suits against government benefits for the Boy Scouts are likely to be based on the 14th Amendment and the free-exercise clause as well as the establishment clause. As for the Boy Scouts' discrimination on the basis of religion and sexual orientation, I think that the Boy Scouts are still entitled to free use of public facilities under the following conditions: (1) such use is not exclusive or preferential and (2) such use is at no expense to the government. An example would be the use of public school facilities after school hours. On the other hand, I feel that the Boy Scouts are not entitled to exclusive or preferential use of a public facility for free or at a discounted rental price. And I feel that this is not just a matter of the Boy Scouts' practice of discrimination -- I feel that no private organization is automatically entitled to a benefit that costs the government money, whether or not that organization discriminates and whether or not similar organizations receive a similar benefit. The Sea Scouts recently sued the city of Berkeley, Calif., for discontinuing free berths for the Scouts' boats in the city's marina (the Sea Scouts are now paying for a single berth costing $500/month). The California Supreme Court unanimously ruled against the Scouts and the US Supreme Court declined to review the decision. Also, the ACLU sued San Diego, demanding that the city end the Boy Scouts' leases of Balboa Park land at $1/yr. and Fiesta Island land for free. After a federal district court judge ruled against San Diego, the city decided not to appeal and to give the plaintiffs nearly $1 million in attorney fees and court costs. I wonder how they ran up such a big legal bill because I presume that there was no expert witness testimony, unlike the situation in Kitzmiller v. Dover (original bill over $2 million, negotiated down to $1 million).

The House version's section titled "Effective Date" says,

This Act and the amendments made by this Act take effect on the date of the enactment of this Act and apply to any case that--

(1) is pending on such date of enactment; or

(2) is commenced on or after such date of enactment.

Applying the bill to pending lawsuits is of course unfair because past decisions of the plaintiffs and their legal representatives (concerning whether to sue or appeal, whether to represent the plaintiffs, etc.) would be based on the rules existing when those decisions were made.