Bill barring attorney fee awards in establishment clause cases reintroduced

I have written several articles about the last Congress's bills barring attorney fee awards to the plaintiffs in establishment clause cases. The House bill was HR 2679 and the Senate bill was S 3696. The House bill passed by a fairly large margin but the Senate bill was never voted upon by the judiciary committee. This year, the Senate bill has been re-introduced as S 415. The new bill is little changed from its predecessor, S 3696. The bill's short title has been changed from "Public Expressions of Religion Act" to "Public Expressions of Religion Protection Act." S 3696 had 18-20 co-sponsors (in addition to the sponsor) but S 415 has only 15 co-sponsors so far, and of these only one, Sen. Benjamin Nelson, is a Democrat, and he is well known for often siding with the Republicans. However, 15 cosponsors is not bad, because a study showed that for the 93rd through 101st Congresses ( 1973 - 1990), each Congress's averages for the numbers of Senate co-sponsors of (1) bills that passed the Senate and (2) Senate bills that were enacted into law were under 10, sometimes well under 10. The bill will be harder to push through the Senate in this Congress because Republican representation in the Senate has dropped since the last Congress.

An American Legion webpage announcing the new bill said,

In a recent "Intelligent Design" case against a school board, the ACLU received $2,000,000 in attorney’s fees by order of a judge -- although the law firm that represented the ACLU informed the court and public that it had acted pro bono and waived any attorney’s fees; these fees were pure profit to the ACLU.

Of course, this is obviously a reference to Kitzmiller v. Dover and has some errors: (1) the initial bill was over $2 million but was negotiated down to $1 million; (2) the final profit after expenses was about $750,000, which was split between the ACLU and the Americans United for Separation of Church and State; and (3) the plaintiffs' attorneys never informed the court or the public of any intention to waive attorney fees. The American Bar Association does not disapprove of an award of attorney fees to "pro bono" attorneys but urges that at least part of the award be donated to legal aid organizations. This is apparently the first time that the American Legion mentioned the Kitzmiller case in a promotion of these bills.

I reluctantly support these bills but I would much prefer a bill that would cap attorney fee awards in both establishment clause and free exercise clause lawsuits. My reasons are as follows:

(1) The threat of a modest fee award to plaintiffs provides some disincentive for establishment clause violations by government entities. Government entities often do not even have to pay for their own legal expenses because they are often represented by permanent in-house legal staffs.

(2) A cap on fee awards in both establishment clause and free exercise clause lawsuits would make a level playing field in situations where there are threats of both kinds of lawsuits, as when a government entity must decide on whether to allow a public expression of religious belief by private individuals.

(3) Plaintiffs are entitled to modest attorney fee awards in cases of egregious violations of the establishment clause.

(4) A bonus is that this proposed cap on fee awards would pass through Congress more easily than the present bill's total ban on fee awards in establishment clause cases.

The bill has separate sections -- Sec. 2 and Sec. 3 -- applying to state & local officials and federal officials, respectively. The provisions of both sections are similar. Here is Sec. 3:

(a) In General- Notwithstanding any other provision of law, a court shall not award reasonable fees and expenses of attorneys to the prevailing party on a claim of injury consisting of the violation of a prohibition in the Constitution against the establishment of religion brought against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction over such claim, and the remedies with respect to such a claim shall be limited to injunctive and declaratory relief.

(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, but is not limited to, 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. (emphasis added)

The limitation of remedies to injunctive and declaratory relief -- i.e., no real damages may be awarded -- is unnecessary and stupid. There has been no evidence that courts have abused their discretion to award real damages in establishment clause cases, and in some cases such an award is justified.

The enumeration of examples of establishment clause cases -- e.g., cases concerning (1) religious words or imagery in buildings and (2) the chartering of Boy Scout units by public entities -- is unnecessary and is also prejudicial because Congress is here telling the courts that these kinds of cases can never possibly involve real establishment clause violations!

Section 4 of the bill says that the bill shall apply to any case that is pending on the date of the bill's enactment. It is unfair to change the rules in midstream. This provision of the bill borders on ex post facto law.

Considering the difficulty of getting this bill through the Senate, I wonder why the bill's sponsors would load it up with all these distasteful provisions. However, I think that the biggest change that needs to be made to the bill to get it through the Senate is to change it to the fee cap bill that I proposed.

Finally, there is that boilerplate statement, "notwithstanding any other provision of law," which is an attempt to make a blanket repeal or invalidation of all provisions of other laws -- past or future -- that might conflict with this law. This statement is contrary to the following ruling in the Supreme Court case of Posadas v. National City Bank of New York, 296 US 497 (1936):

The cardinal rule is that repeals by implication are not favored. Where there are two acts upon the same subject, effect should be given to both if possible. There are two well-settled categories of repeals by implication: (1) Where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest; otherwise, at least as a general thing, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue to speak, so far as the two acts are the same, from the time of the first enactment. (emphasis added)

I assert that there can be no "clear and manifest" intention to repeal when a legislature does not know what provisions of existing law are affected by a new law.