http://www.aclu.org/religion/gen/26232leg20060725.html
July 25, 2006
U.S. House of Representatives
Committee on the Judiciary
2138 Rayburn House Office Building
Washington, DC 20515
RE: THE PUBLIC EXPRESSION OF RELIGION ACT (H.R. 2679)
Dear Representative,
On behalf of the American Civil Liberties Union (ACLU), and its hundreds of
thousands of members, activists, and fifty-three affiliates nationwide, we
urge you to oppose H.R. 2679, the “Public Expression of Religion Act of
2005.” This bill would bar damages and awards of attorneys’ fees to
prevailing parties asserting their fundamental constitutional rights in
cases brought under the Establishment Clause of the First Amendment to the
U.S. Constitution.1 H.R. 2679 would limit the longstanding remedies
available in cases brought under the Establishment Clause under 42 U.S.C.
1988, which provides for attorneys’ fees and costs in all successful cases
involving constitutional and civil rights violations.
H.R. 2679 Shuts the Courthouse Doors.
If this bill were to become law, Congress would, for the first time, single
out one area protected by the Bill of Rights and prevent its full
enforcement. The only remedy available to plaintiffs bringing Establishment
Clause lawsuits would be injunctive relief. This prohibition would apply
even to cases involving illegal religious coercion of public school
students or blatant discrimination against particular religions.
Congress has determined that attorneys’ fee awards in civil rights and
constitutional cases, including Establishment Clause cases, are necessary
to help prevailing parties vindicate their civil rights, and to enable
vigorous enforcement of these protections. The Senate Judiciary Committee
has found these fees to be “an integral part of the remedies necessary to
obtain . . . compliance.”2 The Senate emphasized that “[i]f the cost of
private enforcement actions becomes too great, there will be no private
enforcement.
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1. The Establishment Clause of the First Amendment requires the separation
of church and state. See U.S. CONST. amend. I, cl. 1.
2. S. REP. NO. 94-1011, at 5 (1976), reprinted in 1776 U.S.C.C.A.N. 5908,
5913.
2
If our civil rights laws are not to become mere hollow pronouncements which
the average citizen cannot enforce, we must maintain the traditionally
effective remedy of fee shifting in these cases.”3
Unfortunately, H.R. 2679 would turn the Establishment Clause into a hollow
pronouncement. Indeed, the very purpose of this bill is to make it more
difficult for citizens to challenge violations of the Establishment Clause.
It would require plaintiffs who have successfully proven that the
government has violated their constitutional rights to pay their legal fees
-- often totaling tens, if not hundreds, of thousands of dollars. Few
citizens can afford to do so, but more importantly, citizens should not be
required to do so where there is a finding that our government has engaged
in unconstitutional behavior.
The elimination of attorneys’ fees for Establishment Clause cases would
deter attorneys from taking cases in which the government has violated the
Constitution; thereby leaving injured parties without representation and
insulating serious constitutional violations from judicial review. This
effectively leaves religious minorities unable to obtain counsel in pursuit
of their First Amendment rights under the Establishment Clause.
H.R. 2679 Denies Just Compensation.
Despite proponents’ assertions to the contrary, attorneys’ fees are not
awarded in Establishment Clause cases as a punitive measure. Rather, as in
any case where the government violates its citizens’ civil or
constitutional rights, the award of attorneys’ fees is reasonable
compensation for the expenses of litigation awarded at the discretion of
the court. After intensive fact-finding, Congress determined that these
fees “are adequate to attract competent counsel, but . . . do not produce
windfalls to attorneys.”4 HR. 2679 is contrary to good public policy -- it
reduces enforcement of constitutional rights; it has a chilling effect on
those who have been harmed by the government; and it prevents attorneys
from acting in the public’s good. The award of fees in Establishment Clause
cases is not a means for attorneys to receive unjust windfalls -- it is
designed to assist those whose government has failed them.
H.R. 2679 Favors Enforcement of the Free Exercise Clause Over the
Establishment Clause.
Among the greatest religious protections granted to American citizens are
the Establishment Clause and the Free Exercise Clause.5 The right to
practice religion, or no religion at all, is among the most fundamental of
the freedoms guaranteed by the Bill of Rights. Religious liberty can only
truly flourish when a government protects the Free Exercise of religion
while prohibiting government-sponsored endorsement, coercion and funding of
religion. H.R.
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3. Id. at 6.
4. S. REP. NO. 94-1011, at 6 (1976), reprinted in 1776 U.S.C.C.A.N. 5908,
5913.
5. The Free Exercise clause of the First Amendment guarantees the right to
practice one's religion free of government interference. See U.S. CONST.
amend. I, cl. 2.
3
2679 creates an arbitrary congressional policy in favor of the enforcement
of the Free Exercise Clause, while simultaneously impeding individuals
wronged by the government under the Establishment Clause.
Through the denial of attorneys’ fee awards under H.R. 2679, plaintiffs
will be able to afford the expense of litigation only when they are seeking
to protect certain constitutional rights but not others. This bad
congressional policy serves to create a dangerous double standard by
favoring cases brought under the Free Exercise Clause, but severely
restricting cases under the Establishment clause.
Proponents of this bill have been spreading the urban myth that religious
symbols on gravestones at military cemeteries will be threatened without
passage of H.R. 2679.
The supposedly “threatened” religious markers on gravestones has become a
red-herring – indeed it is an urban myth -- that has been invoked as a
reason for the denial of attorneys’ fees in Establishment Clause cases. It
should be noted – in light of the wildly inaccurate statements that have
repeatedly been made – that religious symbols on soldiers’ grave markers in
military cemeteries (including Arlington National Cemetery) are entirely
constitutional.
Religious symbols on personal gravestones are vastly different from
government-sponsored religious symbols or sectarian religious symbols on
government- owned property. Gravestones and the symbols placed upon them
are the choice of individual service members and their families. The ACLU
would in fact vigorously defend the first amendment rights of all veteran
Americans and service members to display the religious symbol of their
choosing on their gravestone.
If the Constitution is to be meaningful, every American should have equal
access to the federal courts to vindicate his or her fundamental
constitutional rights. The ability to recover attorneys’ fees in successful
cases is an essential component of the enforcement of these rights, as
Congress has long recognized. The bill is a direct attack on the religious
freedoms of individuals, as it effectively shuts the door for redress for
all suits involving the Establishment Clause. We urge members of Congress
to oppose H.R. 2679.
If you have any questions, please contact Terri Schroeder, Senior Lobbyist
at (202) 675-2324.
Sincerely,
Sincerely,
Caroline Fredrickson
Director
Terri Ann Schroeder
Senior Lobbyist
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You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the US and a couple from overseas as well]
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.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
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USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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