Tuesday, October 03, 2006

Legislating Violations of the Constitution

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.


[C]onservatives in the House of Representatives have now passed an insidious bill to try and limit enforcement of the Establishment Clause of the First Amendment, by denying attorneys fees to lawyers who successfully challenge government actions as violating this key constitutional provision. For instance, a lawyer who successfully challenged unconstitutional prayers in schools or unconstitutional symbols on religious property or impermissible aid to religious groups would -- under the bill -- not be entitled to recover attorneys' fees. The bill, if enacted, would treat suits to enforce the Establishment Clause different from litigation to enforce all of the other provisions of the Constitution and federal civil rights statutes.

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.

Those who successfully prove the government has violated their constitutional rights would, under the bill, be required to pay their own legal fees. Few people can afford to do so. Without the possibility of attorneys' fees, individuals who suffer unconstitutional religious persecution often will be unable to sue. The bill applies even to cases involving illegal religious coercion of public school children or blatant discrimination against particular religions.

The passage of this bill by the House is a disturbing achievement by those who seek to undermine our nation's commitment to fundamental freedoms laid out in the Constitution. Should it come up for a vote, it is imperative that the Senate reject this nefarious proposal. The religious right is looking for a way to get away with violating the Establishment Clause and is now one step closer to this goal. The Establishment Clause is no less important than any other part of the Bill of Rights and suits to enforce it should be treated no differently than any other litigation to enforce civil liberties and civil rights.

Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science, at Duke University

Legislating Violations of the Constitution, via Religious Freaks

"The bill has only one purpose: to prevent suits challenging unconstitutional government actions advancing religion."

of Republicans supported it and 87% of Democrats opposed.


Jack's Shack said...

So many important issues and this is the nonsense we have to deal with.

Laura said...

And your last post was about how these guys are bullies and they fight dirty.

These are real "American" "Family" values right? Undermine the system from within to prevent your opponents from even having a chance to challenge you.

I am so sick of these clowns. Why single out religion here? That's a rhetorical question, we all know why - that's what Jesus would do...

CyberKitten said...

Pretty much what I expect from the present Administration..

Half Sigma said...

I am not a fan of attorneys recovering fees for any sort of civil rights suit, it encourages suits for the sole purpose of advancing the attorney's interests and not the clients' interests.

Jewish Atheist said...


That's a different issue. The point here is that the bill is treating religious violations of the Constitution differently from all others.

Anyway, I don't follow your logic. It seems to me that the attorney would have more of a conflict of interest in a case where his/her client pays regardless of outcome.

LMark said...

half sigma-

As a practical matter, though, it's the only way to get these provisions enforced.

Random said...


Well the attourneys could work pro bono if the principles were *that* important, of course. Or some charitable organisation (the ACLU?) could stump up the cash for important cases. But that would require lawyers to put principle before profit...

Speaking slightly more seriously, I think JA wins on this one - a stupid bill, drafted for stupid reasons and endorsed by stupid people. One furthermore that is certain to be thrown out the first time it is put before the Supreme Court (assuming it even manages to clear the Senate, which I doubt). Politics at it's crassest, in other words.