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The "our arguments can't seem to win in court, so we'll just discourage you from suing us unless you're independently wealthy" ruse. Nicely done, GOP. Nicely done.
Legislating Violations of the Cons ution
By Erwin Chemerinsky
Special to washingtonpost.com
Saturday, September 30, 2006; 12:00 AM
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 en led to recover attorneys fees.
The bill has only one purpose: to prevent suits challenging uncons utional government actions advancing religion.
A federal statute, 42 United States Code section 1988, provides that attorneys are en led to recover compensation for their fees if they successfully represent a plaintiff asserting a violation of his or her cons utional or civil rights. For example, a lawyer who successfully sues on behalf of a victim of racial discrimination or police abuse is en led to recover attorney's fees from the defendant who acted wrongfully. Any plaintiff who successfully sues to remedy a violation of the Cons ution or a federal civil rights statute is en led 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 cons utional 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 uncons utional government behavior. Congress rightly recognized that attorneys who bring such actions are serving society's interests by stopping the government from violating the Cons ution. Indeed, the potential for such suits deters government wrong-doing and increases the likelihood that the Cons ution will be followed.
( The Repugs are dead-set in favor of governtment wrong-doing, as long as they are in govt )
The attorneys' fees statute has worked well for almost 30 years. Lawyers receive attorneys' fees under the law only if their claim is meritorious and they win in court. Unsuccessful lawyers get nothing under the law. This creates a strong disincentive to frivolous suits and encourages lawyers to bring only clearly meritorious ones.
Despite the effectiveness of this statute, conservatives 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 cons utional provision. For instance, a lawyer who successfully challenged uncons utional prayers in schools or uncons utional symbols on religious property or impermissible aid to religious groups would -- under the bill -- not be en led 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 Cons ution and federal civil rights statutes.
Such a bill could have only one motive: to protect uncons utional 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 uncons utional. 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 cons utional 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 uncons utional 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 Cons ution. 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.
© 2006 Washingtonpost.Newsweek Interactive
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Another "limtus paper" test that will be used to attack and slime any Congressman who votes against it as "un-Christian", "anit-God", "pro-atheist", etc, etc, when in fact the proponents are blatantly anti-Cons utional.
The "our arguments can't seem to win in court, so we'll just discourage you from suing us unless you're independently wealthy" ruse. Nicely done, GOP. Nicely done.
Exactly what article of the Cons ution is no longer available to you?
Only the Articles I can afford. And I'm not insanely wealthy like the rabid "Christian" evangelicials and religious nutter anti-Americans.
Damn, the ACLU won't be able to sue for the right of Muslims to blow up without getting profiled, what a ...
Nice effort to interject your new mantra into a discussion where it has no application. The point of the piece isn't that any article or amendment of the Cons ution is no longer available to anyone. The point is that Congress is attempting to legislate out litigation concerning governmental violations of one particular clause of one particular amendment. It strikes me as the functional equivalent of the kid who takes his ball because he can't win. But it also strikes me as the first step down a slippery slope. If Congress can legislate out the availability of litigation to challenge Establishment Clause violations, why not do the same with Free Speech challenges or Due Process complaints? Indeed, why not just deprive anyone without money of any realistic opportunity to vindicate cons utional rights? It's pretty easy to win a cons utional argument when individuals can't afford to sue you for violations.
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