Hostettler Defends "Public Expression of Religion Act" To Stop "Chilling Effect" On Religious Expression

he nation's largest veterans' organization has announced a campaign to support a controversial bill that would stop courts from awarding legal fees in First Amendment establishment clause cases.

   Meeting recently in Washington, DC for its annual convention, the American Legion said that it would launch a new effort on behalf of H.R. 2679, the "Public Expression of Religion Act." The proposed statute, introduced in March, 2005 by Rep. John Hostettler (R-IN), would amend Section 42 of the United States Code. The introduction states:

"To amend the Revised Statutes of the United States to eliminate the chilling effect on the constitutionally protected expression of religion by State and local officials that results from the threat that potential litigants may seek damages and attorney's fee."

Under Section 2 of PERA, the bill provides:

"(b) The remedies with respect to a claim under this section where the deprivation consists of a violation of prohibition in the Constitution against the establishment of religion shall be limited to injunctive relief."

"(b) Attorneys Fees - Section 722(b) of the Revised Statutes of the United States (42 USC 1988) is amended by adding at the end of the following: 'However, no fees shall be awarded under this subsection with respect to a claim described in subsection (b) of section nineteen hundred and seventy nine."

   The legislation would amend the Civil Rights Attorney Fees Act to stop courts from awarding legal fees or damages to any individual or group which successfully brings suit under the Establishment of Religion clause of the First Amendment. Supporters of the measure argue that organizations like the American Civil Liberties Union have reaped enormous compensation from such actions, costs which are ultimately paid by taxpayers. They add that the mere threat of lawsuits is having a "stifling effect" on religious practices, specifically the public display of the Ten Commandments and other sectarian symbols on public property.

   Attempts to outlaw or discourage litigation over church-state separation issues are occasionally introduced in Congress and state legislatures under the pretext of protecting religious freedom and ending "excessive" attorney fees. A proposal by Rep. James DeMint of South Carolina disallowed "attorney fees in any action claiming that a public school or its agent violates the constitutional prohibition against the establishment of religion by permitting, facilitating, or accommodating a student's religious expression."

   In Maryland, a state version of the Religious Freedom Restoration Act (HB 966) contained a provision deleting compensation for attorneys pursuing First Amendment cases. Neither measure was enacted into law.

   The American Legion became interested in the issue as result of litigation over a six-foot Christian cross erected in 1934 as a veteran's monument at the Mohave National Preserve. In 2001, the American Civil Liberties Union filed suit arguing that the cross violated the First Amendment as a "religious fixture" on public property. A federal judge eventually ordered the monument dismantled, and attorneys received $63,000 in compensatory fees.

   At its 2004 gathering, the Legion approved a resolution to keep the memorial, warning: "There is nothing in the law to prevent groups like the ACLU from filing Establishment Clause lawsuits against ... sacred grounds and then receiving taxpayer-paid attorney fees."

   In a statement announcing its "National Awareness Campaign to Stop Abuse of the Taxpayer," Legion commander Tom Bock said that the original intent of the U.S. Code awarding legal fees was "intended to help the poor obtain legal counsel in claims of real, tangible violations of civil right." He added that the ruling in the Mohave cross case was "a very dangerous precedent," and called for "a ground swell of public demand on lawmakers to pass PERA in the 109th Congress."

   To launch the campaign, the Legion has issued a printed and pdf file document, "In the Footsteps of the Founders -- A Guide to Defending American Values" which has already been sent to all members of the U.S. Congress. The conservative worldnetdaily.com web site claimed "many legislators expressed surprise at the size of the attorney fees sought and gained by the ACLU and indicated support for the bill."

   The guide stated: "There simply is no reasonable basis to support the profiteering in attorney fee awards ordered by judges in these cases. The very threat of such fees has made elected bodies, large and small, surrender to the ACLU's demands to secularly cleanse the public square."

   Commander Bock cited other cases along the Mohave cross dispute, including legal actions involving the Boy Scouts of America. The American Legion press release noted: "Bock believes that stopping the flow of millions of dollars of taxpayer money to the ACLU and other organizations should remove or seriously decrease the incentive for them to pursue self-enriching suits against American values."

   Attorney Eddie Tabash who has been involved with state-church separation issues said that the "Public Expression of Religion Act" was "patently unconstitutional," and was simply another strategy to discourage litigation over government practices that violated the First Amendment.

   Ellen Johnson, president of American Atheists, added that the Hostettler bill "is not for the benefit of the taxpayer, but for government and religious leaders who insist on eroding the wall of separation between church and state."

   "They know, as do we, that most attorneys are simply unable to work on long-term, complex litigation if they don't receive some compensatory fee," Johnson said. "We're not talking about donating a few free hours 'to the cause.' These cases require an enormous amount of time and effort."

   Johnson said that governments are often quite willing to squander taxpayer funds in order to defend their unconstitutional practices.

   "Whether it is school prayer or defending a religious monument in the public square, state and local governments are frequently very short-sighted and belligerent when caught doing something that violates the First Amendment," Johnson said. "If the Legion and Representative Hostettler really wish to save all of us some money, they should work to stop unconstitutional practices that promote religion."

[text only]