Legislating Violations of the Constitution (ACLU swills at the public trough)

The Washinton Post ^ | September 30, 2006 | Erwin Chemerinsky

[Mrs. Don-o]

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.

[snip]

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. ...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 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.

...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.

[BW2221]

"Same place that it separates Church and State; "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;""

Prohibiting establishment of a national religion (e.g. Church of England) does not equate to the "separation of church and state" and didn't until around 1960). And, what does this have to do with paying lawyers' fees?

[NurdlyPeon]

However, this bad law is going to hurt the ACLJ and Thomas Moore Center and other conservative groups who do stand up for free exercise. Just as much as the ACLU and maybe worse. The law of unintended consequences is going to bite.

How? Please elaborate.

[Mrs. Don-o]

"1. Where in the Constitution does it say the ACLU should be publicly funded? Must be something I missed."

From the article: it's a federal statute:

"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. "

"2. Is Professor Erwin Chemerinsky an ACLU member? If so, it should be stated."

Here's a link to the ACLU News which announces an award honoring Prof. Erwin Chemierinsky, whose "commitment to the ACLU over the years goes unmatched"--- but evidently not unfunded.

[longtermmemmory]

The problem is the old law provided that even if the ACLU lost they STILL got attorney fees.

[kcvl]

Erwin Chemerinsky

Valarie Plame & Joe Wilson's 'new' attorney. Of course, he is not biased by any means. /sarcasm

[gcruse]

"The First Amendment has a Free Exercise Clause as well as an Establishment Clause."

Doesn't that mean the individual is free to exercise his religion? I don't think it means he can use government property or taxpayer money to fund that exercise.

No one's closing the church, just getting religion out of governance.

[mcvey]

You know, I had to read that post a couple of times before I could thought I got it.

Wow!

We, the people, were underwriting what was, at best, a special interest group's special interpretation of the constitution? I am teaching the creation of the constitution this term--this will make a great teaching moment.

McVey

[Unam Sanctam]

The scope of both the Free Exercise and Establishment Clauses need interpretation. The ACLU's interpretation is simply one extreme interpretation and not necessarily correct. Indeed, it was not the jurisprudential interpretation of the First Amendment for most of the Republic's history. The government can make reasonable accommodation to the expression of religious beliefs of citizens if it is non-coercive, e.g., allowing people to recite the Pledge with the words "under God" (no one is forced to say the words "under God"), celebrating a national day of Thanksgiving to God, as President Washington declared several times, or having a graduation speaker at a public high school refer (gasp!) to the role their personal faith plays in their lives. The ACLU takes an extreme interpretation that in fact restricts the rights of religious believers to freedom of belief, speech and expression in public contexts. Their extreme interpretation of the Constitution creates a government that is not neutral to religion but actively hostile to the same. They do not need to be subsidized for their actions from the public purse.

[dhuffman@awod.com]

Sorry. Establishment of a national religion is a bathetic reading that I was trying to steer you away from with my careful definition of 'respecting' and 'establishment.' And the point was ironic - a pretense of ignorance (Socratic irony). But since you misread the establishment clause the irony was too subtle.

Write small, miss small. Use large caliber words.

[Mrs. Don-o]

"I don't think it means he can use government property or taxpayer money to fund that [religious] exercise."

A valedictorian thanking God in a commencement speech is not using government property or taxpayer money to fund a religious exercise. Crosses at memorials for fallen soldiers are not "unconstitutional symbols." And abstinence education --- assuming it does not require a profession of religious belief ---is not "impermissible" in a public classroom.

What the ACLU is doing is not preventing Congress from establishing religion, but, in many cases, preventing religious citizens from expressing their beliefs, displaying their culture, and promoting their values in the free marketplace of ideas.

[thomaswest]

The losing party in a law suit usually pays as part of the final settlement. Sometimes the parties split the costs, recognizing that both sides have incurred costs.

When a local governmental authority deliberately violates the Constitution out of self-aggrandizing posturing, they should suffer the costs. The TSA is a good example.

[thomaswest]

Every time ACLJ and Thomas More bring a case to enforce "free exercise" against some principal's censorship, they win the cost of law suit.

This law denies them recouping their costs in defending free expression. These cases are far more numerous than ACLU cases about "establishment" and ACLU cases supporting "free expression".

Note that ACLJ and More Center did NOT support this bill.

[thomaswest]

The ACLU takes an extreme interpretation that in fact restricts the rights of religious believers to freedom of belief, ....creates a government that is not neutral to religion but actively hostile to the same.

This is nonsense. What power does the ACLU or anyone have on your freedom of conscience to believe whatever you choose? You have the freedom to believe in your heart whatever you wish. Belief in or disbelief in psychics, astral gurus, faeries, this god or another, etc.

Our governments are required to be neutral in matters of such religious faith beliefs. Organized religious groups do not desire neutrality--they want government to give favor to their faith beliefs.

A secular government is one that is neutral in all these matters of personal faith belief. That is the high standard that our Constitution urges on us Americans.

[donmeaker]

As a practical matter, the local government authority doesn't suffer the costs. Rather the citizens, who may have been oppressed by that government authority, get oppressed again by court ordered taxes to pay for the self appointed lawyer.

If the oppressed people feel the oppression enough to hire a lawyer, then they will be glad to pay for their liberation.

The problem I have with tort law in general is the paradigm that a doctor who earns his money by his service must pay for someone elses hurt, even if they are very marginally connected to that hurt.

Then after the case is over, the person who is hurt must pay the lawyer for his services.


So, does hurt trump work, or does work trump hurt? It seems that the answer is either, depending on which provides the most money to the lawyers.

[thomaswest]

When voters see what their "pious" representatives have done, then they may elect better people.

This certainly happened in Dover, PA.

The part that amuses me is that these IDiots thought they could gain voter support by shouting how much they love THEIR god and disparaging all others. Despite much shouting for their religiosity, they lost the election.

This happened again in Kansas. The ultras, posturing to be more holy than thou, lost. The Discovery Institute ID types have a consistent record of losing every time they stick their foot in.

One has to wonder what the DI accomplished with spending $2.12 million in the Dover case (and getting the Thomas More Center pissed off at them) and wasting $1.3 million in TV ads in Kansas.

If you get an endorsement from DI "intelligent design" this is a solid predictor that you lose the election.

[FreedomFighter78]

"Their extreme interpretation of the Constitution creates a government that is not neutral to religion but actively hostile to the same."

The ACLU does take a pretty strong view on establishment clause cases. BUT, they also strongly defend the individual citizen's right to free expression.

ACLU of Virginia Defends Federal Law Guaranteeing Religious Rights of Prisoners

ACLU of New Jersey Defends Second-Grader's Right to Sing Religious Song

ACLU of Georgia and Baptist Church File Religious Discrimination Lawsuit

ACLU of Rhode Island Files Appeal on Behalf of Christian Prisoner Barred from Preaching at Religious Services

ACLU of Michigan Defends Catholic Man Coerced to Convert to Pentecostal Faith in Drug Rehab Program

ACLU Helps Free New Mexico Street Preacher From Prison

ACLU Applauds Supreme Court Ruling Protecting Religious Liberty in Prisons