Back in March, I posted about an effort, supported by the American Legion, to pass a law that would stifle religious liberty by prohibiting the winner of a consitiutional violation case from collecting legal fees from the loser – as is done in most civil cases in the US. (See: American Legion backs law in attempt to stifle religious dissent )
H.R. 2679 — the “Public Expression of Religion Act” — would amend a portion of the current U.S. Code and eliminate attorney fees in legal cases where government violated the constitutional separation of church and state. A vote is expected in the US House on Tuesday 9/26.
Why is this bill a threat to civil liberties?
The use of legal fees paid by the loser of a suit is one way that an average citizen can have their day in court. Few lawyers will work for free and if they have to depend on the limited funds of a plantiff then they amount of legal work on a case will be the same amount. The government (federal, state, and local) has lawyers on retainer for such suits. An average citizen couldn’t possibly compete with tax supported legal help provided to the government in the suit.
Legal fees is also a way of settling suits before a trial. A government or an agency may see the potential payment of legal fees as more of a cost than settling the suit in favor of the plantiff. If the bill becomes law then a government or an agency would lack inducement to settle and we arrive back at the first point mentioned above.
H.R. 2679 also is unfair in that it only applies to church and state cases – thereby giving special protection to violations committed against minority religions and the non-religious. It is an end-run around the wall of separation.
The supporters of this bill know that they cannot legally stop citizens from challenges government abuses when it comes to the separation of church and state,” said Johnson. “So they’re trying to achieve that objective by indirect means, like making it prohibitively expensive for private groups and individuals to bear the expense of taking officials to court when they violate the constitution. They’re attempting to do by quasi-legal means what they know they can’t accomplish otherwise.
Why would any law abiding American object to paying attorneys who successfully attack unlawful behavior by public officials. The lawyers are not paid if the case is dismissed or otherwise lost. How can the pending bill protect the public when it rewards scofflaws in public places and punishes those lawyers who dare to prove the violations to American juries?
There is no hint in this legislation that lawyers not be paid if they are successful in legal actions that expose public officials who endorse or practice racial discrimination, sexual harassment, or unequal treatment of citizens because of age or disabilities. Why then deny attorney fees to those lawyers who succeed in exposing officials who want to make their religious views everyone’s religious views? Do those supporting PERA think the First Amendment is wrong?
Edwin Kagin, National Legal Director American Atheists, Inc.
Those of you who support real religious liberty should let your elected officials know that H.R. 2679 is a bad bill and a bad precedent. To find out how to contact them use the following link: