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"PERA" Bill: Congressional moves to limit
separation of church and state lawsuits

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The American Values Agenda and Church-State separation:

According to American Atheists, 1 Republicans in Congress introduced a new legislative initiative in 2006-JUL. It is called the "American Values Agenda" (AVA). This may be an attempt to respond to the hopes of religious and social conservatives in advance of the 2006-NOV elections. Included on the agenda are bills to outlaw same-sex marriage, restrict access to abortion, legalize the display of Christian symbols on government land, ban human cloning and reduce the separation of church and state.

As part of this Agenda, Republicans in the U.S. House and Senate are making two attempts to lower the wall of separation of church and state:

bulletOne is to prepare for the confirmation of any additional appointments of strict constructionists as justices of the U.S. Supreme Court. Strict constructionists interpret the U.S. Constitution in terms of the intent of its authors. If a sufficient number are appointed, we can expect future rulings of the court to switch in very dramatic ways. After all, the when the authors of the Constitution lived, human slavery was legal, women's rights were restricted, homosexual behavior was a criminal offence, children were given the death penalty, freedom of the media applied only to newspapers. essentially all non-Natives at the time were Christians, etc. Many of the authors of the Constitution interpreted the First Amendment as prohibiting only the establishment of a single Christian denomination as the state religion.
bulletThe other attempt by Congress is to make it extremely difficult for individuals and groups to sue schools, or local or state governments who violate the separation of church and state principle that recent Supreme Courts have determined is required by the First Amendment.

This essay deals with the second attempt.

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Enforcing the separation of church and state through the courts:

Republicans have introduced the "Public Expression of Religion Act" (PERA). (This is an unfortunate name, because "PERA" is also used used to refer Personal Equity and Retirement Accounts and Public Employees' Retirement Association.)

Representative John Hostettler (R-IN) introduced the bill as HR 2679 in the House Judiciary Committee. It will be voted upon on 2006-JUL-26. If successful, it will be debated by the whole House in mid August. 2

Senator Sam Brownback (R-KS) introduced a similar bill, S 3696, to the Senate Committee on the Judiciary.

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Scope and text of the bill:

The bill would:

"amend all relevant federal laws to eliminate the authority of judges to award taxpayer-paid attorney fees ...  in lawsuits under the Establishment of Religion Clause of the First Amendment against veterans memorials, the Boy Scouts, or the public display of the Ten Commandments or other symbols of America's history with a religious aspect." 1

Actually, the bill would cover all lawsuits at the state and municipal level which try to enforce the separation of church and state.

The bill states:

Civil Action for Deprivation of Rights- Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended...by adding at the end the following...
"(b) The remedies with respect to a claim under this section where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion shall be limited to injunctive relief."

In essence, this amendment would deprive citizens of rights in cases where those citizens launch establishment clause lawsuits because they have been deprived of rights.

The bill further states:

Attorneys Fees- Section 722(b) of the Revised Statutes of the United States (42 U.S.C. 1988(b)) is amended by adding at the end 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." 4

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Implications of the bill:

The sponsors' position is that there have been many successful lawsuits to preserve the separation of church and state by prohibiting:

bulletIsolated Christian nativity scenes on government land. (These have been ruled unconstitutional in many cities and towns. However they can be easily made legal by converting them into a cultural display by adding secular symbols and symbols of other religions).
bulletChristian crosses in isolation in veterans' cemeteries. (Again, these have consistently been ruled unconstitutional by the courts. They can easily be made legal by adding secular and non-Christian religious symbols to make a cultural display.)
bulletIsolated displays of the Bible's Ten Commandments. (Again, these have consistently been ruled unconstitutional by the courts. They can easily be made legal by adding secular and non-Christian legal texts.)
bulletDiscrimination in membership on the basis of sexual orientation or religious belief by organizations which are supported by governments. One example involved the Boy Scouts of America which was unsuccessful to the plaintiffs.
bulletThe use of Christian religious symbols in city and state crests and mottos.

The sponsors' concern is that attorneys representing the plaintiffs obtain too much revenue from such cases at the expense of states and municipal governments. If the plaintiffs are forced to pay their own attorneys whether they win or lose, then far fewer court cases of this type will be launched.

In many cases, municipalities are strongly pressured by the public to continue violating the principle of separation of church by continuing to displaying nativity scenes, the Ten Commandments, Christian symbols in the city crest, etc. They almost always lose the lawsuit, and the public is stuck with the litigation costs, including the plaintiff's lawyers fees.

The bill is intended to make it prohibitively expensive for individuals or organizations to sue governments and school boards for violation of church and state. If the bill is passed and signed into law, such lawsuits could still proceed. However, if the government is found guilty of unconstitutional behavior, the plaintiff or plaintiffs would not be able to receive compensatory court awards to cover their attorney fees. The major effect of the bill would be to make it financially impossible for individuals and small groups to afford litigation in such cases. However, the bill is limited to municipal and state lawsuits involving separation of church and state conflicts. 

Ellen Johnson, President of American Atheists, writes:

"Pure and simple, this is a scheme to discourage and penalize citizens from challenging unconstitutional government promotion of religion. It means that the cost of defending constitutional rights will become prohibitively expensive for private citizens and advocacy groups. And it comes close to giving the government a 'free pass' whenever it
violates [the] separation" of church and state. 1

Cybercast, writing about Rep. Hostettler's position and comments by Mathew Staver, of Liberty Counsel, stated that PERA:

"...would amend two federal laws (42 U.S.C. 1983 and 1988) that the congressman reportedly said are currently used by groups like the American Civil Liberties Union (ACLU) 'to extort behavior out of individuals'."

"If PERA is not enacted, Staver said frivolous litigation by the ACLU will drain the funds that the federal government needs to spend on infrastructure and education."

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Positive reactions to the bill:

The American Legion has been joined by Focus on the Family, the American Center for Law and Justice and other religious and social conservative groups in support of this bill.

bulletThe American Legion issued a guide in 2006-MAR called: "In The Footsteps Of The Founders – A Guide To Defending American Values" It says, in part:

"There simply is no reasonable basis to support the profiteering in attorney fee awards ordered by judges in these (Establishment Clause) cases. The very threat of such fees has made elected bodies, large and small, surrender to … demands to secularly cleanse the public square." 5,6

bulletMathew Staver, head of the conservative Liberty Counsel, testified in the House Judiciary Committee that individuals would not be harmed by the bill, because this type of lawsuit is:

"... typically brought by public interest organizations, already financed by public, charitable support....

He stated that Establishment Clause jurisprudence is "confusing" and "conflicted" and that even the U.S. Supreme Court justices are confused about the issue. The justices, he said:

"...rule in one way on one case and the opposite way on another with no rationale between the two. We should not punish government officials for a misstep in this constitutional minefield." 3

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Negative reactions to the bill:

bulletThe American Jewish Congress opposes the bill. Their representative, Marc Stern, testified before the House Judiciary Committee -- the only person opposed to the bill who was permitted to speak. He said that it is:

 "true that local government bodies have foregone litigating Establishment Clause defenses against claims of free exercise or religious free speech because of concern about attorney's fees...."

"What possible reason could there be for treating citizen litigants substantially less well than prison litigants?...[PERA was proposed and supported by people with the] mistaken view that Establishment Clause litigation is brought only by those who detest religion, and who seek a naked public square.....The only practical way to make sure that all these claims can be heard is to ensure that access to the courts is on an equal footing."

"It is a sad fact of human nature that some of those who today protest official efforts to impose religion will, when they hold the reins of power, not hesitate to impose their secular views on others. When that happens, as it inevitably will, the sponsors of H.R. 2679 will rue the day that they supported this legislation." 3

bulletAmerican Athiests commented:

"The bill penalizes attorneys and organizations that defend the separation of church and state, but does nothing to prevent political leaders from draining the public treasury to defend unconstitutional practices in court."

"This legislation has nothing whatsoever to do with legitimate religious expression. It is all about government sponsorship and promotion of religion." 2

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References used:

  1. "Salvaging the Cross, Punishing Litigants," AANews, 2006-JUL-30.
  2. "House Judiciary Committee to vote on HR 2679..." American Atheists, 2006-JUL-26, at: http://www.atheists.org/
  3.  Alison Espach, "Bill Would Drop Lawyer Fee Damages in Religious Battles," CNS News, 2006-JUN-26, at: http://www.cnsnews.com/
  4. The text of HR 2679 is available at: http://thomas.loc.gov/
  5. "Legion campaign backs anti-ACLU bill. Opposes lawyers taking taxpayer funds in church-state cases," WorldNetDaily, 2006-MAR-04, at: http://www.worldnetdaily.com/
  6. A copy of the Legion's guide can be obtained by sending an Email to: pr@legion.org

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Copyright © 2006 by Ontario Consultants on Religious Tolerance
Latest update: 2005-JUL-30
Author: B.A. Robinson

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