U.S. Senate
Judiciary Committee
Subcommittee
on the Constitution, Civil Rights and Property Rights
Washington,
DC 20515
Re: THE VETERANS MEMORIALS, BOY SCOUTS,
PUBLIC SEALS AND OTHER PUBLIC EXPRESSIONS OF RELIGION PROTECTION ACT of 2006 (s.
3696)
Dear Senator:
On behalf of the American Civil Liberties Union
(ACLU), and its hundreds of thousands of members, activists, and fifty-three
affiliates nationwide, we urge you to oppose S. 3696, The Veterans’ Memorials,
Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection
Act of 2006. This bill would bar damages and awards of
attorney’s fees to prevailing parties asserting their fundamental constitutional
rights in cases brought under the Establishment Clause of the First Amendment to
the U.S. Constitution.[1] S. 3696 would limit the longstanding
remedies available in cases brought under the Establishment Clause under 42
U.S.C. 1988, which provides for attorneys’ fees and costs in all successful cases involving
constitutional and civil rights violations.
S. 3696 Shuts the Courthouse
Doors.
If this bill were to become law, Congress would,
for the first time, single out one area protected by the Bill of Rights and
prevent its full enforcement. The
only remedy available to plaintiffs bringing Establishment Clause lawsuits would
be injunctive relief. This
prohibition would apply even to cases involving illegal religious coercion of
public school students or blatant discrimination against particular
religions.
Congress long ago determined that attorneys’ fee
awards in civil rights and constitutional cases, including Establishment Clause
cases, are necessary to help prevailing parties vindicate their civil rights,
and to enable vigorous enforcement of these protections. The Senate Judiciary Committee has found
these fees to be “an integral part of the remedies necessary to obtain . . .
compliance.”[2] The Senate emphasized that “[i]f the
cost of private enforcement actions becomes too great, there will be no private
enforcement. If our civil rights
laws are not to become mere hollow pronouncements which the average citizen
cannot enforce, we must maintain the traditionally effective remedy of fee
shifting in these cases.”[3]
Unfortunately, S. 3696 would turn the
Establishment Clause into a hollow pronouncement. Indeed, the very purpose of this bill is
to make it more difficult for citizens to challenge violations of the
Establishment Clause, raising serious constitutional concerns. The bill would require plaintiffs
who have successfully proven that the government has violated their
constitutional rights to pay their legal fees -- often totaling tens, if not
hundreds, of thousands of dollars.
Few citizens can afford to do so, but more importantly, citizens should
not be required to do so where there is a finding that our government has
engaged in unconstitutional behavior.
The elimination of attorneys’ fees for
Establishment Clause cases would deter attorneys from taking cases in which the
government has violated the Constitution; thereby leaving injured parties
without representation and insulating serious constitutional violations from
judicial review. This effectively
leaves religious minorities unable to obtain counsel in pursuit of their First
Amendment rights under the Establishment Clause.
By eliminating attorneys’ fees for prevailing
parties, this problematic legislation makes it much more likely that plaintiffs
will be unable to challenge actions that courts would otherwise find
unconstitutional under the Establishment Clause. Quite intentionally, the bill penalizes
plaintiffs who can prove that the government has engaged in unconstitutional
conduct. Therefore, the legislation
has the predominant purpose of promoting government-sponsored religion, and the
effect of discouraging plaintiffs from bringing meritorious Establishment Clause
cases. Such a bill raises serious
constitutional concerns and must be opposed.
S. 3696 Favors Enforcement of the Free Exercise
Clause Over the Establishment Clause.
Among the greatest religious protections granted
to American citizens are the Establishment Clause and the Free Exercise
Clause.[4] S. 3696 creates an arbitrary
congressional policy in favor of the enforcement of the Free Exercise Clause,
while simultaneously impeding individuals wronged by the government under the
Establishment Clause.
Through the denial of attorney’s fee awards under
S. 3696, plaintiffs will be unable to afford the expense of litigation only when
they are seeking to protect certain constitutional rights but not others. This bad congressional policy serves to
create a dangerous double standard by favoring cases brought under the Free
Exercise Clause, but severely restricting cases under the Establishment clause.
S. 3696 Denies Just
Compensation.
Finally, despite proponents’ assertions to the
contrary, attorney’s fees are not awarded in Establishment Clause cases as a
punitive measure. Rather, as in any
case where the government violates its citizens’ civil or constitutional rights,
the award of attorney’s fees is reasonable compensation for the expenses of
litigation awarded at the discretion of the court. After intensive fact-finding, Congress
determined that these fees “are adequate to attract competent counsel, but . . .
do not produce windfalls to attorneys.”[5] HR. 2679 is contrary to good
public policy -- it reduces enforcement of constitutional rights; it has a
chilling effect on those who have been harmed by the government; and it prevents
attorneys from acting in the public’s good. The award of fees in Establishment
Clause cases is not a means for attorneys to receive unjust windfalls -- it is
designed to assist those whose government has failed them.
Proponents of this bill have been spreading the
urban myth that religious symbols on gravestones at military cemeteries will be
threatened without passage of S. 3696.
The supposedly “threatened” religious markers on
gravestones has become a red-herring – indeed it is an urban myth -- that
has been invoked as a reason for the denial of attorney’s fees in Establishment
Clause cases. It should be noted – in light of the wildly inaccurate statements
that have repeatedly been made – that religious symbols on soldiers’ grave
markers in military cemeteries (including Arlington National Cemetery) are
entirely constitutional.
Religious symbols on personal gravestones are
vastly different from government-sponsored religious symbols or sectarian
religious symbols on government- owned property. Gravestones and the symbols placed upon
them are the choice of individual service members and their families. The ACLU
would in fact vigorously defend the first amendment rights of all veteran
Americans and service members to display the religious symbol of their choosing
on their gravestone.
If the
Constitution is to be meaningful, every American should have equal access to the
federal courts to vindicate his or her fundamental constitutional rights. The ability to recover attorneys’ fees
in successful cases is an essential component of the enforcement of these
rights, as Congress has long recognized.
The bill is a direct attack on the religious freedoms of individuals, as
it effectively shuts the door for redress for all suits involving the
Establishment Clause. We urge
members of Congress to oppose S. 3696.
Sincerely,
Caroline Fredrickson
Director
Terri Ann Schroeder
Senior Lobbyist
Endnotes
[1] The Establishment Clause of
the First Amendment requires the separation of church and state. See U.S. Const. amend. I, cl. 1.
[2] S. Rep. No. 94-1011, at 5 (1976),
reprinted in 1776 U.S.C.C.A.N. 5908, 5913.
[3] Id. at 6.
[4] The Free Exercise clause of
the First Amendment guarantees the right to practice one's religion free of
government interference. See
U.S. Const. amend. I, cl.
2.
[5] S. Rep. No. 94-1011, at 6 (1976),
reprinted in 1776 U.S.C.C.A.N. 5908, 5913.