We write to urge you to oppose the “Public Expression of Religion Act of 2005” (H.R. 2679).  This bill would bar the award 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.  This bill would limit the longstanding remedies available under 42 U.S.C. 1988 (which provides for attorneys fees and costs in successful cases involving constitutional and civil rights violations) in cases brought under the Establishment Clause.  If this bill were to become law, the only remedy available to plaintiffs bringing Establishment Clause lawsuits would be injunctive relief.  As a result, Congress would, for the first time, single out one area of constitutional protections under the Bill of Rights and prevent its full enforcement.

Religious expression is not threatened by the enforcement of the Establishment Clause, but is protected by it. The Establishment Clause promotes religious freedom for all by protecting against government sponsorship of religion. While the signers of this letter may differ on the exact parameters of the Establishment Clause or even on the outcome of particular cases, we all believe that the Establishment Clause together with the Free Exercise Clause, protects religious freedom.  The purpose of this bill, however, is to make it more difficult for citizens to challenge violations of religious freedom.  But with legal fees often totaling tens — if not hundreds — of thousands of dollars, few citizens can afford to do so.  Most attorneys cannot afford to take cases, even on a pro bono basis, if they are barred from recouping their fees and out-of-pocket costs if they ultimately prevail.  The elimination of attorney’s 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 bill raises serious constitutional questions and would set a dangerous precedent for the vindication of all civil and constitutional rights.  If the right to attorney’s fees is taken away from plaintiffs who prove violations of the Establishment Clause, other fundamental rights are likely to be targeted in the future.  What will happen when rights under the Free Exercise Clause are targeted?  Can we imagine a day when citizens cannot enforce their longstanding free speech rights, or bring a case under the constitution to challenge the government’s use of eminent domain to take their property, simply because they cannot hire an attorney to represent them?  Surely, these and other fundamental rights might not be far behind once Congress opens the door to picking and choosing which constitutional rights it wants to protect and which ones it wants to disfavor.

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 attorney's fees in successful cases is an essential component for the enforcement of these rights, as Congress has long recognized.  We urge you to protect the longstanding ability of Americans to recoup their costs and fees when faced with basic constitutional violations and urge you in the strongest terms to oppose H.R. 2679.

Sincerely,

ADA Watch/National Coalition for Disability Rights
African American Ministers in Action
Alliance for Justice
American-Arab Anti-Discrimination Committee (ADC)
American Civil Liberties Union
American Federation of State, County and Municipal Employees (AFSCME)
American Humanist Association
American Jewish Committee
American Jewish Congress
Americans for Democratic Action
Americans United for Separation of Church and State
Anti-Defamation League
Asian American Justice Center
Asian Law Caucus
Asian Pacific American Legal Center
Baptist Joint Committee
Bazelon Center for Mental Health Law
Equal Jusitice Society
Friends Committee on National Legislation
Gay & Lesbian Advocates & Defenders
Human Rights Campaign
Japanese American Citizens League
Jewish Council For Public Affairs (JCPA)
Lambda Legal Defense and Education Fund
Lawyers' Committee for Civil Rights Under Law
Legal Momentum
Mexican American Legal Defense and Educational Fund (MALDEF)
National Association for the Advancement of Colored People (NAACP)
National Council of Jewish Women
National Employment Lawyers Association
National Gay and Lesbian Task Force
National Law Center on Homelessness & Poverty
National Lawyers Guild
National Partnership for Women & Families
National Senior Citizens Law Center
National Women’s Law Center
National Workrights Institute
People For the American Way
Presbyterian Church (USA), Washington Office
Public Citizen
Public Justice Center
Secular Coalition for America
Sikh American Legal Defense and Education Fund (SALDEF)
The Impact Fund
The Interfaith Alliance
The Puerto Rican Legal Defense and Education Fund
The Urban League
Union for Reform Judaism
Unitarian Universalist Association of Congregations
United Methodist Church, General Board of Church and Society