ACLU Asks Senate to Reject "Public Expression of Religion Act," Says Bill Will Stifle Religious Freedom

August 2, 2006 12:00 am

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WASHINGTON – The American Civil Liberties Union today urged a key Senate panel to reject a bill whose sponsors say it will enhance freedom of religion, but will actually have the opposite effect. S. 3696, the “Public Expression of Religion Act of 2005” (PERA), would bar the recovery of attorneys’ fees to those who win lawsuits asserting their fundamental constitutional and civil rights in cases brought under the Establishment Clause of the First Amendment.

“This bill would keep Americans from standing up for their right to keep government out of religion,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Religious freedom cannot be protected if Congress prevents Americans from taking legal action when their freedom has been violated. We urge the subcommittee to respect the First Amendment and reject this harmful legislation.”

The Subcommittee on the Constitution of the Senate Judiciary Committee met today to consider the legislation, and heard testimony on the bill from the American Legion, American Jewish Congress and the American Center for Law and Justice, among others.

The ACLU said the ability to recover attorneys’ fees in civil rights and constitutional cases, including Establishment Clause cases, is necessary to help protect the religious freedom of all Americans and keep government out of religion. People who successfully prove the government has violated their constitutional rights would, under the bill, be required to pay their own 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 pay when the court finds that they are in the right.

The elimination of attorneys’ fees would also deter attorneys from taking cases in which the government has acted unconstitutionally. In many cases, religious minorities would be unable to obtain legal representation to defend themselves when the government violates their religious freedom. The bill would apply even to cases involving illegal religious coercion of public school children or blatant discrimination against particular religions.

The ACLU noted that proponents of the bill have been spreading myths that religious symbols on gravestones at military cemeteries will be threatened without passage of PERA. In fact, religious symbols on 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 religious symbols on government-owned property.

“As a practical matter, recovery of attorneys’ fees in establishment clause cases is vital to the protection of religious freedom,” said Terri Ann Schroeder, an ACLU Senior Lobbyist. “Our country must live up to its promise of government-free religion and the enforcement of the Establishment Clause is key in that fight. The Senate must act now to quash this damaging and baseless legislation.”

The ACLU’s letter to the Senate on the Public Expressions of Religion Protection Act of 2006 is online at:


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