Democrats Oppose Bill Denying Attorneys' Fees In Church-State Suits

By JOSH GERSTEIN, Staff Reporter of the Sun
July 27, 2006

Democratic lawmakers in the House are expressing strong opposition to legislation that would deny attorneys' fees to individuals and groups who win cases challenging government actions as a violation of the Constitution's prohibition on the establishment of religion.

"In more than a century, nothing like this has ever been done," Rep. Jerrold Nadler of Manhattan and Queens warned as the House Judiciary Committee debated and considered amendments to the proposed Public Expression of Religion Act. "We would be telling government officials everywhere that Congress thinks it's okay to violate people's religious liberty with impunity, " he said.

The bill's chief sponsor, Rep. John Hostettler, a Republican of Indiana, said it is needed because the American Civil Liberties Union and other groups have used the threat of large legal fee awards to intimidate local governments into dropping religious references in seals, monuments, and elsewhere. "They capitulate to these organizations and their often questionable pronouncement of what is or isn't constitutional," the congressman said. "I believe it's time to bring this extortion to an end."

Mr. Nadler accused Republicans backing the legislation of adopting the anti-judiciary campaign tactics of a segregationist Alabama governor and presidential candidate, George Wallace. "The governor would feel right at home with the sponsors of this bill today," Mr. Nadler said.

Mr. Hostettler insisted that his measure was not aimed at keeping anyone out of court, but encouraging local officials to contest such litigation. "The purpose is not to eliminate establishment clause cases from being adjudicated. In fact, it is just the opposite," he said.

The Indiana congressman said more such cases would allow new Supreme Court justices to clarify puzzling rulings, such as a pair last year upholding a Ten Commandments display in Texas while striking down another in Kentucky. "The jurisprudence in Establishment Clause cases is about as clear as mud," he said.

The Judiciary Committee rejected a series of amendments offered by Democrats, including a proposal by Rep. Sheila Jackson-Lee of Texas to treat attorneys' fees in church-state lawsuits the same way as fees in actions challenging eminent domain seizures. Many Republicans favor awarding fees to successful litigants in such takings suits.

"Freedom of religion is at least as important as private property," Ms. Jackson-Lee argued.

"To say the First Amendment is less valuable than the Fifth Amendment, surely, we would not want to say that," Rep. Zoe Lofgren, a Democrat of California, said. The committee defeated Ms. Jackson-Lee's proposal, 11 to 19.

A veterans' group, the American Legion, has pushed for the legislation out of concern that war memorials and cemeteries could be cleansed of religious symbols. Mr. Nadler called the gravestone issue a "red herring" and submitted a letter in which the ACLU said it would "vigorously defend" the rights of veterans to use any religious symbol they choose on grave markers. The letter did not address the use of Christian crosses in publicly owned group memorials or tombs for unknown soldiers.

The House Republican leadership has made the bill part of an "American Values" agenda aimed at helping the party prevail in this fall's election.

"It's Orwellian that this would fall under the umbrella of ‘American Values,'" Rep. Christopher Van Hollen, a Democrat of Maryland, said. "I can't think of anything that turns history on its head more than what we're working on."

After more than an hour of debate yesterday, the committee adjourned before taking an up-or-down vote on the bill.