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"PERA" Bill: Congressional moves to limit
separation of church and state lawsuits
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:
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One 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. |
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The 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.
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.
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
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:
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Isolated 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). |
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Christian 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.) |
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Isolated 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.) |
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Discrimination 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. |
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The 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."
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.
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The 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
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Mathew 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
Negative reactions to the bill:
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The 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
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American 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
References used:
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"Salvaging the Cross, Punishing Litigants," AANews, 2006-JUL-30.
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"House Judiciary Committee to vote on HR 2679..." American
Atheists, 2006-JUL-26, at:
http://www.atheists.org/
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Alison Espach, "Bill Would Drop Lawyer Fee Damages in Religious
Battles," CNS News, 2006-JUN-26, at:
http://www.cnsnews.com/
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The text of HR 2679 is available at:
http://thomas.loc.gov/
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"Legion campaign backs anti-ACLU bill. Opposes lawyers taking
taxpayer funds in church-state cases," WorldNetDaily, 2006-MAR-04, at:
http://www.worldnetdaily.com/
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A copy of the Legion's guide can be obtained by sending an Email to:
pr@legion.org
Copyright © 2006 by Ontario Consultants on
Religious Tolerance
Latest update: 2005-JUL-30
Author: B.A. Robinson
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