H.R. 2679 would amend the Civil Rights Attorney Fees Act to stop
courts from awarding legal fees or damages to any individual or group
which successfully brings suit under the Establishment of Religion
clause of the First Amendment. Supporters of the measure argue that
organizations like the American Civil Liberties Union have reaped
enormous compensation from such actions, costs which are ultimately
paid by taxpayers. They add that the mere threat of lawsuits is having
a "stifling effect" on religious practices, specifically the public
display of the Ten Commandments and other sectarian symbols on public
property.
Attempts to outlaw or discourage litigation over church-state
separation issues are occasionally introduced in Congress and state
legislatures under the pretext of protecting religious freedom and
ending "excessive" attorney fees. A proposal by Rep. James DeMint of
South Carolina disallowed "attorney fees in any action claiming that a
public school or its agent violates the constitutional prohibition
against the establishment of religion by permitting, facilitating, or
accommodating a student's religious expression."
Attorney Eddie Tabash who has been involved with state-church
separation issues said that the "Public Expression of Religion Act"
was "patently unconstitutional," and was simply another strategy to
discourage litigation over government practices that violated the
First Amendment.
Ellen Johnson, president of American Atheists, added that the
Hostettler bill "is not for the benefit of the taxpayer, but for
government and religious leaders who insist on eroding the wall of
separation between church and state."
"They know, as do we, that most attorneys are simply unable to work on
long-term, complex litigation if they don't receive some compensatory
fee," Johnson said. "We're not talking about donating a few free hours
'to the cause.' These cases require an enormous amount of time and
effort."
Johnson said that governments are often quite willing to squander
taxpayer funds in order to defend their unconstitutional practices.
"Whether it is school prayer or defending a religious monument in the
public square, state and local governments are frequently very
short-sighted and belligerent when caught doing something that
violates the First Amendment," Johnson said.
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