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Veterans’ Memorials, Boy Scouts, Public Seals, And Other Public Expressions Of Religion Protection Act Of 2006

Rep. Lamar Smith

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Mr. Speaker, pursuant to House Resolution 1038, I call up the bill (H.R. 2679) to amend the Revised Statutes of the United States to eliminate the chilling effect on the constitutionally protected expression of religion by State and local officials that results from the threat that potential litigants may seek damages and attorney's fees, and ask for its immediate consideration.

The Clerk read the title of the bill.

Pursuant to House Resolution 1038, the amendment in the nature of a substitute printed in the bill is adopted and the bill, as amended, is considered read.

The text of the bill, as amended, is as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

This Act may be cited as the ``Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2006''.

(a) Civil Action for Deprivation of Rights.--Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended-- (1) by inserting ``(a)'' before the first sentence; and (2) by adding at the end the following: ``(b) The remedies with respect to a claim under this section are limited to injunctive and declaratory relief where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion, including, but not limited to, a violation resulting from-- ``(1) a veterans' memorial's containing religious words or imagery; ``(2) a public building's containing religious words or imagery; ``(3) the presence of religious words or imagery in the official seals of the several States and the political subdivisions thereof; or ``(4) the chartering of Boy Scout units by components of States and political subdivisions, and the Boy Scouts' using public buildings of States and political subdivisions.''. (b) Attorney's 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.''.

(a) In General.--Notwithstanding any other provision of law, a court shall not award reasonable fees and expenses of attorneys to the prevailing party on a claim of injury consisting of the violation of a prohibition in the Constitution against the establishment of religion brought against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction over such claim, and the remedies with respect to such a claim shall be limited to injunctive and declaratory relief. (b) Definition.--As used in this section, the term ``a claim of injury consisting of the violation of a prohibition in the Constitution against the establishment of religion'' includes, but is not limited to, a claim of injury resulting from-- (1) a veterans' memorial's containing religious words or imagery; (2) a Federal building's containing religious words or imagery; (3) the presence of religious words or imagery in the official seal of the United States and in its currency and official Pledge; or (4) the chartering of Boy Scout units by components of the Armed Forces of the United States and by other public entities, and the Boy Scouts' using Department of Defense and other public installations.

This Act and the amendments made by this Act take effect on the date of the enactment of this Act and apply to any case that-- (1) is pending on such date of enactment; or (2) is commenced on or after such date of enactment.

The gentleman from Texas (Mr. Smith) and the gentleman from New York (Mr. Nadler) each will control 30 minutes.

The Chair recognizes the gentleman from Texas.

Rep. Lamar Smith

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Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous materials on H.R. 2679, currently under consideration.

Is there objection to the request of the gentleman from Texas?

There was no objection.

Rep. Lamar Smith

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Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise today in support of H.R. 2679, the Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2006, which was introduced by our colleague from Indiana (Mr. Hostettler); and I would like to thank him for his leadership on this issue.

Mr. Speaker, this legislation was reported out of the House Judiciary Committee on November 7 by voice vote. Let me describe the unfair situation that this legislation addresses.

Today, under Federal law, attorneys' fees can be demanded in lawsuits against States or localities brought in under the Constitution's Establishment Clause.

These lawsuits could mandate, for example, that veterans' memorials must be torn down because they happen to have religious symbols on them; that the Ten Commandments must be removed from public buildings; and that the Boy Scouts cannot use public property.

The case law under the Establishment clause is so confused that States and localities know defending themselves in such lawsuits is simply unpredictable.

In 2005, for example, the Supreme Court issued two rulings on the same day that contained opposite holdings in cases involving the public display of the Ten Commandments. In one case, the court found a framed copy of the Ten Commandments in a courthouse hallway to be an unconstitutional establishment of religion, but in the other case the court upheld a Ten Commandments monument on the grounds of the Texas State Capitol. Not only were these two rulings different, but different constitutional tests were used in each case.

The threat to States and towns having to pay attorneys' fees in such cases, should they happen to lose at any level, often leads those States and localities to give up whatever rights they might have under the Constitution, even before such cases go to trial.

This bill will prevent the legal extortion that currently makes State and local governments, and the Federal Government, accede to demands for the removal of religious imagery when such removal is not even constitutionally compelled by the Constitution.

The Supreme Court has stated that ``the State may not establish a religion of secularism in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe.''

Contrary to that principle, current litigation rules are hostile to religion because they allow some groups to coerce States and localities into removing any reference to religion in public places.

This unfair result is made possible because 42 United States Code, section 1983, and 42 United States Code, section 1988, allow advocacy organizations to put the following choice to localities: either do what we want and remove religious words and imagery from the public square, or risk a single adverse judgment by a single judge that requires you to pay tens or hundreds of thousands of dollars in legal fees in a case you cannot afford to litigate.

Consequently, local governments are being forced to accede to the demands of those seeking to remove religious words or tear down symbols, and ban religious people from using the public square, even when allowing those uses might, in fact, be constitutional.

H.R. 2679 amends 42 U.S.C. so that attorneys' fees could not be awarded to prevailing parties in Establishment Clause cases. It amends 42 U.S.C. to make clear that while Establishment Clause cases can continue to be brought against State and local governments, they can be brought only for injunctive or declaratory relief.

This means that a court can still order that a State official or local government stop doing whatever was an alleged violation of the Establishment Clause.

One example of the unfairness this legislation would prevent is a recent case in which the County of Los Angeles was forced to remove a tiny cross from its official county seal that symbolized the founding of that city by missionaries. This tiny cross was on the seal for 47 years. This is costing the county $1 million, as it entailed changing the seal on some 90,000 uniforms, 6,000 buildings, and 12,000 county vehicles.

In Redlands, California, the city council reluctantly gave in to demands and agreed to change their official seal. But Redlands did not have the municipal funds to replace the seal. As reported by the Sacramento Bee, ``rather than face the likelihood of costly litigation,'' Redlands residents now ``see blue tape covering the cross on city trucks, while some firefighters have taken electric drills to `obliterate it' from their badges.''

Mr. Speaker, this is just the kind of injustice this bill seeks to correct.

Finally, Mr. Speaker, H.R. 2679 is clearly constitutional. It has a secular legislative purpose, namely that of preventing the use of the legal system in a manner that extorts money from State and local governments, and the Federal Government, and inhibits their constitutional actions. In doing so, this bill restores the original purpose of 42 U.S.C., which was to protect individual rights, not Establishment Clause claims.

H.R. 2679 also does not have the primary effect of either promoting or inhibiting religion. Rather, it simply removes the burdensome effects of the current legal rules.

So, again, Mr. Speaker, this bill is constitutional and does not prevent lawsuits from being filed.

I urge my colleagues to join me in supporting this legislation and protect the religious rights of all citizens.

Mr. Speaker, I reserve the balance of my time.

Rep. Jerrold Nadler

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Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the gentleman from Texas has a complaint, but his complaint is not against the American Civil Liberties Union, nor is it against section 1983 of the Code. His complaint is against the first amendment of the United States Constitution.

The authors of this bill do not like the protection the courts have given to plaintiffs who allege that their constitutional rights against the establishment of religion in the first amendment have been violated. So he says let us be punitive for winning.

The law says that anyone who brings a lawsuit against the government, Federal, State or local government, and alleges that that government, under color of law, is violating their constitutional rights, if that plaintiff wins, if the court says, and it is not just one judge because it is appealable up to the Supreme Court, but if the court says, yes, Mr. Plaintiff, that government official, mayor so and so, police commissioner so and so, or whatever violated your constitutional rights, you can get damages if you have, in fact, been damaged, monetary damages as you can in any civil lawsuit. You can get an injunction, stop, do not keep doing it, do not keep violating constitutional rights. And you can apply for attorneys' fees.

That is a very important provision. Because these lawsuits can be expensive, and if you cannot get attorneys' fees, it is very difficult to sue, even if you have a very well-established violation of your constitutional rights, and these attorneys' fees are only if you win the lawsuit.

So what does his bill come along and say? Only for establishment cases. We do not like establishment cases. We do not like the Establishment Clause of the Constitution. Only for Establishment Clause violations, you cannot get damages if you prove the government has violated your rights. Only for Establishment Clause cases, you cannot get attorneys' fees if you prove the government has violated your rights.

For any other deprivation of rights under law, violation of the free exercise clause of religion, violation of freedom of speech, freedom of press, whatever, you can get damages; you can get attorneys' fees.

This puts at a disadvantage in enforcing the law one class of people, religious minorities, basically, people who will sue the government for violating their rights under the Establishment Clause.

In more than a century, nothing like this has ever been done. We have always expanded rights under section 1983, our Nation's oldest and most durable civil rights laws. We have never curtailed them.

Just to be sure, I checked with the Congressional Research Service; and I place their memorandum to that effect in the Record at this point.

The memorandum is in response to your request to examine the scope of H.R. 2679, the Public Expression of Religion Act of 2005, which would limit the relief available and the payment of attorney's fees for cases brought under 42 U.S.C. Sec. 1983 when the underlying case involves the Establishment Clause of the First Amendment of the Constitution. Specifically, you requested an analysis of whether Congress had previously limited the types of damages available under 1983 as regards particular constitutional provisions. Second, you requested an analysis as to whether the bill would be limited to the public expression of religious faith in a governmental context, or whether this bill would also affect other Establishment Clause issues. 42 U.S.C. Sec. 1983 addresses a broad array of rights and privileges protected by the United States Constitution. It provides that: ``Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.'' The proposed Public Expression of Religion Act of 2005 would appear to limit certain litigants from receiving either damages or attorneys fees. Specifically, the proposed Act provides that ``[t]he remedies with respect to a claim under [42 U.S.C. Sec. 1983] where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion shall be limited to injunctive relief.'' The bill also amends 42 U.S.C. 1988(b) to provide that no attorney's fees shall be awarded with respect to a claim under 42 U.S.C. Sec. 1983 regarding the Establishment Clause. 42 U.S.C. Sec. 1983 was first passed in 1871. Although it has been recodified and relatively recently amended, it has not been substantially altered since 1871. It does not appear that it has been amended so as to limit the type of damages available to litigants who choose to utilize its provisions regarding particular constitutional issues. Whether such a limitation is constitutional is beyond the scope of this memorandum. The provisions of the proposed Public Expression of Religion Act of 2005, despite its title, would appear to include both the public expression of religion under governmental auspices and a variety of other issues. The types of cases which the bill would cover would appear to include, among other things, cases involving financial assistance to church-related institutions, governmental encouragement of religion in public schools (prayers, bible reading), access of religious groups to public property, tax exemptions of religious property, exemption of religious organizations from generally applicable laws, Sunday closing laws, conscientious objectors, regulation of religious solicitation, religion in governmental observances, and religious displays on government property.

It is especially ironic because my friends who today are supporting this bill only yesterday brought forward a bill that would expand the rights of real estate developers, garbage dumps and adult bookstores under section 1983. So the rights they would give to adult bookstores, we would take away from people whose religious freedom rights are violated. That is, I guess, what has become of the party of Lincoln. That is their civil rights agenda in 2001.

This bill is aimed at people who have proved in court that the government has violated their religious liberty protected by the first amendment. By denying them their normal relief for monetary damages and the bill to petition for attorneys' fees, we will deny them not just their day in court, we would also be telling government officials everywhere that Congress thinks it is okay for them to violate people's religious liberty with impunity.

It is especially galling after everyone here, well, almost everyone, has taken a victory lap for reauthorizing the Voting Rights Act, in which we actually enhanced the attorneys' fees provisions by adding a right to be awarded the cost of expert witnesses in addition to the right to be awarded the cost of lawyers.

As the Judiciary Committee stated in its report on the Voting Rights Act, ``The committee received substantial testimony indicating that much of the burden associated with either proving or defending a section 2 vote dilution claim is established by information that only an expert can prepare. In harmonizing the Voting Rights Act of 1965 with other Federal civil rights laws, the committee also seeks to ensure that those minority voters who have been victimized by continued acts of discrimination are made whole.''

But here we want to say that people with minority religious views who are victimized by government breaking of the Establishment Clause, they shall not be made whole because we do not like them.

I would warn my colleagues that starting down this path will only lead to depriving other unpopular groups of their civil rights remedies. It wasn't so long ago that attacks on unelected judges and ACLU lawyers, as we heard a few moments ago, stirring up trouble, was the common language of the militant segregationists. It is distressing, and sadly ironic, that today that language is being used to gut the Nation's oldest and most durable civil rights law.

It is all chillingly reminiscent of the infamous 1963 inauguration speech of Alabama's Governor George Wallace who said, ``From this day, from this hour, from this minute we give the word of a race of honor that we will tolerate their boot in our face no longer, and let those certain judges put that in their opium pipes of power and smoke it for what it is worth.'' I think the Governor would feel right at home in this House today.

Or consider the notorious ``Southern Manifesto'' signed by Members of both houses in defiance of the Supreme Court's school desegregation decision several decades ago:

``We regard the decisions of the Supreme Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.''

Does any of this sound familiar? I would observe that abuses of judicial power are in the eyes of the beholder.

This is not to suggest that any Members of this House are segregationists. Far from it. I only recall the overheated rhetoric of a half century ago to urge Members to take care with their words. Unpopular minorities and decisions defending the rights of unpopular minorities against the will of the majority have always inflamed passions. People have always questioned our system of checks and balances, and especially the role of the independent judiciary.

Recourse to an independent judiciary is a bulwark of our liberties. We recognize this by allowing people to go to court and sue the government and force the government to respect their rights. We recognize this by allowing people victimized by the government to receive damage awards when the government has done damage. We recognize this by ensuring, just as we have done with the Voting Rights Act, that people who can prove their rights have been violated can get attorneys fees paid so that people with valid claims will be able to afford to go to court to vindicate those claims.

I would remind my friends that this legislation is not limited to religious symbols in public places. This legislation applies to any violation of the establishment clause. This would include forced prayer. If government forcing your child to say a prayer of another faith is not the establishment of religion, then the phrase has no meaning. If government at some locality decided that that locality was Hindu or Muslim or Wicca, or whatever, pick another unpopular or less popular religion, and all children in school must start the day by saying the profession of faith for that religion, you could go to court. It is a violation of the establishment clause. But under this, you couldn't get damages. You couldn't get attorneys fees. You would have to bear the burden of that lawsuit by yourself.

I want to lay to rest right now the red herring, the lie, that was put into this bill when its title was changed from the Public Expression of Religion Act to the Veterans' Memorials, Boy Scouts, Public Seals, and other Public Expressions of Religion Protection Act of 2006. I know that many sincere people have been misled into believing the ACLU, for example, wants to use section 1983 to force the removal of religious symbols from the individual gravestones of thousands of veterans across the Nation and around the world, hence the new title, hence the citation of these specific instances in this bill.

We received testimony from the American Legion to this effect and Members have received a great deal of mail on the subject because people are spreading misinformation. This assertion is a myth. If you are voting for this bill because you are concerned about national cemeteries, don't bother. Neither the ACLU nor anyone else has ever brought such a lawsuit.

As a matter of fact, I have a letter here from the ACLU taking the opposite position: that individual veterans have a first amendment right to have a religious symbol of their or their family's choice on their gravestones.

Dear Representative, On behalf of the American Civil Liberties Union (ACLU), and its hundreds of thousands of members, activists, and fifty-three affiliates nationwide, we urge you to oppose H.R. 2679, the ``Public Expression of Religion Act of 2005.'' This bill would bar damages and awards of attorneys' 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. H.R. 2679 would limit the longstanding remedies available in cases brought under the Establishment Clause under 42 U.S.C. 1988, which provides for attorneys' fees and costs in all successful cases involving constitutional and civil rights violations.

Mr. Speaker, it is an election year, and the months leading up to elections have long been known as the ``silly season.'' We all understand that. But get an earmark for a bridge to nowhere or something, and leave the first amendment and our civil rights out of it.

Mr. Speaker, I reserve the balance of my time.

Rep. Lamar Smith

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Mr. Speaker, I yield 6 minutes to the gentleman from Indiana (Mr. Hostettler), who is the author of this legislation.

(Mr. HOSTETTLER asked and was given permission to revise and extend his remarks.)

Rep. John Nathan Hostettler

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I thank the gentleman from Texas for yielding.

Mr. Speaker, I rise in support of H.R. 2679, the Public Expression of Religion Act. This legislation would allow establishment clause cases to go to court unfettered by fear or coercion on the part of the defendant. And as an aside, I want to thank the gentleman from New York for clarifying a position earlier made by that side of the aisle when it was suggested by the gentleman from Texas and the gentleman from Massachusetts that somehow this bill would actually affect free exercise cases. But as the gentleman from New York pointed out, this bill does not address free exercise cases.

The Public Expression of Religion Act would amend 42 U.S.C. sections 1983 and 1988 to prevent the mere threats of the legal system to intimidate communities, States, and groups like the American Legion into relenting without ever darkening the doorsteps of a Federal courthouse.

I first introduced the Public Expression of Religion Act in the 105th Congress after I realized that the mention of attorneys fees in these kinds of cases were jeopardizing our constituents' constitutional rights. An example of this was in 1993, when the Indiana Civil Liberties Union, which is affiliated with the American Civil Liberties Union, mailed a letter to all the public educators in the State of Indiana. In this letter, the ICLU informs the educators that should they support a prayer at graduation, the ICLU will sue both the school and any individuals who approve the graduation prayer. The letter plainly states the ICLU will win and that whoever is sued will have to pay not only their attorneys fees but the ICLU fees as well.

These threats to teachers, who are highly unlikely to be able to pay their own attorneys fees let alone the exorbitant attorneys fees of the ICLU, make it very likely educators would capitulate to the ICLU before even checking to make sure the ICLU has their facts right.

What makes this even more difficult for States and localities is that the jurisprudence in establishment clause cases is about as clear as mud. Different districts and even the Supreme Court itself flipflops on issues. For instance, last year, the Supreme Court handed down two Ten Commandments case decisions on the same day with a different decision in each.

In the Van Orden case, the court applied the Marsh test of historical perspective to determine the Ten Commandments in a public venue was constitutional in Texas; while the McCreary case used the Lemon test to determine the Ten Commandments in a public venue in Kentucky was unconstitutional. Clear as mud.

Our constituents who are being threatened with those lawsuits know even if they are right they will still have to pay their own attorneys fees to take the gamble the court will muddle through the jurisprudential mess of the establishment clause and come out on their side. If the court chooses to use the Marsh test, they might win. If the court chooses to use the Lemon test, they might lose. It is a toss-up.

Unfortunately, many of our constituents do not have the means by which to set aside a small fortune each year to defend their constitutional rights against intimidating liberal organizations. Nor do they look kindly on the fact that their constitutional rights have become subject to the whims of unelected judges; but, Mr. Speaker, that issue is for another legislative day. Regardless, many do not wish to roll the dice to have their day in court, so they capitulate to these organizations and their often questionable pronouncement of what is or is not constitutional.

A majority of the cases the ACLU and its affiliates represent are facilitated by staff attorneys or through pro bono work, so any attorneys fees awarded to them is icing on the cake. It is a win-win situation for them right now. On the other hand, States and localities have limited resources with which to fight court battles, thus another reason they are capitulating before they even go to court.

This was the case recently with the Los Angeles County seal. The ACLU threatened to sue L.A. County if they did not remove the tiny cross from the county seal. The cross symbolized Los Angeles' birth as a Spanish mission town. The county was forced to choose between paying to change the seal or paying to go to court and possibly pay exorbitant attorneys fees to the ACLU.

In the end, the L.A. county supervisors, in a 3-2 vote, decided to ignore the will of the people of Los Angeles County and pay to change the seal instead of paying to go to court. They had been advised by their attorneys that if they lost in court they would not only have to change the seal but they would additionally have to pay attorneys fees of the ACLU.

Mr. Speaker, I believe it is time to bring this extortion to an end. The Public Expression of Religion Act would make sure these cases are tried on their merits and are not merely used to extort behavior via settlements outside our judicial system.

As the ICLU said at the end of their letter: ``The ICLU does not enjoy litigation. We, and you, have better things to do with our time.'' I for one would like to make sure the ICLU has to think long and hard before litigating, and this would be the case if they knew they would actually have to convince a court of their twisted view of the Constitution. I urge my colleagues to support the legislation.

Rep. Jerrold Nadler

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Mr. Speaker, I now yield 4 minutes to the distinguished gentleman from Maryland (Mr. Van Hollen).

Rep. Chris Van Hollen

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Mr. Speaker, I thank my colleague from New York. This bill, which is presented to the Congress under the banner of a so-called American values agenda, turns American values on their head. It is an example of false advertising at its very worst, and it forgets the lessons of American history.

This great country of ours was founded largely on the principle of religious liberty. Many of our earlier settlers to this country came to our shores to escape religious persecution from their mother countries. They didn't want the Church of England or any other government telling them how they should worship God, and they sought to escape a state-imposed religion, to escape the establishment of a state-sponsored religion. They wanted to practice religion according to the dictates of their own conscience, not the dictates of the state. And that is why the first amendment to the United States Constitution gives each individual the right of religious liberty and why it bars the state from imposing and establishing a state religion.

If this Congress and this government now seeks to impose certain religious faiths upon an individual, that individual can invoke the protections of the United States Constitution. Now, I would think all of us, all of us in this body, would agree that an individual should not have to pay to enjoy the protections of the United States Constitution. Those rights are given to each of us as American citizens under the Constitution, and we shouldn't have to pay when the state, whether it is a local government, a State government, or the Federal Government, violates those rights under the establishment clause or anything else. Yet that is exactly what this bill does.

Under current law, if the court finds a statute is violating your constitutional rights under the establishment clause, the State has to pay the cost that you incurred in protecting your rights against the State. If your government deprives you of your constitutionally guaranteed rights and liberties, the government should pay, not you, the individual citizen. This is a question of the force and muscle of the government and the States against an individual in trying to deprive an individual of his or her constitutionally protected right.

I would ask, since when is it an American value that you have to pay to enjoy the protections of our constitution? Since when is an American value that the government can trample on your religious liberty, deprive you of your rights, and then, when a court of law, whether the Supreme Court, a Federal Court, or any other court, has found indeed that the government did deprive you of your constitutional rights and you were right as an individual and the government was wrong, that you have to pay and not the government?

That is simply a way, when you think about it, that the government can discourage individual citizens from enforcing their constitutional rights. They have to take on the government. They have to take on people with lots of resources. Yet, at the end of the day, even when they win, and the court agrees that their constitutional rights have been violated, it is the citizen that has to pay to enjoy those protections, not the government.

This debate is about American values, and if you want to protect those American values and you want to protect the Constitution of the United States, you should vote ``no'' on this bill.

Rep. Lamar Smith

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Mr. Speaker, I yield 2 minutes to the gentlewoman from Florida (Ms. Ginny Brown-Waite).

Mr. Speaker, I thank the gentleman for yielding. Mr. Speaker, I rise today in very strong support of H.R. 2679, the Public Expression of Religion Protection Act. With this bill, we will close a loophole that has allowed liberal groups like the ACLU to prey on taxpayers for far too long.

Originally, Congress sought to protect underprivileged civil rights applicants by allowing them to collect attorneys fees if they won their suit.

Today, groups like ACLU scour the country looking to sue cities and States with any kind of religious display, regardless of how popular those religious displays are in those communities. If they sue and win, States and localities not only have to remove or remodel the historic items, but they also must pay the group's attorneys fees. In this backdoor way, the ACLU can collect taxpayer money to fuel even more lawsuits.

Tragically, citizens' precious symbols and monuments are being eroded with their own tax dollars. State seals in existence for hundreds of years have had to be redrawn. Many cities will not even fight in court for fear of paying costly attorneys fees, and some of them just capitulate at the first sign of a lawsuit.

We should not allow these liberal groups to fuel their agendas by exploiting hardworking Americans. The bill before us today removes that attorney fee provision from cases involving establishment of religion. This bill will stop the current taxpayer extortion once and for all.

I urge my colleagues to support this bill.

Rep. Jerrold Nadler

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Mr. Speaker, I yield 4 minutes to the distinguished gentleman from Virginia (Mr. Scott).

Rep. Robert C. Scott

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Mr. Speaker, I thank the gentleman for yielding.

Mr. Speaker, any time you name a bill using the words ``veterans memorials'' and ``religious protection,'' you can assume that we are just about to cut veterans health care.

Now, if we are going to deal with veterans issues, I would hope that we would fully fund the veterans health care VA expenditures rather than cut them. We ought to do more for veterans pensions, we ought to do more for veterans disability, rather than naming a bill which undermines the freedoms they actually fought for.

Thirty years ago, Mr. Speaker, Congress recognized the importance of passing a law to ensure that those who suffer violations of their constitutional rights or unconstitutional discrimination will be able to obtain legal representation to vindicate their civil rights; but only in cases where they actually win the case will they be able to get help with their attorneys fees.

This bill would rescind the ability of victims whose rights under part of the first amendment have been found to have been violated from receiving reimbursement for attorneys fees and costs. This means that only the most fortunate in our society will be able to enforce their civil rights and seek redress when those rights are violated. It means that the less fortunate can only get those rights if they can raise enough money to enforce them. When the cost of enforcement becomes too great, there will not be any private enforcement and then our constitutional rights will be reduced to hollow pronouncements for the average citizens because only the wealthy will be able to seek enforcement.

But this bill goes actually further, because the bill will specifically deprive victims whose rights have been found to be violated by a court and those whose rights continue to be violated after the court has ordered, from being able to seek remedies other than those provided in the bill, namely injunctive or declaratory relief.

Now, if a school system were to decide to ignore the Constitution and require school children to recite a state-sponsored Protestant prayer in some areas, or a Mormon prayer in others, what would happen? Or if a State or locality were to just declare itself to have a particular established religion, what would happen under the bill? Nothing. Nothing would happen, until such time as you have a wealthy individual willing to fund a lawsuit to try to vindicate the obvious violation of their constitutional rights.

In all other classrooms and all other localities where you don't have a wealthy individual to fund the lawsuit, nothing will happen, because the perpetrators of the violation will know that there is no sanction. Nothing can happen. The only thing that can happen is you just sit around and wait for a court to declare that you are in violation. Nothing else can happen. And even after that finding occurs, nothing will happen until the court actually starts enforcing the court order, and you will need additional attorneys fees to go in and get that order.

This just invites violations of the law because we know there is no sanction for violating the first amendment. We know that the establishment clause, part of the first amendment of the Bill of Rights, will be the only part of the Constitution without any remedy to effectively enforce the provisions of that Constitution. That is why virtually every civil rights group, religious organization and legal organization opposes the bill; and, Mr. Speaker, I hope we oppose the bill too.

Rep. Lamar Smith

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Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, some opponents of this legislation are arguing that attorneys fees are needed and that establishment clause lawsuits will be deterred unless the people bringing these lawsuits have their attorneys fees paid. This is simply not true.

First, we are aware of no organization that has said they will not bring a good cause case under the establishment clause if they can't be awarded attorneys fees. In fact, the ACLU has said just the opposite. Peter Eliasberg, a staff attorney for the ACLU of Southern California, has said recently, ``Money has never been a deciding factor when we take cases.'' When asked specifically what the ACLU would do if attorneys fees in establishment clause cases were prohibited, he said, ``It wouldn't stop us from bringing lawsuits.''

Second, this section of the U.S. Code H.R. 2676 amends was never intended to apply to establishment clause cases. 42 U.S.C. 1988, which allows attorneys fees in cases brought under 42 U.S.C. 1983, was intended only to allow the award of attorneys fees under civil rights laws enacted by Congress after 1866.

The history of 42 U.S.C. is as follows: in Alaska Pipeline Service Company v. Wilderness Society, the Supreme Court held that Federal courts do not have inherent power to award prevailing party attorneys fees to remedy government violations of the law. The Court observed that the American rule, that is, the rule that each party bears its own attorneys fees ``is deeply rooted in our history and in congressional policy.''

Mr. Speaker, I want to make one more point, and that is to emphasize that under H.R. 2679, establishment clause cases can in fact continue to be brought against State and local governments for injunctive or declaratory relief, which means that the court can still order that a State official or local government stop doing whatever it was in alleged violation of the establishment clause

Rep. Jerrold Nadler

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Mr. Speaker, I reserve my time.

Rep. Lamar Smith

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Mr. Speaker, I yield 5 minutes to the gentleman from Indiana (Mr. Hostettler).

Rep. John Nathan Hostettler

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Mr. Speaker, in response to a discussion earlier about the notion of ``false advertising'' in relationship to this piece of legislation, I have developed some fairly thick skin over the last several years in this job, but I think that I should draw the line today with regard to suggesting that people such as the American Legion would engage in false advertising in their support of the Public Expression of Religion Act.

In a booklet published by the American Legion entitled ``In the Footsteps of the Founders,'' the American Legion set out a course of action, a battle plan, if you will, in their desire to ``mobilize America to urge passage of the Public Expression of Religion Act, or

They close in their mobilization in this regard: ``There simply is no reasonable basis to support the profiteering and attorney fees awards ordered by judges in these cases,'' meaning establishment clause cases. ``The very threat of such fees has made elected bodies, large and small, surrender to the ACLU's demands to secularly cleanse the public square.''

They go further to say this: ``The American Legion does not intend to surrender to the ACLU or anyone else in defense of veterans memorials, the Boy Scouts or the public display of American religious history and heritage. We are involved because we are veterans who served the Nation when our country called. But most of all, we are involved because we are Americans. `For God and country' is our credo, and both are imperiled today. In order to win the battle, to safeguard and transmit to posterity the America the Founding Fathers created, it is clear what we must do. We must walk in the footsteps of the Founders. Being involved in making the Public Expression of Religion Act the law of the land is one small but extremely important step that must be taken. This is a crusade we can, we should, we must win, if we are to walk in the footsteps of the Founders. We Americans of this generation can do no less.''

So, Mr. Speaker, those are the words of the American Legion themselves that say that today is the day that the House of Representatives must take a stand and must stand in the footsteps of our Founders.

We have heard a lot of discussion today about what this bill would do, that it would essentially eliminate the bringing of establishment clause cases to court. And as the gentleman from Texas has pointed out, even the liberal organizations that some would suggest their funds would be cut off have said this will do nothing to stop them in their pursuit to remove every vestige of religious heritage from our public places. So we should not take that argument at its face, because it is simply not true.

In fact, this bill allows the continuing allowance of injunctive relief, meaning if an individual wants a particular activity to stop or a particular display to be removed, the court can in fact still say that that display must be removed or that that activity must cease. Nothing in this bill eliminates injunctive relief or the ability to enjoin a State or local government to stop violating the establishment clause.

Mr. Speaker, in conclusion, there has likewise been a lot of discussion of the fact that in 1976 the Attorneys Fees Award Act began this march in civil rights with regard to establishment clause cases. That is simply not the fact. In 1962, in Engel v. Vitale, the Supreme Court held, 14 years before the Civil Rights Attorneys Award Act was put in place, the Supreme Court held that prayer in public schools in Engel v. Vitale was unconstitutional. They held a year later in Abington v. Shemp that Bible reading in public schools was unconstitutional as well.

To suggest that the removal of attorneys fees would stop the groups from bringing these cases to court is simply not borne out by history nor by their own words, and so I ask my colleagues to support the Public Expression of Religion Act.

Rep. Lamar Smith

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Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr. Bilbray).

Rep. Brian P. Bilbray

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Mr. Speaker, I stand today in support of H.R. 2679. Let me just say as a Representative from San Diego County, we have had a situation that I think both sides of the aisle would say was absolutely absurd, where there was a movement to destroy a war memorial on Mount Soledad, and the justification was because that war memorial happened to have been a religious symbol, a cross. One group, or a small plaintiff, not only was pushing for the destruction of the war memorial, but actually got the fees paid to gain profiteering from the destruction of this war memorial.

Now, you may say there must be a logical reason, it must be reasonable, there must have been some good reason to tear down this war memorial. Mr. Speaker, let me remind you that this body had a chance to vote on exactly the same issue, and this body voted 349 to preserve the war memorial, with 74 voting to destroy it. I think that it is quite clear that this body has said that the preservation of certain religious artifacts did not justify the profiteering by those who would want to destroy it.

I strongly ask us to look at this bill and just think about this: this profiteering not only affects the agencies or the people that have to pay out, like the city of San Diego, but that money could have gone to services throughout the community which proportionately help those needy, those poor and those who need it the most.

So, so much of this profiteering is being made at the expense of those who people on both sides of the aisle say do not get enough resources. I just think it is time that we tell the trial lawyers and we tell those who are profiteering from trying to destroy our religious heritage that we are no longer going to allow them to walk away from the courts with bags of the people's money and individuals' resources that can be used in better locations.

Rep. Jerrold Nadler

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I now recognize the gentleman from Virginia for a unanimous consent request.

Rep. Robert C. Scott

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Mr. Speaker, I ask unanimous consent that letters from over a dozen organizations in opposition to this bill be entered into the Record to the extent that some of them have not been entered in the Record so far.

Is there objection to the request of the gentleman from Virginia?

There was no objection. African American Ministers

Dear Representative: As pastors and leaders of predominately African American congregations across the country, we are writing urging you to oppose passage of H.R. 2679, the ``Public Expression of Religion Act of 2005.'' Where would our nation be on the long march to ending segregation, providing equal education to all, ensuring free speech, enfranchising minorities and women to vote, and a host of other civil rights and civil liberties issues had damages and attorney's fees remedies been denied on those journeys? This legislation represents an attack on the most fundamental enforcement tools available to people whose religious liberty rights have been violated by singling out those who seek to enforce their constitutional rights under the Establishment Clause of the First Amendment. This is a blatant attack on the religious freedoms of all people of faith. 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. Congress established enforcement remedies under Sec. 1983 more than 100 years ago and, according to the Congressional Research Service, Congress has never limited or eliminated these remedies, let alone deny them to people seeking judicial enforcement of particular constitutional rights. As pastors, we strongly believe that H.R. 2679 is a deliberate attempt to roll back the clock on the protection of our religious freedoms and the protections we have against those who would attempt to force upon us their own religious ideology. Should Congress adopt this legislation, the precedent would be set for future denials of these remedies for other constitutionally protected civil rights and liberties. While some claim this is merely technical, damages and the awarding of attorney's fees are critical ingredients necessary to ensure the proper representation in court and redress for constitutional violations. More importantly, they are critical for the protection of our civil rights and civil liberties serving as a disincentive for engaging in such violations. Justice can be denied in many ways, and denying damages and attorney's fees to those seeking to enforce their constitutional rights will be tantamount to barring the courthouse door and any possibility of vindication of the rights we hold sacred. We urge you to oppose H.R. 2679. Sincerely, Rev. Timothy McDonald, Chair. Rev. Robert Shine, Co-Chair.

Rep. Lamar Smith

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Mr. Speaker, I would like to yield 4 minutes to the gentleman from Indiana (Mr. Pence).

(Mr. PENCE asked and was given permission to revise and extend his remarks.)

Rep. Mike Pence

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Mr. Speaker, I am grateful for the gentleman's leadership on this issue. I rise in strong support of the Public Expression of Religion Act; and I do so with particular gratitude to my Hoosier colleague, John Hostettler, who, during the course of his career in the United States House of Representatives, has stood for the freedom of religion as perhaps no other American.

And I say that with understandable parochial Hoosier pride, but I also say it as an objective observation, that the gentleman from Indiana has stood for a constitutional accommodationist view of respect for the expression of religion and its importance in American heritage. Mr. Speaker, I commend him for his outstanding work on this legislation.

In 1976, a statute was passed in this Congress called the Civil Rights Attorney's Fees Awards Act. Very simply and plainly, this statute was intended to protect the constitutional rights of citizens and level the legal playing field.

Under this Act, a citizen who felt that his or her constitutional rights had been violated could sue a government official or entity and receive attorney's fees if they win.

This was important legislation, and it has served a great public good. But it has also served to catalyze a form of litigation since the advent of decisions by the United States Supreme Court in the 1960s and 1970s that moved away from our historical view that the freedom of religion was not the freedom from religion, and it has become a tool, I say very respectfully, to their cause. It has become the tool of elements who would advance a radical secularist view of the public square in America, and who have used the opportunity to access the public Treasury in the form of attorney's fees to not only finance massive litigations against government entities to scrub our public square of any vestige of reference to God or reference to the religious heritage of the American people, but also it has been used to prevent that day in court from happening.

The availability of massive amounts of attorney's fees have caused many municipalities, even some in Indiana, to relent in their fight to preserve the public display of the Ten Commandments or references to God in the public square because of the local government's inability to access Federal funds to pay their attorney's fees.

So in a very real sense the unintended consequence of the 1976 law was to take a playing field that was imbalanced to one side and make it imbalanced to the other. And today, because of Congressman John Hostettler's leadership in the Public Expression of Religion Act, we are leveling the playing field once again. We are saying to every American who believes in their heart that ``In God We Trust'' should not appear in the well of this Congress as it does behind me, that every American who thinks there should be no reference to religion in the public square whatsoever, it says to every American whose view of the Constitution is that the Establishment Clause is somehow an antiseptic to remove any reference to our religious heritage in this country, it says: The courts are open to you, but the Treasury is not.

As we might say in Indiana, where I was born and raised and lived, that, to put it very plainly, I may fight to the death for your right to hold the views that you hold, but that doesn't mean that I have to pay for it.

And because of Congressman Hostettler's leadership on the Public Expression of Religion Act, we say the courthouse doors are open to anyone who would challenge the public expression by local governors or government officials the acknowledgement of the deep and rich heritage over hundreds and hundreds of years of the American people, who we would say, in this instance, in these cases, the public treasury is not open. Raise your money, bring your challenges, and let the court work its will.

Rep. Jerrold Nadler

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Mr. Speaker, I yield 2 minutes to the distinguished gentlewoman from California.

Rep. Maxine Waters

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Mr. Speaker, I oppose this legislation because it prevents people from getting attorney's fees or economic damages even if a court agrees with them that the Federal Government has violated their constitutional right to religious freedom or not to be forced to recognize one religion over another. In other words, Congress is telling the courts that they do not know how to do their jobs.

Article III of the Constitution states that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Why are we trying to do the Court's job by deciding that these Establishment Clause claims deserve only injunctive or declaratory relief?

This bill reaches right into the Civil Rights Act, for the first time in history, I might add, singles out people who have Establishment Clause claims and tells them that they cannot recover any economic damages. How can this be so, Mr. Speaker? How can this be so, when the 11th Circuit in Glassroth v. Moore, a case decided in 2003, stated that: For Establishment Clause claims based on noneconomic harm, the plaintiffs must identify a personal injury suffered by them as a consequence of the alleged constitutional error.

The court found injury in Glassroth because the claimants had altered their conduct and incurred expenses in order to minimize contact with a Ten Commandments monument erected in the rotunda of Alabama's State judicial building.

With this bill, this committee attempts to overturn Federal judicial opinions, and that is simply not our role. Congress established enforcement remedies under section 1983 more than 100 years ago.

Rep. Jerrold Nadler

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Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, we have heard a lot of rhetoric that is really beside the point on this bill. We all agree, I hope, that the United States Constitution governs. We all agree, I hope, that the Bill of Rights confers certain rights on Americans, whether citizens or not. We all agree that freedom of religion, freedom to exercise religion, and freedom from establishment of religion are among those rights. We all agree, I hope, that the courts are there to enforce those rights. And then the disagreement begins.

This bill would seek to put a thumb on the scale and say, and we heard this rhetoric: We don't like the ACLU. We don't like what they are doing, even if the courts say they are right in a given case. Because we don't like what they are doing, because their winning court decisions violates our concept of what the Establishment Clause means, we are going to put a thumb on the scale and say that people who win lawsuits, who establish to the court's satisfaction that the government has violated their rights under the first amendment, the Establishment Clause, they cannot get damages, they cannot get attorneys' fees. We are going to put a poll tax on the Establishment Clause. Only people with a lot of money had better sue to enforce their first amendment rights.

If you don't have a lot of money but the government is violating your rights under the Establishment Clause, you can't sue. Because even if your attorney tells you you have got a 99 percent chance of winning because these people know they are wrong, it may still cost you a couple hundred thousand dollars. And they paint the picture of these poor cities and towns and governments having to kowtow to an organization, but the fact is, who generally has more money for a lawsuit? The City of New York, the City of Galveston, the town of whatever, or an individual?

You are putting a means test on protecting your rights to freedom of religion. I don't think that is what this country ought to be about. Because, after all, someone has got to pay for that lawsuit. Someone has got to pay the attorneys' fees, and that is either going to be the plaintiff who alleges a violation of his rights, or it is going to be the government that allegedly violated his rights.

The law says, current law, that if you prove that the government violated your rights, the government should pay the cost of that lawsuit, not you.

This bill says that, for most things, that is still true; but for the Establishment Clause rights, it no longer true, and you have got to pay for the lawsuit that the government made you bring by willfully, or perhaps not willfully, violating your rights.

They say, well, look at the City of San Diego. It is costing them hundreds of thousands of dollars. Well, if they listened to their attorney who said, gee, what you are doing may very well violate the first amendment or does violate the first amendment, then maybe they wouldn't have had to pay those hundreds of thousands of dollars. With this bill, there will be no financial incentive to obey the Establishment Clause.

Second, this bill does not, as I said before, cover only the cases they are talking about; it covers all establishment cases. And let's think of an establishment case. Let's assume, and we know that throughout the history of this country different ethnic groups, different religious groups have different political weights at different times. Let's assume that in some town the Sunni Muslims became a majority, and let's assume that they decided in that town that everybody, Christians, Jews, Muslims, in school had to recite every day on pain of expulsion from class there is no God but Allah, and Mohammed is his prophet. Pretty clear violation of the Establishment Clause in the first amendment.

Now, somebody who is not a Muslim in that case, someone who is Jewish or Christian or something else, decides to sue and wins the lawsuit; and they say you can't do that. You can't get attorneys' fees. He has got to bear the cost of that. Why? Because of hostility on the part of the sponsors of this bill to the Establishment Clause of the first amendment. Because they think that only the majority religion is ever going to be in the position to dominate a local government or any government.

Maybe so. But the real reason we have the first amendment is that you can never be sure. It may be that in the future some group that isn't the majority now will be the majority in some local area; and if you make it difficult to enforce the Establishment Clause of the first amendment, you or your children could be the ones imposed upon.

Now, we heard about this horrible situation, about the challenge to this or challenge to that. But, as I said before, the real complaint is not with the attorneys' fees, the real complaint is with the first amendment. You think you ought to be able to do whatever it was and what the courts have said, no, you can't. Well, maybe you shouldn't or maybe we should amend the Constitution. Which I wouldn't suggest, but that would be the right way to do it. Or maybe we should get different judges or whatever.

But if the courts say you are violating the first amendment, you shouldn't continue to do it. You should be able to get damages if you continue to do it. And the plaintiff, vindicating his own constitutional rights, should be able to bring a lawsuit without having a lot of money.

Now, we heard also that, well, the various organizations say that even if you pass this bill, they will still sue. But that is not the question. The first amendment does not belong, the Constitution of the United States does not belong to the American Civil Liberties Union or to Americans United for Separation of Church and State or United Americans Against the Separation of Church and State.

It is the individual right that you are violating here. It is an individual's right, or maybe a whole class of individuals, that you are violating when you violate the establishment clause of the first amendment, and any individual should have the right and the ability to go to court and if he wins, to get attorneys fees.

We have made a decision, we have made a decision in this country, and maybe you want to challenge that decision, but this bill doesn't do that. That decision is that when your constitutional rights are violated and you can prove it to the court, that the government violated your constitutional rights, then the government should pay for the cost of your vindicating the Constitution and vindicating your rights against the government that broke the law by violating your rights. That is a general principle.

Maybe you want to say no, we don't care that much about individual rights any more, first amendment, second amendment, whatever. From now on you want to sue the government because they violated your rights, you pay no matter what, even if you win. Okay, that is a different bill. I would oppose it, but that is a different bill. That is not this bill. This bill says we think all rights are important. If you think that the government violated your second amendment right to own a gun and you go to court and you prove it, the government pays for that lawsuit, and properly so.

But if you think the government violated your right to practice your religion by violating the establishment clause, and you prove it, the government doesn't pay. You have to pay for it because your right to own a gun is a heck of a lot more important than your freedom of religion, apparently. That doesn't make sense.

Mr. Speaker, if we believe in the individual rights enshrined in the Bill of Rights, if we believe in the first amendment and the freedom of religion in this country, and if we believe we shouldn't single out freedom of religion and say that freedom is less important, that freedom if you win, and forget the merits of these cases, if you lose, you don't get attorneys fees or damages.

We are talking about where you are right and the government is wrong. The government is violating your rights, and this bill says you shouldn't get damages or attorneys fees anyway because we don't like your point of view. That is wrong. It is demeaning to this Congress, and if we believe in freedom of religion and the Bill of Rights, we will defeat this bill.

Mr. Speaker, I yield back the balance of my time.

Rep. Lamar Smith

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Mr. Speaker, we have just had a speaker arrive on the House floor, and I would like to yield 1\1/2\ minutes to the gentleman from Pennsylvania (Mr. Pitts) if the gentleman from New York doesn't object.

Rep. Joe Pitts

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Mr. Speaker, I want to thank the gentleman from Indiana (Mr. Hostettler) for his efforts to raise awareness of this important issue.

Mr. Speaker, passing this bill would be a win for millions of Americans who cherish religious freedom in America. And it would be a win for those who understand our Constitution guarantees freedom of religion, not freedom from religion.

We all know in 1976 Congress passed a law allowing citizens to sue the government if they feel their constitutional rights have been violated. In recent years, groups like the ACLU have twisted this law to advance their agenda of eliminating any public expression of religion.

By using the threat of a lawsuit combined with uncertain jurisprudence on the issue, these groups have been able to bully local governments into removing any expression of religion whatsoever, and this affects public seals, Boy Scouts, veterans memorials, Ten Commandment displays, among other things.

Slowly but surely, groups like the ACLU are using the practice to remove any public acknowledgment of religion. This bill protects religious freedom by eliminating the unfair advantage groups like the ACLU enjoy. By denying these groups the ability to collect attorneys fees in establishment clause cases, this bill puts America's countless cities, towns and localities on a level-playing field. No longer would the taxpayers in these towns be forced to foot the bill to defend their constitutional right to freedom of religion. The bill addresses a real concern in a meaningful way. I urge all Members to support its passage.

Rep. Lamar Smith

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Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, today under Federal law, attorneys fees can be demanded from the winning side in lawsuits against States or localities, or the Federal Government, brought under the Constitution's establishment clause.

Current litigation rules are hostile to religion because they allow some groups to force States and localities into removing any reference to religion in public places.

H.R. 2679 would prevent the legal extortion that currently forces State and local governments, and the Federal Government, to accede to demands for removal of religious text and imagery when such removal is not compelled by the Constitution.

Current laws allow plaintiffs to put the following choice to localities: either do what we want and remove religious words and imagery from your public square or risk a single adverse judgment from a single judge that requires you to pay tens or hundreds of thousands of dollars in legal fees in a case that you can't afford to litigate through the appeals process.

Mr. Speaker, local governments are being forced to accede to the demands of opponents, even when their actions are in fact constitutional.

The section of the U.S. code H.R. 2679 amends was never intended to apply to establishment clause claims. 42 U.S.C. 1988, which allows attorneys fees, was intended only to allow the award of attorneys fees civil rights laws enacted by Congress after 1866. We need to return to that original purpose and pass this legislation. I urge my colleagues to support it

Rep. Steny H. Hoyer

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Mr. Speaker, this legislation--the so-called Public Expression of Religion Act--not only is brazenly hypocritical, but it also is politically cynical and would set a very dangerous precedent.

Quite simply, this bill would bar the award of attorney fees to the prevailing parties asserting their fundamental constitutional rights in cases brought under the establishment clause of the first amendment.

This is, indeed, a change of heart for a Republican party that has tried in vain for years to impose a ``loser pays'' rule on attorney fees in tort cases.

In fact, with this bill, the House Majority lays bare the outcome determinative agenda that guides the Republican party when it comes to issues that involve our legal system and judiciary.

That is, the majority seeks to enact legal procedural advantages for those with whom it agrees.

Make no mistake, if this bill became law, it would single out one area of Constitutional Protections under the Bill of Rights and prevent its full enforcement.

Without question, that would set a dangerous precedent.

The substance of the Constitution is meaningless unless all Americans have a fair and equal opportunity to go to court when their constitutional rights are curtailed by the state.

By barring the award of attorney fees to prevailing parties asserting their constitutional rights in cases brought under the Establishment Clause, H.R. 2679 will discourage Americans of limited means from defending their rights.

Taken to its logical to conclusion, this bill would make the U.S. Constitution the tool for those who can afford to vindicate their rights in a court of law.

As such, it is a dangerous bill that runs counter to more than 200 years of American jurisprudence.

I urge my colleagues: vote against this bill.

Rep. John Conyers Jr.

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Mr. Speaker, the very first amendment to the constitution provides that ``Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'' This protects a right--freedom of religion--that is fundamental in any democratic and free society. Since the bill of rights was approved in 1791, several additional measures have been taken to safeguard this right. For example, the Civil Rights Act of 1871, now known as Section 1983, and the Civil Rights Attorney's Fee Award Act of 1976, now know as Section 1988, were enacted to provide all citizens with the means to protect all constitutional rights. Today, the Majority would have this Congress take a step back from these critical protections.

I oppose the legislation before us because it is unprecedented, it treats religious minorities unfairly, and it will interfere with meritorious claims.

First, H.R. 2679 is unprecedented. For the first time in our history, Congress will be singling out one area of constitutional protections under the Bill of Rights and prevent its full enforcement. The Congressional Research Service reports, ``[Section 1983] has not been substantially altered since 1871.'' Under this legislation citizens challenging Establishment Clause violations will no longer have the ability to recover attorneys' fees. Remedies will be limited to injunctive and declaratory relief.

On the heels of the Voting Rights Act reauthorization, I am troubled that we would take up legislation that would limit a person's ability to enforce his or her constitutional rights. The VRA reauthorization expanded a plaintiff's ability to obtain expert witness fees. This bill eliminates attorneys' fees and relegates those who seek to enforce their constitutional rights against state sanctioned religion to second class status.

Second, H.R. 2679 treats religious minorities unfairly.

Despite its name, this bill does not encourage the expression of religion. Rather, this bill leaves religious minorities without protection by promoting government sanctioned religion.

This Nation was founded on the principle of religious freedom, and the Establishment Clause forbids the government from forcing one religious viewpoint on all Americans. In 2005 in McCreary County, Kentucky v. ACLU, Sandra Day O'Connor explained, ``Voluntary religious belief and expression may be threatened when government takes the mantle of religion upon itself.'' H.R. 2679 cripples the First Amendment and religious minorities will pay the price.

Third, H.R. 2679 will deter meritorious claims. It is a fact of life in our society that bringing complex civil actions against the government is expensive. Since this bill would deny attorney's fees to a prevailing plaintiff, numerous suits challenging Establishment Clause violations will not be brought.

The point of Section 1988 is to provide victims with limited means an opportunity to have their day in court.

Unfortunately, H.R. 2679 will prevent a victim from protecting his or her constitutional rights against a defendant with large resources, such as the government.

It is interesting that so many religious groups strongly oppose this measure. These groups include the Baptist Joint Committee, American Jewish Congress, and the Unitarian Universalist Association of Congregations. The Leadership Conference on Civil Rights, Lawyers' Committee, Alliance for Justice, Human Rights Campaign, and People for the American Way are also among the numerous organizations that also oppose this bill.

Please vote ``no'' on this legislation, which will cause great harm to the concept of freedom of religion in this country.

Rep. Sheila Jackson-Lee

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Mr. Speaker, I rise in opposition to H.R. 2679, the so-called ``Public Expression of Religion Act of 2005.'' The central purpose of this legislation is to bar damages and awards of attorneys' 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. H.R. 2679 would limit the longstanding remedies available in cases brought under the Establishment Clause under 42 U.S.C. 1988, which provides for attorneys' fees and costs in all successful cases involving constitutional and civil rights violations.

I oppose H.R. 2679 for three very important reasons. First, the bill limits access to justice and makes it virtually impossible for an injured party to obtain remedial relief from a serious deprivation of a fundamental, constitutionally protected right. Second, H.R. 2679 would jettison a legal and constitutional principle that has stood the nation in good stead for over two centuries: that an injured party is entitled to just compensation for the injury he or she has sustained caused by the intentional wrongdoing or negligent conduct of others. Third, H.R. 2679 discriminates against the Establishment Clause of the First Amendment in favor of the Free Exercise Clause. I will address each of the fatal deficiencies in turn.

1. H.R. 2679 limits access to justice for those seeking to vindicate Constitutional Rights.

If H.R. 2679 were to become law, Congress would, for the first time, single out one area protected by the Bill of Rights and prevent its full enforcement. The only remedy available to plaintiffs bringing Establishment Clause lawsuits would be injunctive relief. This prohibition would apply even to cases involving illegal religious coercion of public school students or blatant discrimination against particular religions.

Awards of attorneys' fees in civil rights and constitutional cases, including Establishment Clause cases, are necessary not merely to help prevailing parties vindicate their civil rights but also to provide an incentive for vigorous enforcement of these protections, which the Framers put in place to protect the Nation. Since widespread observance of the rights and protections set forth in the First Amendment is above a collective good, it is vitally important that there be an incentive for individuals to act as ``private Attorneys General'' to vindicate their individual rights and the public interest in a robust First Amendment. Our sister committee in the other body has found these fees ``an integral part of the remedies necessary to obtain . . . compliance'' and emphasized that ``[i]f the cost of private enforcement actions becomes too great, there will be no private enforcement.''

H.R. 2679 would turn the Establishment Clause into a hollow pronouncement. Indeed, the very purpose of this bill is to make it more difficult for citizens to challenge violations of the Establishment Clause. It would require plaintiffs who have successfully proven that the government has violated their constitutional rights to pay their 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 do so where there is a finding that our government has engaged in unconstitutional behavior.

If our civil rights laws are not to become empty words written on parchment which the average citizen cannot enforce, we must maintain the traditionally effective remedy of fee shifting in these cases.''

In sum, I oppose H.R. 2679 because I believe the elimination of attorneys' 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 without a remedy. It will insulate serious constitutional violations from judicial review. This effectively leaves religious minorities subject to the unbridled whims of the majority, which is precisely the evil the First Amendment, including its Establishment Clause, was intended to combat.

2. H.R. 2679 Denies Just Compensation.

I am a former judge and, like many members of this Committee, an attorney. We know that attorneys' fees are not awarded in Establishment Clause cases as a punitive measure. Rather, as in any case where the Government violates its citizens' civil or constitutional rights, the award of attorneys' fees is reasonable compensation for the expenses of litigation awarded at the discretion of the court. In fact, after intensive fact-finding, Congress determined that the amount of attorneys fees awarded after review by the court ``are adequate to attract competent counsel, but . . . do not produce windfalls to attorneys.''

Thus, H.R. 2679 is contrary to good public policy because it reduces enforcement of constitutional rights; it has a chilling effect on those who have been harmed by the Government; it makes it exceedingly difficult for plaintiffs to avail themselves of the services of attorneys experienced and skilled in constitutional litigation, and it prevents attorneys from acting in the public's good.

3. H.R. 2679 Favors Enforcement of the Free Exercise Clause Over the Establishment Clause.

Finally, one cannot help but notice that H.R. 2679 creates an arbitrary congressional policy in favor of the enforcement of the Free Exercise Clause, while simultaneously impeding individuals injured by governmental conduct under the Establishment Clause.

Among the greatest religious protections granted to American citizens are the Establishment Clause and the Free Exercise Clause. The right to practice religion, or no religion at all, is among the most fundamental of the freedoms guaranteed by the Bill of Rights. Religious liberty can only truly flourish when a government protects the Free Exercise of religion while prohibiting government-sponsored endorsement, coercion and funding of religion.

Through the denial of attorneys' fee awards under H.R. 2679, plaintiffs will be able to afford the expense of litigation only when they are seeking to protect certain constitutional rights but not others. This bad congressional policy serves to create a dangerous double standard by favoring cases brought under the Free Exercise Clause, but severely restricting cases under the Establishment clause.

4. Conclusion

If the Constitution is to be meaningful, every American must have equal access to the federal courts to vindicate his or her fundamental constitutional rights. The ability to recover attorneys' fees in successful cases is an essential component of the enforcement of these rights, as Congress has long recognized. H.R. 2679 is a direct attack on the religious freedoms of individuals. Therefore, I cannot support it.

I am pleased to learn that I am supported in my opposition to this ill-conceived and unwarranted assault on the First Amendment's Establishment Clause by some of the most thoughtful and knowledgeable groups on this subject in America, including: African American Ministers in Action, American Jewish Committee, American Jewish Congress, American Civil Liberties Unions, Americans United for Separation of Church and State, Jewish Counsel for Public Affairs, People for the American Way, The Urban League, American-Arab Anti-Discrimination Committee, Asian Pacific American Legal Center, Mexican American Legal Defense and Education Fund, National Association for the Advancement of Colored People (NAACP), National Senior Citizens Law Center.

I urge my colleagues to uphold the First Amendment's Establishment Clause and join me in opposing this shameful piece of legislation.

Rep. Steve King

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Mr. Speaker, I urge support for H.R. 2679, the ``Public Expression of Religion Act of 2005.'' This bill prevents American taxpayers from having to subsidize judicial activism, encouraged by liberal groups bringing establishment clause cases. Today, taxpayers are being forced to pay for the lawyers of the ACLU who demand the removal of religious text and imagery from the public square. These organizations attempt to make public policy through the courts, instead of Congress where such actions belong.

How many times will we stand silent as intolerant organizations such as the ACLU strong-arm the American people into removing cherished symbols of our Nation's heritage and faith? These actions are not compelled by the Constitution or supported by the will of the people. ``To compel a man to subsidize with his taxes the propagation of ideas which he disbelieves and abhors is sinful and tyrannical.'' Thomas Jefferson said that, and contrary to the ACLU, I believe that what our founding fathers believed in and stood for is still relevant today.

American taxpayers currently have to pay for ACLU ``victories.'' ACLU press releases, sadly I must say, tout quite a record. For example:

The County of Los Angeles was recently forced to remove a tiny cross from its official seal, symbolizing the founding of the city by missionaries. The removal of this cross is costing the county around $1 million, as it would entail changing the seal on some 90,000 uniforms, 6,000 buildings, and 12,000 county vehicles.

In San Diego, the ACLU forced the Boy Scouts out of Balboa Park because of the organization's religious beliefs, and taxpayers were required to pay $950,000 in legal fees and court costs to the ACLU.

In Barrow County, GA, the ACLU received $150,000 from taxpayers after a Federal judge ordered the county to remove a framed copy of the Ten Commandments from a hallway in the County Courthouse.

In Redlands, California, the city council was forced into changing its official seal but didn't have the funds to revise every symbol that contained the old seal. Now Redlands' residents see blue tape covering the tiny cross on city trucks, while some firefighters have taken drills to remove the cross from their badge.

These are just a few examples of the kinds of cases the American taxpayer is forced to subsidize. Americans should not be compelled to pay the lawyers who remove historic American symbols. The Public Expression of Religion Act would stop this action. I am glad to be a co-sponsor of this bill, and I urge support for its passage.

Rep. Lynn Woolsey

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Mr. Speaker, today the Republicans bring to the floor a bill that would undermine yet another basic freedom. The so-called ``Public Expression of Religion Act'' is nothing more than an attack on religious liberty. It promotes government-sponsored religion by limiting challenges to such constitutional violations.

This bill is about the government stopping people from standing up for their civil rights. By restricting people's ability to stand up for their civil rights when governments promote a particular religion, this bill chips away at the constitutionally protected separation of church and state.

That's not all that's at issue here. Language in the bill leaves the door open to all sorts of state-sponsored violations of constitutional freedoms. It casts a dangerously wide net.

This bill also gives the green light to civil rights violations. Exempt from monetary damage payments, local, State and Federal Governments would not have to think twice before violating the separation of church and state. They could act with impunity.

Paying attorneys' fees is a normal, time-honored procedure. It allows citizens to stand up for their constitutional rights, knowing that if the court rules in their favor, they can recover the legal fees. This bill is an egregious ploy to undercut Americans' civil rights.

Barring attorney's fees would be unprecedented. This dangerous example would set our civil rights on a slippery slope to extinction.

Rep. Lamar Smith

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Mr. Speaker, I yield back the balance of my time.

All time for debate has expired.

Pursuant to House Resolution 1038, the previous question is ordered on the bill, as amended.

The question is on the engrossment and third reading of the bill.

The bill was ordered to be engrossed and read a third time, and was read the third time.

The question is on the passage of the bill.

The question was taken; and the Speaker pro tempore announced that the ayes appeared to have it.

Rep. Lamar Smith

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Mr. Speaker, on that I demand the yeas and nays.

The yeas and nays were ordered.

Pursuant to clause 8 of rule XX, further proceedings on this question will be postponed.