How the GOP Summer Agenda Would Remove Penalties for Religious Freedom Violations
Don Byrd printable version print page     Bookmark and Share
Fri Jun 30, 2006 at 10:15:17 AM EST

As I posted earlier at the Baptist Joint Committee for Religious Liberty's blog, House Republicans have announced their legislative plan for the rest of the summer, leading up to the mid-term elections in November. Hidden in the "American Values Agenda," amid the traditional fare is HR 2679, the "Public Expression of Religion Act." The bill, which got a hearing in the House Constitution Subcommittee last week, would keep state and local governments from having to pay damages or attorney's fees as a result of violating the Establishment Clause of the Constitution.

Think about that. Imagine your local government decides to teach a version of creationism in science class, or promote atheism in social studies, lead evangelistic prayers during official government meetings, or offer government grants for Christian conversion efforts. This bill would effectively remove your ability to hold the government accountable. And, to add insult to that injury to your religious liberty (...and it is your religious liberty. When the religious freedom of any of us is threatened, we are all threatened.), you as the plaintiff would be required to pay the massive legal fees it takes to bring such a lawsuit proving unconstitutional actions.

Maybe most troubling is the case of one-time incidents, in which it is too late for injunctive relief to offer any help; damages and the recovery of attorney's fees are the only deterring tool available. Without them, and if this bill is passed, governments which have been proved to have violated religious liberty rights suffer no judicial consequences beyond a declaration that they were wrong. Absent the risk of lawsuits and damages, there would be precious little practical protection for religious freedom under the Establishment Clause.

As hearing panelist Marc Stern (Counsel for the American Jewish Congress) said of PERA [my transcription], in response to a question from Congressman Jerrold Nadler (D-NY), "It is an open invitation for people to defy the Constitution in the interest of political convenience at their will."

There may in fact be reason to amend and improve the current provisions for damages and attorney's fees in such cases. Certainly, plaintiff attorneys could abuse the fee-shifting policy. And it is possible for local governments to have violated the Constitution while nonetheless making a good faith effort to follow the law. But this bill addresses none of those concerns directly and instead offers a draconian undoing of the checks and balances in place today for enforcement of the Establishment Clause.

The PERA is not about stemming abuse, but betrays the frustration of those who simply disagree with that area of First Amendment jurisprudence, and have run out of ways to litigate their viewpoint. They would instead simply make it easier for government to flaunt the law with impunity.

The promoters of this ill-conceived legislation should not despair on behalf of religion - on the contrary. If there is one thing I've learned from the Baptist Joint Committee, it is that a strong Establishment Clause protects religion. BJC counsel Hollyn Hollman says it this way: "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. The tremendous amount of religious expression in our culture is a tribute to the success of our constitutional model."

When government is forced to stay out of the business of religion, all religions benefit. Elected officials need to hear as much from religious voices. Insofar as this bill may be an attempt to pander to religious voters, it is both misguided and mistaken about the interests of people of faith. As Hollman also says, "This is another example of some Members of Congress turning our first freedom on its head. You can't protect the `expression of religious freedom' by gutting the Establishment Clause."


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