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How the GOP Summer Agenda Would Remove Penalties for Religious Freedom Violations
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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