Sen. Brownback: ACLU -- Not Taxpayers -- Should Foot the Bill for Church-State Lawsuits

by Jody Brown
August 3, 2006

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(AgapePress) - - Some U.S. senators this week have heard testimony from both sides on a piece of legislation that would strip legal fees from church-state lawsuits. Such legal victories, often described as "Establishment Clause" cases, have provided the American Civil Liberties Union with millions of dollars in profits as it pursues numerous cases challenging public displays of religious belief in America.

Senator Sam Brownback (Rep.-KS) says public officials who fear costly litigation often cave in to the mere threat of lawsuits alleging violation of the separation of church and state. That is why he is sponsoring a Senate bill that would block plaintiffs from collecting attorneys fees for lawsuits alleging "establishment of religion."

The Public Expressions of Religion Act (PERA) (S. 3696) was the topic of discussion at hearings on Wednesday (August 2) before a Senate Judiciary subcommittee on the Constitution, Civil Rights and Property Rights. The U.S. House is considering similar legislation (H.R. 2679) that is sponsored by Indiana Congressman John Hostettler. Brownback has made it clear in recent weeks that if groups like the ACLU want to sue city after city for displays of religious images, it should be on their own dime -- not at taxpayers' expense.

Senator Sam Brownback

At yesterday's hearing, Brownback said attorneys fees should not be awarded to plaintiffs who file lawsuits alleging violation of separation of church and state. "Many jurisdictions simply acquiesce to the demands of the ACLU and prohibit all displays of religious faith in order to avoid the potential expense of litigation," the senator said. "Legal fees is the threat that the ACLU uses."

Such fees, he said, were never meant to be awarded in cases charging government with establishment of religion. "Congress's intent in passing the fee-shifting statute in 1976 was to prevent racial injustice and discrimination," the lawmaker pointed out. "Thirty years later these laws are being used simply to purge religious faith -- and symbols of any faith -- from our society at taxpayer expense."

But Melissa Rogers, a professor of religion and public policy at Wake Forest University, defended the fees, saying they are appropriate to discourage government from promoting religion. "I do not want the government to be involved in promoting the cross and the gospel," Rogers stated. "That is my job as a Christian; that is not the government's job."

And in the educator's opinion, religion that is promoted by the government runs the risk of being corrupted. "I am very fearful that the day the government gets its hands on the cross is the day that the cross is used as a means to a political end," she said.

But American Legion lawyer Rees Lloyd charged that lucrative lawsuits -- like the 17-year battle challenging San Diego's Mount Soledad cross -- sometimes are used as a threat against municipalities. He cites as another example a legal threat that prompted the City of Los Angeles to remove a cross from its county symbol. "That is the kind of hocus-pocus that is going on to accommodate views that I think are absolutely in the extreme," the attorney said, "and it made the ACLU the Taliban of American liberal secularism."

In recent days Congress has passed a bill that could save the 29-foot Mount Soledad cross, located in a suburb of San Diego, by making it federal property. President Bush is expected to sign the bill.

Also testifying before the subcommittee were Marc Stern of the American Jewish Congress, Mat Staver with Liberty Counsel, and Shannon Woodruff, senior research counsel with the American Center for Law and Justice.

Tony Perkins

Huge Fees a 'Perverse' Incentive
Tony Perkins, president of the Family Research Council, strongly supports Senator Brownback's Public Expressions of Religion Act -- and in light of the Mount Soledad situation, he believes now is the appropriate time for the legislation to be considered. "For long-term protection, we need the Brownback bill now," he says.

He calls the lucrative legal fees being won in lawsuits targeted expressions of religion a "perverse" incentive. PERA, he says, is needed to repeal a section of the Civil Rights Attorney Fees Act that gives groups like the ACLU "a financial incentive" to attack all public expressions of religion. "This perverse incentive also pressures embattled state and local authorities to capitulate rather than be forced into lengthy, costly litigation," says the FRC leader.

Perkins says the City of San Diego had been "feeling the pinch" with the Mount Soledad case, but that with the anticipated White House approval of the recently passed legislation, the ACLU and others -- he calls them "militant secularlists" -- will now have to sue the Pentagon to get at the cross. "And the Pentagon has some experience of fighting," he warns.