More Dumb Federal Legislation
Ed Brayton on HR 2679.
The House Judiciary Committee held hearings yesterday on HR 2679, the "Public Expression of Religion Act of 2005." This bill is being pushed heavily by the religious right because it would prohibit the awarding of legal fees to successful plaintiffs in establishment clause cases. Currently, if you sue the government for a constitutional violation and are successful - if the court agrees that the government has acted unconstitutionally - the judge, at his or her discretion, may order the agency that violated the constitution to pay reasonable legal fees for the other side. This is mandated in Federal law under 42 U.S.C. § 1988. HR 2679 would leave that in place, but exempt only one type of lawsuit from that rule - lawsuits based on establishment clause grounds.
Naturally, the religious right wants this bill to pass very badly because it would make it far more difficult for plaintiffs to bring suits against the government. And remember, they can only be awarded legal fees if they win the suit. What that means, in essence, is that the religious right is trying to rig the game. They lose such cases often in court and that frustrates them. So rather than develop better arguments to compete on a fair playing field, they want to rig the rules of the game to make it more expensive for the other side to play the game. But in the process, they are damaging key constitutional rights.
It's not by accident that the very first clause of the first amendment forbids the establishment of religion, nor is it by accident that among the first rights mentioned is the right to petition the government for the redress of grievances. When the government acts in an unconstitutional manner, it is absurd to expect the individual citizen who petitions the court to bring that unconstitutional action to an end to have to pay the cost of bringing the suit. The religious right, of course, knows this; that's why they aren't challenging the award of legal fees in general but only in the case of establishment clause cases - the ones they keep losing.
Read the whole thing.