House Considers Changes to Church-and-State Suits

The House is expected to vote as soon as this week on a bill that would prevent plaintiffs in certain separation of church-and-state cases from recouping attorneys' fees. Supporters say the fees are used to unfairly coerce plaintiffs. Critics say the bill would roll back a major civil rights protection.

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The House is expected to vote soon on a bill that would prevent plaintiffs from recovering attorney's fees in certain cases involving the separation of church and state.

Supporters of that measure say these fees or the threat of being forced to pay them are used to unfairly coerce people. Critics say the bill would roll back a major civil rights protection, as NPR's Rachel Martin reports.

RACHEL MARTIN: The bill is called the Public Expression of Religion Act, and it targets controversial church and state separation cases - like displays of the Ten Commandments in courthouses, school prayer and religious symbols on veterans' memorials.

Under current federal law, people who win such cases against the government have their attorney's fees paid for by the losing side. Now, Congress is considering a bill that would eliminate that waiver only in Establishment Clause cases - cases based on the First Amendment ban on establishing a state religion.

Congressman John Hostettler of Indiana introduced the bill. He and his supporters say too often civil liberties groups use the threat of heavy legal fees to pressure municipalities into settling out of court, so a significant number of cases never make it to trial.

Representative JOHN HOSTETTLER (Republican, Indiana): And so what the Public Expression of Religion act does is it removes that chilling effect by saying no lawyer's fees, no damages or court costs...

MARTIN: But Ira Lupu - a law professor at George Washington University - says these cases are already an uphill battle, and removing plaintiffs' rights to recoup attorney's fees will make it less likely that people will bring them.

Professor IRA LUPU (Law, George Washington University): Typically, bringing those cases brings on the wrath of neighbors, hostility, sometimes death threats, sometimes threats of violence - so at least the attorney's fees provision is a way to say you could bring one and not have to go pay your lawyer to do something that's going to make you very unpopular with your neighbors and where you're not likely to recover any money if you win. You're just vindicating a principle.

MARTIN: In many ways, the debate over this bill is over the application of the Establishment Clause itself.

Mr. REESE LLOYD (Commander, American Legion, California): In an Establishment Clause cases, the injury is that one is offended by the sight of a religious symbol. I don't know of any other area of the law where mere offense gives anyone standing to sue, except in this area.

MARTIN: Reese Lloyd is a commander with the American Legion in southern California who testified before a Congressional Subcommittee hearing in support of the bill last month. Lloyd says the bill would help the American Legion fight lawsuits by civil liberties groups that sue to remove religious symbols from veterans' memorials in what he calls secular cleansing.

Mr. LLOYD: We ought to have some common sense and sense of proportionality as to what are we going to engage in as a culture in terms of our judicial process when it comes to maintaining the evidence of our own American history and heritage in the public square.

MARTIN: But critics of this bill say it's a blatant attack on church and state separation laws and the civil liberties groups that want them enforced.

Mr. MARC STERN (Attorney, American Jewish Congress): The message, not so subtle, is go ahead, put up religious symbols. We're going to make it very difficult for the ACLU or Americans United or the American Jewish Congress to sue you. Go ahead and defy them.

MARTIN: Marc Stern is an attorney with the American Jewish Congress. He admits there are times when attorney's fees are used a coercive tool, but he says that's also the case in other types of civil rights law. And to single out the Establishment Clause reveals what he calls a political bias against separation of church and state cases.

Mr. STERN: The only explanation that rationalizes that is hostility to Establishment Clause claims. Congress has no business being hostile to a set of constitutional claims.

MARTIN: Stern says if the bill passes, it won't mean the end of Establishment Clause cases, but it could set a dangerous precedent for rolling back civil rights protections. The bill is expected to go to the House floor as early as this week.

Rachel Martin, NPR News, Washington.

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