Veterans' Memorials, Boy Scouts, Public Seals, And Other Public Expressions Of Religion Protection Act Of 2006
VETERANS' MEMORIALS, BOY SCOUTS, PUBLIC SEALS, AND OTHER PUBLIC EXPRESSIONS OF RELIGION PROTECTION ACT OF 2006 -- (House of Representatives - September 26, 2006)
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Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the gentleman from Texas has a complaint, but his complaint is not against the American Civil Liberties Union, nor is it against section 1983 of the Code. His complaint is against the first amendment of the United States Constitution.
The authors of this bill do not like the protection the courts have given to plaintiffs who allege that their constitutional rights against the establishment of religion in the first amendment have been violated. So he says let us be punitive for winning.
The law says that anyone who brings a lawsuit against the government, Federal, State or local government, and alleges that that government, under color of law, is violating their constitutional rights, if that plaintiff wins, if the court says, and it is not just one judge because it is appealable up to the Supreme Court, but if the court says, yes, Mr. Plaintiff, that government official, mayor so and so, police commissioner so and so, or whatever violated your constitutional rights, you can get damages if you have, in fact, been damaged, monetary damages as you can in any civil lawsuit. You can get an injunction, stop, do not keep doing it, do not keep violating constitutional rights. And you can apply for attorneys' fees.
That is a very important provision. Because these lawsuits can be expensive, and if you cannot get attorneys' fees, it is very difficult to sue, even if you have a very well-established violation of your constitutional rights, and these attorneys' fees are only if you win the lawsuit.
So what does his bill come along and say? Only for establishment cases. We do not like establishment cases. We do not like the Establishment Clause of the Constitution. Only for Establishment Clause violations, you cannot get damages if you prove the government has violated your rights. Only for Establishment Clause cases, you cannot get attorneys' fees if you prove the government has violated your rights.
For any other deprivation of rights under law, violation of the free exercise clause of religion, violation of freedom of speech, freedom of press, whatever, you can get damages; you can get attorneys' fees.
This puts at a disadvantage in enforcing the law one class of people, religious minorities, basically, people who will sue the government for violating their rights under the Establishment Clause.
In more than a century, nothing like this has ever been done. We have always expanded rights under section 1983, our Nation's oldest and most durable civil rights laws. We have never curtailed them.
Just to be sure, I checked with the Congressional Research Service; and I place their memorandum to that effect in the RECORD at this point.
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Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, we have heard a lot of rhetoric that is really beside the point on this bill. We all agree, I hope, that the United States Constitution governs. We all agree, I hope, that the Bill of Rights confers certain rights on Americans, whether citizens or not. We all agree that freedom of religion, freedom to exercise religion, and freedom from establishment of religion are among those rights. We all agree, I hope, that the courts are there to enforce those rights. And then the disagreement begins.
This bill would seek to put a thumb on the scale and say, and we heard this rhetoric: We don't like the ACLU. We don't like what they are doing, even if the courts say they are right in a given case. Because we don't like what they are doing, because their winning court decisions violates our concept of what the Establishment Clause means, we are going to put a thumb on the scale and say that people who win lawsuits, who establish to the court's satisfaction that the government has violated their rights under the first amendment, the Establishment Clause, they cannot get damages, they cannot get attorneys' fees. We are going to put a poll tax on the Establishment Clause. Only people with a lot of money had better sue to enforce their first amendment rights.
If you don't have a lot of money but the government is violating your rights under the Establishment Clause, you can't sue. Because even if your attorney tells you you have got a 99 percent chance of winning because these people know they are wrong, it may still cost you a couple hundred thousand dollars. And they paint the picture of these poor cities and towns and governments having to kowtow to an organization, but the fact is, who generally has more money for a lawsuit? The City of New York, the City of Galveston, the town of whatever, or an individual?
You are putting a means test on protecting your rights to freedom of religion. I don't think that is what this country ought to be about. Because, after all, someone has got to pay for that lawsuit. Someone has got to pay the attorneys' fees, and that is either going to be the plaintiff who alleges a violation of his rights, or it is going to be the government that allegedly violated his rights.
The law says, current law, that if you prove that the government violated your rights, the government should pay the cost of that lawsuit, not you.
This bill says that, for most things, that is still true; but for the Establishment Clause rights, it no longer true, and you have got to pay for the lawsuit that the government made you bring by willfully, or perhaps not willfully, violating your rights.
They say, well, look at the City of San Diego. It is costing them hundreds of thousands of dollars. Well, if they listened to their attorney who said, gee, what you are doing may very well violate the first amendment or does violate the first amendment, then maybe they wouldn't have had to pay those hundreds of thousands of dollars. With this bill, there will be no financial incentive to obey the Establishment Clause.
Second, this bill does not, as I said before, cover only the cases they are talking about; it covers all establishment cases. And let's think of an establishment case. Let's assume, and we know that throughout the history of this country different ethnic groups, different religious groups have different political weights at different times. Let's assume that in some town the Sunni Muslims became a majority, and let's assume that they decided in that town that everybody, Christians, Jews, Muslims, in school had to recite every day on pain of expulsion from class there is no God but Allah, and Mohammed is his prophet. Pretty clear violation of the Establishment Clause in the first amendment.
Now, somebody who is not a Muslim in that case, someone who is Jewish or Christian or something else, decides to sue and wins the lawsuit; and they say you can't do that. You can't get attorneys' fees. He has got to bear the cost of that. Why? Because of hostility on the part of the sponsors of this bill to the Establishment Clause of the first amendment. Because they think that only the majority religion is ever going to be in the position to dominate a local government or any government.
Maybe so. But the real reason we have the first amendment is that you can never be sure. It may be that in the future some group that isn't the majority now will be the majority in some local area; and if you make it difficult to enforce the Establishment Clause of the first amendment, you or your children could be the ones imposed upon.
Now, we heard about this horrible situation, about the challenge to this or challenge to that. But, as I said before, the real complaint is not with the attorneys' fees, the real complaint is with the first amendment. You think you ought to be able to do whatever it was and what the courts have said, no, you can't. Well, maybe you shouldn't or maybe we should amend the Constitution. Which I wouldn't suggest, but that would be the right way to do it. Or maybe we should get different judges or whatever.
But if the courts say you are violating the first amendment, you shouldn't continue to do it. You should be able to get damages if you continue to do it. And the plaintiff, vindicating his own constitutional rights, should be able to bring a lawsuit without having a lot of money.
Now, we heard also that, well, the various organizations say that even if you pass this bill, they will still sue. But that is not the question. The first amendment does not belong, the Constitution of the United States does not belong to the American Civil Liberties Union or to Americans United for Separation of Church and State or United Americans Against the Separation of Church and State.
It is the individual right that you are violating here. It is an individual's right, or maybe a whole class of individuals, that you are violating when you violate the establishment clause of the first amendment, and any individual should have the right and the ability to go to court and if he wins, to get attorneys fees.
We have made a decision, we have made a decision in this country, and maybe you want to challenge that decision, but this bill doesn't do that. That decision is that when your constitutional rights are violated and you can prove it to the court, that the government violated your constitutional rights, then the government should pay for the cost of your vindicating the Constitution and vindicating your rights against the government that broke the law by violating your rights. That is a general principle.
Maybe you want to say no, we don't care that much about individual rights any more, first amendment, second amendment, whatever. From now on you want to sue the government because they violated your rights, you pay no matter what, even if you win. Okay, that is a different bill. I would oppose it, but that is a different bill. That is not this bill. This bill says we think all rights are important. If you think that the government violated your second amendment right to own a gun and you go to court and you prove it, the government pays for that lawsuit, and properly so.
But if you think the government violated your right to practice your religion by violating the establishment clause, and you prove it, the government doesn't pay. You have to pay for it because your right to own a gun is a heck of a lot more important than your freedom of religion, apparently. That doesn't make sense.
Mr. Speaker, if we believe in the individual rights enshrined in the Bill of Rights, if we believe in the first amendment and the freedom of religion in this country, and if we believe we shouldn't single out freedom of religion and say that freedom is less important, that freedom if you win, and forget the merits of these cases, if you lose, you don't get attorneys fees or damages.
We are talking about where you are right and the government is wrong. The government is violating your rights, and this bill says you shouldn't get damages or attorneys fees anyway because we don't like your point of view. That is wrong. It is demeaning to this Congress, and if we believe in freedom of religion and the Bill of Rights, we will defeat this bill.
Mr. Speaker, I yield back the balance of my time.
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