<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:31491.wais]
S. Hrg. 109-756
PAYING YOUR OWN WAY: CREATING A FAIR STANDARD FOR ATTORNEY'S FEE AWARDS
IN ESTABLISHMENT CLAUSE CASES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND PROPERTY RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
AUGUST 2, 2006
__________
Serial No. J-109-104
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on the Constitution, Civil Rights and Property Rights
SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma RICHARD J. DURBIN, Illinois
Ajit Pai, Majority Chief Counsel
Robert F. Schiff, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 1
prepared statement........................................... 60
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 3
WITNESSES
Lloyd, Rees, Commander, District 21, Department of California,
American Legion, Banning, California........................... 5
Rogers, Melissa, Visiting Professor of Religion and Public
Policy, Wake Forest University Divinity School, Winston-Salem,
North Carolina................................................. 12
Staver, Mathew D., Found and Chairman, Liberty Counsel and
Interim Dean, Liberty University School of Law, Lynchburg,
Virginia....................................................... 10
Stern, Marc D., General Counsel, American Jewish Congress, New
York, New York................................................. 7
Woodruff, Shannon D., Senior Counsel, American Center for Law and
Justice, Washington, D.C....................................... 15
QUESTIONS AND ANSWERS
Responses of Mathew Staver to questions submitted by Senator
Feingold....................................................... 31
Responses of Melissa Rogers to questions submitted by Senator
Feingold....................................................... 38
Responses of Shannon Woodruff to questions submitted by Senator
Feingold....................................................... 40
SUBMISSIONS FOR THE RECORD
Alliance Defense Fund, Gary McCaleb, Esq., Senior Legal Counsel,
Scottsdale, Arizona, statement................................. 44
American Civil Rights Union, Susan A. Carleson, Chairman and
Chief Executive Officer, Arlington, Virginia, letter........... 57
American Legion, Steve Robertson, Director, National Legislative
Commission, Washington, D.C., letter........................... 58
Baptist Joint Committee for Religious Liberty, K. Hollyn Hollman,
General Counsel, Washington, D.C., letter...................... 59
Destro, Robert A., Professor of Law, and Lincoln C. Oliphant,
Research Fellow, Catholic University of America, Columbus
School of Law, Interdisciplinary Program in Law & Religion,
Marriage Law Project, Washington, D.C., statement.............. 61
Family Research Council, Tom McClusky, Vice President of
Government Relations, Washington, D.C., letter................. 66
Fitschen, Steven W., President, National Legal Foundation,
Virginia Beach, Virginia, statement and letter................. 67
Lloyd, Rees, Commander, District 21, Department of California,
American Legion, Banning, California, statement................ 94
McElroy, James E., Attorney-at-Law, San Diego, California, letter 106
Religious Freedom Coalition, William J. Murray, Chairman,
Washington, D.C., letter....................................... 109
Rogers, Melissa, Visiting Professor of Religion and Public
Policy, Wake Forest University Divinity School, Winston-Salem,
North Carolina, statement...................................... 111
Staver, Mathew D., Founder and Chairman, Liberty Counsel and
Interim Dean, Liberty University School of Law, Lynchburg,
Virginia, statement and attachment............................. 135
Stern, Marc D., General Counsel, American Jewish Congress, New
York, New York, statement and attachments...................... 174
Traditional Values Coalition, Rev. Louis P. Sheldon, Chairman,
and Andrea S. Lafferty, Executive Director, Washington, D.C.,
letter......................................................... 200
Woodruff, Shannon D., Senior Counsel, American Center for Law and
Justice, Washington, D.C., statement........................... 202
PAYING YOUR OWN WAY: CREATING A FAIR STANDARD FOR ATTORNEY'S FEE AWARDS
IN ESTABLISHMENT CLAUSE CASES
----------
WEDNESDAY, AUGUST 2, 2006
United States Senate,
Subcommittee on the Constitution, Civil Rights and Property
Rights, Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 2:34 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Sam
Brownback, Chairman of the Subcommittee, presiding.
Present: Senators Brownback and Feingold.
OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM
THE STATE OF KANSAS
Chairman Brownback. I will call the hearing to order. Thank
you for joining us today. My colleague, Senator Feingold, will
be here shortly. We are going to go ahead and start the
hearing.
I want to thank all the witnesses for coming today and for
appearing in front of the Subcommittee. I look forward to
hearing your testimony.
Since the founding of the American legal systems, courts
have required that all parties to a lawsuit pay their own
attorney's fees. This standard is known as the ``American
rule,'' and that was an explicit break from the ``loser pays''
systems employed by English courts. I was a practicing lawyer
myself. That was the rule in the system that I played under.
The American rule applies in all circumstances except where
Congress has expressly created an exception, and today we are
going to discuss one of those exceptions.
Under 42 U.S.C. 1983, individuals can sue State and local
governments for alleged violations of their constitutional
rights. And under 42 U.S.C. 1988, successful plaintiffs,
technically known as ``prevailing parties,'' can petition a
court to recover attorney's fees from the Government. Section
1988, originally known as the ``Civil Rights Attorney's Fee
Award Act,'' was adopted by Congress in 1976 to assist
individuals in combating civil rights abuses by allowing them
to recover their attorney's fees from the Government when the
court found a constitutional violation had occurred. A similar
exception was adopted in 1994 to allow fee shifting in suits
against the Federal Government.
Today, groups like the ACLU and others use these provisions
to bring claims against the Government for alleged violations
of the Establishment Clause. Here we are not talking about
civil rights cases. We are talking about Establishment Clause
cases. If they are successful, they may not only obtain an
injunction to stop the offending practice, but they may also
recover hundreds of thousands of dollars in fees. We have seen
a number of examples of this in recent years.
In 2003, the ACLU sued to prevent the city of San Diego
from allowing the Boy Scouts to use a public park. The city
settled the case, but not before agreeing to pay the ACLU
$950,000 in attorney's fees.
In 2002, ACLU and others sued the Chief Justice of the
Alabama Supreme Court to have a monument of the Ten
Commandments removed from the Alabama Supreme Court building.
In addition to forcing the removal, they collected $550,000 in
fees from the State of Alabama.
In 2004, the ACLU collected $63,000 in fees after suing to
remove a World War I memorial cross from the Mojave National
Preserve in California.
In 2005, the ACLU collected $150,000 in fees after
litigating a case in which the court ordered a framed copy of
the Ten Commandments removed from the Barrow County Courthouse
in Georgia.
In 2004, the ACLU threatened to sue the city of Redlands,
California, alleging that its official seal, which contained a
cross and a church, was an unconstitutional violation of the
Establishment Clause. Rather than risk incurring costly
damages, the city complied and removed the cross. When groups
protested, ACLU attorney Ben Wizner stated, ``If the mayor and
city council bend to public pressure and restore the sectarian
religious symbol to the city seal, the people of Redlands will
get a very expensive civic lesson from the Federal courts.''
Based on their success in Redlands, the ACLU then
threatened to sue Los Angeles County because the county's
official seal contained a tiny cross. The Board of Supervisors
voted to remove the cross to avoid expensive litigation.
We actually have a chart of these to show what the original
seal looked like and what the new version looked like, and you
can see, as they get those held up there--the one on the left,
my left, is the original version, on the right is the new one--
the size of the offending cross. Thank you very much for
holding that up.
With the threat of such large awards looming over their
heads, many jurisdictions simply acquiesce to the demands of
the ACLU and prohibit all displays of religious faith in order
to avoid the potential expensive litigation. The legal fees is
the threat that the ACLU uses. The aims of these outside groups
have no basis in the text and purpose of Section 1988.
Congress' intent in passing the fee- shifting statute in 1976
was to prevent racial injustice and discrimination. Thirty
years later, these laws are being used simply to purge
religious faith and symbols of any faith from our society at
taxpayer expense.
I recently introduced a bill which would require parties in
Establishment Clause cases to pay their own attorney's fees.
This bill has an identical bill offered in the House, commonly
known as ``The Public Expressions of Religion Protection Act of
2006.'' It would amend 42 U.S.C. 1983 and 1988 to limit
recovery in Establishment Clause cases only to injunctive and
declaratory relief and to preserve the long-established
principle that each side should pay its own way into the
courtroom.
And I would note at this point in time just what the
Establishment Clause says. It says, ``Congress shall make no
law respecting an establishment of religion or prohibit the
free expression thereof.'' The bill has several cosponsors, has
strong support from a number of outside groups, including the
American Legion. I have support from these groups, and I will
enter them into the record.
I look forward to the discussion on this important issue
from this panel. It is an interesting legal issue. It is one
that has a great deal of bearing on a lot of our litigation
that takes place in public venues today regarding expression of
faith and symbols of faith. So I look forward to the testimony
in this hearing and to other hearings that we will have in
further delving into this particular issue.
I will now turn to my colleague, Senator Feingold, for his
opening statement.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I, of course,
want to join you in welcoming our witnesses, and I thank you
and your staff for working with us to have this hearing on the
remedies available in cases involving challenges to Government
action under the Establishment Clause of the First Amendment to
the Constitution.
Mr. Chairman, the desire for freedom of religious
expression was a very important motivation for both the
establishment of the American colonies and the founding of this
country. The Constitution contains two important guarantees of
religious freedom in the First Amendment: Americans have the
right to freely exercise their religion, and Americans of any
faith or no faith at all have the right to be free from
Government establishment of religion in their lives.
The Establishment Clause and the Free Exercise Clause have
created some tension and uncertainty throughout our history,
but together they have allowed a freedom of religion and
religion itself to thrive in this country for over 200 years.
So, Mr. Chairman, when I see proposed legislation that could
stifle claims challenging violations of religious freedom, I am
wary. I certainly have reservations about the bill you
introduced last month, S. 3696, which would prohibit Federal
courts from awarding damages and reasonable attorney's fees and
costs to parties who prevail in Establishment Clause cases.
For that reason, I find the title of today's hearing,
``Paying Your Own Way: Creating a Fair Standard for Attorney's
Fees Awards in Establishment Clause Cases,'' to be a bit
misleading. It is hard to see what is fair about a standard
that singles out one of the Constitution's twin guarantees of
religious freedom to be less worthy of protection than the
other or than any other constitutional right.
Congress made the judgment right after the Civil War that
citizens should be able to defend their constitutional rights
by bringing actions against State and local governments. And 30
years ago, Congress recognized that being able to obtain
reasonable attorney's fees was a crucial component of the right
to obtain redress when the Government violates constitutional
guarantees. By barring the award of attorney's fees to
prevailing parties in certain cases, this legislation will, in
fact, discourage people from asserting their rights. And I note
that this has nothing to do with deterring frivolous claims
since, under Rule 11, sanctions already exist for that purpose.
Instead, the bill seems intended to deter even valid claims.
Remember also that fees under the Equal Access to Justice Act
are available only in cases where the Government's position was
not substantially justified. This bill would deny fees even in
the narrow category of cases where fees are permitted under
that statute.
The only reason I can see for this approach is hostility to
decisions that the courts have reached in some religious
freedom cases. I understand that some people are upset with how
the courts have enforced the Establishment Clause, but we have
a system of law in this country that has stood the test of
time. The courts are the final arbiter of the meaning of the
Constitution, and their decisions can be overturned only by
appeal or ultimately by amending the Constitution.
In my view, depriving people of the lawyers they need to
assert their rights by trying to deprive the courts of
jurisdiction over certain constitutional claims is the wrong
way to go about trying to change the law. And it sets a
dangerous precedent as well.
What will be the next constitutional right to be relegated
to second-class status?
Mr. Chairman, I was struck by something that Peter Keisler,
the President's latest nominee to the D.C. Circuit, said in his
opening remarks at yesterday's nomination hearing in the full
Committee. He was talking about the great honor it is to be a
judge in our legal system. He said that in our system,
``Anybody can file a case, make an argument, and be heard by a
decisionmaker.'' And he noted with pride that in this country,
``People are entitled to their day in court.''
I agree with those sentiments. But I would note that they
are given meaning by laws like 14 U.S.C. Section 1988 and the
Equal Access to Justice Act, which help assure that people with
valid constitutional claims will get their day in court even if
they can't afford a lawyer.
Again, Mr. Chairman, I believe that both of the religion
clauses of the First Amendment are critical in protecting
religious freedom and allowing Americans to practice, express,
and thrive in whatever religion they choose. Unfortunately, S.
3696, like the bill in the House, would put a finger on the
scales of justice, and I cannot support that.
But, Mr. Chairman, I thank you and I look forward to
hearing from our witnesses.
Chairman Brownback. Thank you very much.
We have got an excellent panel. Our first witness is Rees
Lloyd. He is a Vietnam veteran, a former ACLU attorney, and he
current serves as Commander of District 21 of the American
Legion, Department of California.
The next witness is Mr. Marc Stern, Assistant Executive
Director and General Counsel for the American Jewish Congress.
The third witness will be Mr. Mathew Staver, Founder and
Chairman of Liberty Counsel and Interim Dean and Professor of
Law at Liberty University.
Next we will hear from Melissa Rogers, who is a Visiting
Professor of Law and Public Policy at Wake Forest University
Divinity School, previously served as Executive Director of the
Pew Forum on Religion and Public Life in Washington, D.C.
And our final witness is Shannon Woodruff, Senior Research
Counsel for the American Center for Law and Justice here in
Washington.
I will run the time clock--let's run it at 6 minutes-- to
give you an outline of where you are. You can go over that if
you need to. All of your written statements will be placed into
the record as if presented. I don't know how Senator Feingold
is. I prefer a summary and then to be able to engage in
questions and answers. But do as you see fit and as you would
like to. But I think this is the first time this Committee has
heard this issue. I believe there has been a hearing in the
House. We do want to establish a record, but we really want to
try to get thoughts and input from people on a topic that may
have multiple hearings to come in the future. So all your
written statements will be placed in the record as if
presented. We will do that already.
Mr. Lloyd, delighted to have you here. The floor is yours.
STATEMENT OF REES LLOYD, COMMANDER, DISTRICT 21, DEPARTMENT OF
CALIFORNIA, THE AMERICAN LEGION, BANNING, CALIFORNIA
Mr. Lloyd. Thank you very much, Mr. Chairman. I am very
thankful for the opportunity that has been extended to the
American Legion to present its views on this issue, and I am
honored to be able to represent the largest wartime veterans
organization in the world, with 2.7 million members in our
family in the American Legion of Legionnaires, Auxiliary, and
the Sons of the American Legion involving some 4 million
members.
I was very interested in the opening statements that were
made from both of the Senators, and I will try to address some
of the things that were raised. I was particularly interested
in the notion that the filing of lawsuits under the
Establishment Clause would be stifled if attorneys were not
able to collect fees therefrom. I would think that if an
examination of the cases under the Establishment Clause in the
last 20 years would indicate anybody with an Establishment
Clause in this country who goes without a lawyer, it would be
astounding to me because the ACLU would be rushing there, as
they have in every case. I do not believe there would be any
stifling whatsoever. But I do think that it ought to be
appreciated that there is a chilling effect on the First
Amendment rights of those who are opposed to the view of the
ACLU and others epitomized by the ACLU, and that chilling
effect comes about because these attorney fees are not at all
awarded on the basis of prevailing party. The ACLU wins, they
collect. They lose, they don't pay.
The reason for that is that filing of a lawsuit under the
Establishment Clause is itself a First Amendment right, and in
order for a plaintiff to have to pay fees is a very, very high
standard, almost legally frivolous. So this is not in any way a
level playing field in terms of prevailing party receiving
attorney fees.
The other dimension is, I think, exemplified best or
illuminated by what happened in the Senate yesterday, and that
was a unanimous vote to approve the Mount Soledad Protection
Act. Mount Soledad right now is a case of national attention
involving the Veterans' Memorial in San Diego, California,
which has existed for half a century. A lawsuit was brought by
an atheist, backed by an attorney who was backed by the ACLU.
Litigation has gone on for some 17 years. A judge in May
ordered the cross destroyed, or he would fine the taxpayers
$5,000 a day. As a result of that, there is a lot of litigation
involved, including the Supreme Court's stay order and this
action yesterday.
We in the American Legion are amicus curiae in that case.
We would like to be able to more fully participate. But I
cannot advise my clients to do so because they then run the
risk of paying the ACLU's attorney, usually at the tune of $350
an hour.
I would like the Senators to appreciate that in the initial
litigation in Mount Soledad, the plaintiffs included the
president of the San Diegans for Mount Soledad, Mr. Phil
Thalheimer, the son of Holocaust victims. It included a war
hero, Dr. John Steele, Navy pilot and later medical officer. It
included George and Craig Dewhurst, who were the sons of the
person who built the monument.
When the lawsuits were filed with them, the attorney
representing the plaintiff sent letters to them threatening
them, ``If you remain in this lawsuit, we will seek attorney
fees against you individually to the tune of $300,000.'' All
three of them had to withdraw.
In your opening statement, Mr. Chairman, you indicated some
of the cases in California, one of which is the L.A. Seal case.
The boards that you demonstrated show a tiny seal, and, in
fact, that is an exact representation of the Hollywood Bowl.
And if you go to the Hollywood Bowl and look out, you are going
to see that cross because it stands on private land on a
mountain. It is an exact replication, but history has to be
changed now because that is offensive to the ACLU, although
that cross is part of our environment in Los Angeles on private
land.
In addition, you will notice the substitution that has been
made. That is the San Gabriel Mission. On that mission, there
is a cross on the top. If you hold up the board again, you are
not going to see that cross because it has been whitewashed
out. It is no longer there. That is a church. The ACLU is
offended by the tiny cross, but not by the mission, San
Gabriel. But what they did was to air-brush out the cross on
the top of the mission apparently so those who are not from
California won't realize what it is. That is the kind of hocus-
pocus that is going on to accommodate views that are absolutely
in the extreme and have made the ACLU the Taliban of American
liberal secularism.
I do not speak as a person who has an inveterate hatred of
the ACLU. I was an ACLU staff attorney in Southern California.
I am proud of my service there. I have been a civil rights
attorney my entire professional life. I was an attorney for
Cesar Chavez and the Farm Workers Union for 20 years. I know a
little bit about civil rights, and I know I never took a case
because I had to be bribed into taking it by an attorney fee
provision. We took those cases because we believed in them and
we did it on principle. And this Act is absolutely vital and
necessary to stop the assaults on our veterans' memorials,
other institutions of our country, symbols of our American
heritage that are being wiped out because they are offensive to
some small group of people, even though they are actual symbols
of our American history and heritage.
We are vitally concerned about preservation of our
veterans' memorials all across this country in the American
Legion, and they are under attack. Suits are being filed all
across the country. Taxpayers are unaware of the millions of
dollars that are being expended in attorney fees in profits,
and it is being used as a bludgeon on local elected bodies who
cannot even consider our complaints because their minds are
made up in advance because they cannot risk attorney fees being
imposed.
And, finally, there is nothing in the law today to stop the
precedents being set in the Mojave Desert Veterans' Memorial
case and the Mount Soledad case from being used by Islamist
terrorists or sympathizers in our midst to sue our American
institutions, our veterans' memorials, and then seek and
receive attorney fees. And I would ask you to appreciate that.
I know some people took that lightly when I raised it before. I
suggest they take a look at all the litigation out of
Guantanamo and the litigation to release the photographs from
Iraq, all of which were brought by sympathizers.
I thank you, Mr. Chairman.
[The prepared statement of Mr. Lloyd appears as a
submission for the record.]
Chairman Brownback. Thank you, Mr. Lloyd. I appreciate your
testimony and look forward to question-and-answer session.
Mr. Stern, thank you for joining us today.
STATEMENT OF MARC D. STERN, GENERAL COUNSEL, AMERICAN JEWISH
CONGRESS, NEW YORK, NEW YORK
Mr. Stern. Thank you, Mr. Chairman.
I don't take Mr. Rees Lloyd's charge lightly that we took
his remarks lightly about terrorism. I don't take that lightly
at all. It is a form of modern-day McCarthyism that charges
that anybody who brings a lawsuit that the American Legion
doesn't like is a fellow traveler of al Qaeda and other
terrorists, as if those groups routinely resort to our courts
to achieve their aims. I would think that we can have a hearing
without that sort of name-calling.
The bill before us differs in two important respects from
the House bill. They ought to be noted. One is a marked
improvement; that is, the House bill even prohibited
declaratory judgments. The Senate bill would allow declaratory
judgments to be sought and awarded. That is clearly an advance
over the House bill. However, and perhaps inadvertently, the
Senate bill, in referring to the ban on attorney fees
``notwithstanding any other provision of law,'' would seem to
prohibit the award of attorney's fees even where a defense is
frivolous within the meaning of F.R.Civ.P. Rule 11 or in cases
where there was a contemptuous defiance of a court order, as
there was in the case of Judge Roy Moore. It is well settled
that district courts have the authority to award attorney's
fees to parties who were forced to bring enforcement actions in
contempt proceedings. The ban on fees in cases may be
inadvertent, but the bill appears to forbid the award of
attorney's fees or damages even when those occur in a contempt
situation. So those are differences with the House bill. Again,
I don't know if they are intentional or not, but there they
are.
The central question before the Committee is whether there
is a reason to distinguish Establishment Clause cases, as
Senator Feingold said, from the entire universe of
constitutional and civil liberties claims. There are difficult
constitutional issues across the Constitution. Those of us who
suffered through law school remember the difficulty in
determining--this was a long time ago when the law was a lot of
simpler--between a regulatory taking that was permissible and
one that gives rise to a cause of damage. Constitutional
lawyers have been fighting about what that means since
Pennsylvania Coal up to, I think, the last Supreme Court term
or the term before.
The public forum doctrine is completely chaotic. The Fourth
Amendment, as the police regularly complain, is incoherent. As
for law professors--open any law review and you will find some
law professor complaining about some line of constitutional
cases not making any sense. There is nothing particularly
unique about the Establishment Clause being difficult.
If the Committee wants to create a good-faith exception
where local governing body could not figure out what the
constitutional answer is, because nobody can figure out the
answer, then that exception should apply not only to
Establishment Clause claims but to all constitutional cases.
Whether that is a good idea or not is a separate question. The
question that needs to be asked today is: Why is the
Establishment Clause different?
I have not heard or read anything, both in the House
hearing and the testimony here and the statements of the
members of the Committee today, which explains that
distinction, other than perhaps a hostility to the way the
courts are deciding Establishment Clause cases.
The bill before this Committee attacks two problems:
remedies, particularly monetary damages, nominal damages,
actual damages, and the like; and attorney's fees. Most of what
we have heard today, most of what we heard in the House of
Representatives Committee hearing, was about the problem of
attorney's fees. We have not heard much which would justify the
denial of actual damages in Establishment Clause cases.
There are two problems with the provisions relating to
damages. One is there are actually Establishment Clause cases
where there are real damages. For instance, there is a lawsuit
now pending in the District of Columbia brought by non-
liturgical church chaplains claiming that plaintiffs are at a
disadvantage in the Navy promotion process--I believe it is the
Navy--because there is a favoritism in favor of so-called
liturgical churches.
Plaintiffs are seeking promotions and back pay. Those are
real, hard, tangible, traditional damages. They would be barred
by this bill.
There are cases--Municipal Rescue Mission, that case, which
started in the 1930s, is still going on. There you have
regulation of disfavored religious charities, and a pass for
favored religious charities. Disfavored charities have sought
damages for additional costs and for lost solicitations. Those
are traditional damages. They would be barred by this bill.
Moreover, I have in my hands, which I would like to make
part of the record, the final judgment in Hansen v. Ann Arbor
Public Schools, a case in which on a Diversity Day, liberal
ministers were invited to explain why the Bible does not ban
homosexuality. When students asked to have a conservative
pastor brought in to participate in that panel, he was barred.
The District Court, quite properly, found a violation of
the Establishment Clause. The judgment is in favor of
plaintiffs, against defendants, in the amount of $35 nominal
damages and $87,000 in attorney's fees. That is not an ACLU
lawsuit. It is a conservative lawsuit, a conservative legal
fund, and you have nominal damages.
Without those nominal damages, the lawsuit would have been
moot. It was a one-time event. It was over by the time it could
be litigated. Eliminating nominal damages meant that the
plaintiffs in Hansen would have been out of court.
There are other such cases. The elimination of damages,
which I have not heard justified, has serious implications,
both on the merits and in procedural terms.
Finally, there is the question of attorney's fees, which I
have dealt with at length in American Jewish Congress's written
testimony. Exactly how radical this proposal is for at least
some of its proponents on this side of the table is illustrated
by two of the cases that Ms. Woodruff cites in her written
remarks, as exemplifying how the ACLU, has abused the privilege
of attorney's fees. Those cases are Freiler v. Tangipahoa
Parish School Board and Wynne v. Great Falls School District. I
want to tell you the facts of those cases because they
illustrate exactly how far this bill goes.
Freiler involved a school board's disclaimer of the theory
of evolution. I think disclaimer can be written, and ought to
be written, but not the way Taugipakoa Parish did. This
particular disclaimer read that the theory of evolution is not
necessarily in conflict in the school board's view, with--and I
am quoting here--``the biblical version'' of the creation of
man.
Now there is no ``the biblical version'' of the creation of
man, except for absolute biblical literalist. But there are
lots of religious views, which are catalogued in my amicus
brief in that case, by very orthodox religious groups that
don't read the Bible literally. Here you have the Government
taking a stand about how people ought to read the Bible.
In Wynne, a town council always prayed in Christian terms,
in the words of the Fourth Circuit, hardly one of the ACLU's
favorite circuits, you had a government affiliated with a
specific faith.
Those are the sorts of cases which arise, which are clear
violations of the Establishment Clause on almost anybody's
reading of it, an official preference for one faith or the
other, not in the historical context but in a current,
contemporary context, and which would be barred from attorney's
fees by this legislation. Wynne, incidentally, was not an ACLU
case. It was a private lawyer who was handling the case for an
impecunious individual on her own. Freiler I believe was an
ACLU case. Wynne is a case that would be really out of court if
this bill were adopted.
Thank you very much.
[The prepared statement of Mr. Stern appears as a
submission for the record.]
Chairman Brownback. Thank you, Mr. Stern.
Senator Feingold. I apologize for interrupting, but I have
to leave the hearing.
Chairman Brownback. Before I forget, you had a written
statement that you wanted at the end of that or something
entered into the record.
Senator Feingold. Yes.
Chairman Brownback. That will be placed in the record.
Senator Feingold. I have a similar request. I apologize for
having to leave. This is an important hearing, but I have to go
to an important hearing of the Intelligence Committee. And
before I go, I wanted to put a few things in the record, if
that would be all right.
Chairman Brownback. Without objection.
Senator Feingold. I hope to be able to return, but if I
cannot I want to thank all the witnesses, and please excuse me
for not being able to stay.
I would like to submit for the record letters from the
American Civil Liberties Union, the Americans United for
Separation of Church and State, and the Jewish Council for
Public Affairs expressing opposition to S. 3696.
Chairman Brownback. Without objection.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Brownback. Thank you. Thank you for being here. I
hope you can return. We will have a good dialogue.
Mr. Staver, thanks for being here.
STATEMENT OF MATHEW D. STAVER, FOUNDER AND CHAIRMAN, LIBERTY
COUNSEL, AND INTERIM DEAN, LIBERTY UNIVERSITY SCHOOL OF LAW,
LYNCHBURG, VIRGINIA
Mr. Staver. Mr. Chairman, Senator Feingold, members of the
Committee, thank you for inviting me. My name is Mathew Staver.
I am Founder and Chairman of Liberty Counsel and the Interim
Dean and professor of Law of Liberty University School of Law.
I come to this Committee having litigated and taught
extensively in the areas relevant to the subject matter of S.
3696. Sections 1983 and 1988 are exceptions to the American
rule for damages and attorney's fees. Absent an authorizing
statute, the American rule provides that each party bear their
own cost. These sections are particularly suited for those
cases in which plaintiffs are ill-financed and where the law
has relatively predictability. However, in Establishment Clause
cases, many, if not most, of the plaintiffs are represented by
public interest law firms which will finance the case,
irrespective of these statutes.
Moreover, Establishment Clause jurisprudence is the most
unpredictable and confusing area of law. There have been and
remain sharp disagreements among the Justices of the Supreme
Court over the meaning and application of the Establishment
Clause. In an area of law where there are conflicting court
decisions for every conceivable proposition, it makes little
sense to award damages and attorney's fees to plaintiffs with
diametrically opposed positions. Instead of encouraging ill-
financed plaintiffs to vindicate their rights, these statutes
have become a financial bonanza to attorneys on both sides of
the Establishment Clause cases.
While conflicting court opinions will invariably occur in
any area of law, it is particularly troubling when conflicting
opinions are the rule rather than the exception. In my written
testimony, I discuss in detail absurd examples of court
decisions that reached opposite and irreconcilable results. One
sad example involves New York City public school funding cases
which were litigated at enormous expense over a decade or more.
The same school district paid large attorney's fees after
losing its case at the Supreme Court. But 10 years later,
following a second challenge, this time this same school
district won. In the Agostini decision, the Court overruled its
prior precedent involving the same New York City school
district. However, the scarce tax dollars were diverted to
attorneys rather than to the disadvantaged school children.
By providing damages in a fee-shifting statute in such a
confused area of law, the complaining plaintiff often uses the
mere threat of financial punishment to force government
officials to a desired result, even if the result is not the
right one. The confused and conflicted opinions of the
Establishment Clause is certainly evident with the Supreme
Court itself. The Supreme Court Justices have called the
Establishment Clause ``hopelessly confusing.'' I don't think
there is any other area of law that they have criticized so
vociferously as in the Establishment Clause.
The Court currently uses several tests, some of which
conflict with one another, and sometimes the high Court forgoes
using any test at all. The Court uses the oft-maligned three-
prong Lemon test. The Court later modified the three prongs to
two prongs. But in certain institutional funding cases, the
Court may resurrect the third prong.
For several years, the Court added what is called the
``political divisiveness prong,'' but then overruled itself and
eliminated this prong. The Court also uses the historical
analysis in Marsh. In most cases, the Marsh test cannot be
reconciled with the Lemon test. The plaintiff can win under one
test and lose under the other, but we are left with little or
no guidance to determine which test should be used.
The Court in Lee v. Weisman developed the so-called
coercion test, but Justices are not in agreement when it should
be used, nor do they agree whether coercion is psychological
only or whether it involve some kind of force or penalty.
Knowing the problem created by the Court itself, Justice
Sandra Day O'Connor, shortly before her retirement, proposed a
brand new test in the Newdow case that was supposed to be used
in limited situations. Justice Thomas, however, has now
advocated that the Establishment Clause does not even apply to
nor bind the States.
Then, of course, the Court sometimes uses no test at all
and, even worse, provides absolutely no explanation as to why
no test is used.
If the Justices of the Supreme Court are conflicted over
the meaning of the Establishment Clause, then it is
particularly inappropriate to punish government officials with
the threat of damages and attorney's fees for a mere misstep in
this constitutional mine field.
For example, the Ten Commandments case, one of which I
argued in 2005, is absolutely irreconcilable. No professor of
law or practitioner in this area has argued that these cases
are reconcilable, no matter what side of the aisle you come
from on the Establishment Clause. The Supreme Court on the same
day heard oral arguments on Ten Commandments decisions and
handed them down on the same day as well. Justice Sandra Day
O'Connor, just before her retirement, said the Court had an
opportunity to clarify but missed the opportunity in this case
and, in fact, caused further confusion.
Indeed, on December 20, 2005, a unanimous Court of Appeals
for the Sixth Circuit Court of Appeals said that, ``The Supreme
Court has left us in Establishment Clause purgatory.''
Another peculiarity with the Establishment Clause besides
its absolute confusion, I think that would be admitted by all
parties, that makes Section 1983 and 1988 inappropriate is the
exception to the normal rules of standing. In every other area
of law, a plaintiff must experience a direct and concrete
injury. But in Establishment Clause cases, Federal courts have
relaxed these requirements and carved out exceptions to the
normal standing rules. In most lower courts, a plaintiff can
bring an Establishment Clause challenge simply because the
litigant claims that he or she is offended by some imagery,
words, or alleged action. This exception to the general rules
of standing have opened the floodgates of litigation.
And so when you combine an exception to the rule that has
opened the floodgates of litigation wherein you can simply file
suit for a mere offense that something is an image, a word, or
an action and at the same time the area of law is absolutely
confusing and you can find decisions on both sides of the same
exact decision--take Good Friday. There are courts going both
ways. It makes no sense to have Section 1983 and 1988 punish
government officials who are not Justices of the United States
Supreme Court.
I urge this Committee to pass S. 3696. Thank you for
allowing me to speak.
[The prepared statement of Mr. Staver appears as a
submission for the record.]
Chairman Brownback. Thank you very much. That was a very
good, very concise set of thoughts. I look forward to the
dialogue and the interaction in the Committee as we analyze
some of that.
Professor Rogers?
STATEMENT OF MELISSA ROGERS, VISITING PROFESSOR OF RELIGION AND
PUBLIC POLICY, WAKE FOREST UNIVERSITY DIVINITY SCHOOL, WINSTON-
SALEM, NORTH CAROLINA
Ms. Rogers. Good afternoon, Mr. Chairman, and thank you for
holding this hearing and for inviting me to participate in it.
I appreciate that.
At the outset, I just want to make a couple of quick
comments. As I have listened to the rhetoric surrounding this
bill--the debate about it and the bill that was proposed in the
House--it seems to me that one could get a false impression
from some of this rhetoric. Some of the rhetoric seems to
suggest that the First Amendment requires religion to be
stripped out of the public square, and that is just wrong. The
First Amendment prohibits the Government from promoting or
endorsing religion, but it protects the rights of individuals
and groups to advance their faith in American public life.
And, of course, we only need to look all around us in
Washington, D.C., to see evidence that the First Amendment
protects those rights. If we look at the National Mall, for
instance, there have been Promisekeeper rallies on the Mall.
The Pope has held Mass on the Mall. We have Million Man Marches
on the Mall. Here in Congress today, religious groups will be
on the Hill to talk about issues as different as the minimum
wage, State tax repeal, Internet gambling, marriage issues,
Middle East policy, and the genocide in the Sudan, which I know
is an issue you have worked on very hard, Senator.
So these are issues where the First Amendment protects the
right of individuals to bring their faith into the public
square, and quite properly so. There is no sense from the First
Amendment that religion has to be purged from the public square
or cleansed, and those are verbs that I have heard quite often
used.
Similarly, in the White House, the President often makes
reference to his faith and how it shaped his life, and that is
all quite proper. Religious groups are invited to the White
House to talk about issues or to celebrate Passover or
Christmas or another religious ceremony.
And then if we go across the river to Arlington Cemetery
and the gravestones there, we have to think about the fact that
these are people who have made the ultimate sacrifice and that
there are religious symbols, if the family wishes, on those
gravesites, whether they are the Star of David or the Cross or
some other religious symbol. That is quite appropriate. And I
would reject any suggestion that those are under any kind of
threat by the First Amendment. They are not. That is protected
religious expression, and properly so.
So I think it is very important for us to remember in this
discussion that the First Amendment protects the rights of
individuals and groups to advance their faith in the public
square, and those are just a few of the ways that are clearly
protected by the First Amendment today, and properly so.
Looking at this legislation today, I think that the concern
that has been mentioned thus far is that the Establishment
Clause is singled out by this legislation. It is the defining
characteristic. If you look at it, it is quite striking because
the bill does not talk about all constitutional claims or even
all church-state claims. It singles out the Establishment
Clause. And like Marc Stern has mentioned, I have searched for
legitimate explanations of that, but it seems that the
explanation that I am gathering is that some don't like some of
the Establishment Clause principles or the way they have been
applied by the Supreme Court. And I would suggest that that is
a disturbing and dangerous basis for Congressional action.
As Senator Feingold said earlier, what right tomorrow will
be made a second-class citizen because some do not like the
principles that the Supreme Court has articulated or the way
that they have been applied? That is a dangerous precedent to
set.
Some have tried to suggest that the Establishment Clause is
uniquely confusing or unpredictable or unstable. I think that
is just not true. There are many parts of the Establishment
Clause that are exceedingly clear that would be affected by
this bill.
For example, it has already been mentioned that the Supreme
Court has said that one of the clearest commands of the
Establishment clause is that the Government may not prefer one
faith over another faith. In other words, there is a
requirement under the Establishment Clause that the Government
treat all faiths equally, and that is a bedrock principle. But
this bill would disfavor claims that involve Government
discrimination against certain faiths.
Some of the cases that involve this kind of discrimination
have already been mentioned, and I talk about some others in my
testimony at greater length. I have mentioned a case that
involved an incident where a public school teacher was saying
how bad Mormonism was in front of a Mormon student. There have
been allegations in a case out of Delaware that the public
schools have favored Christianity in a variety of ways, with
teachers saying that there is only one true religion in this
public school and teachers giving special privileges for
students who go to Bible Club.
Marc Stern already mentioned a case out of Ann Arbor,
Michigan, that was troubling where the school hosted a panel on
homosexuality and religion, but the school only invited clergy
leaders who believed that homosexuality and the Bible were
compatible. When a student tried to invite a clergy person with
a different view who believed that the Bible and homosexuality
are not compatible, the school refused. So the student sued and
won in that Establishment Clause lawsuit. The court found that
the principal effect of the school's action was to suggest a
preference for a particular religious view, and that violates
the Establishment Clause. Well, this bill would disfavor and
discourage these kinds of claims. I would submit, however, that
none of these claims should be disfavored by the law.
And, finally, I would like to mention there is often also
the suggestion that the Establishment Clause--or the Supreme
Court's interpretation of it reflects some kind of hostility to
faith. That is not what the Establishment Clause says. It is
not how the Supreme Court has interpreted it. One of the
principles of the Establishment Clause is that the Government
should not promote religion. It is not the Government's
business to promote religion. It is the business of citizens
and religious groups. And, indeed, when the Government promotes
religion, it harms not only religious liberty but also
religion; not only minority faiths that are not favored, but
also the majority faith that is favored by the Government.
And here I want to quote a Baptist pastor from the 1800s,
John Leland, who said, ``Experience, the best teacher, has
informed us that the fondness in magistrates to foster
Christianity has done it more harm than all the persecutions
ever did.''
I think that it teaches us today that we should be very
careful about trying to discourage or disfavor lawsuits that
would allow the Government to promote symbols of faith,
particularly one symbol of faith over another, but to promote
religion generally is also a problem under the Establishment
Clause.
For example, I as a Christian hold a deep reverence for the
Cross. I do not want the Government to be involved in promoting
the Cross and the Gospel. That is my job as a Christian. That
is not the Government's job. And 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. I do not want the
Government to begin to co-opt religious symbols. That is a very
scary prospect.
So, in my opinion, this bill is very disturbing. I think it
ought to disturb Christians when the Government tries to co-opt
our religious symbols. I think this bill is disturbing because
of the dangerous precedent it will set in picking and choosing
among constitutional rights, some for favor, some for disfavor.
And I think it will discourage compliance with parts of the
Constitution and harm religious liberty.
So for these and other reasons, I would respectfully urge
the Committee, to reject the bill.
[The prepared statement of Ms. Rogers appears as a
submission for the record.]
Chairman Brownback. Thank you for your testimony. Our final
witness today will be Shannon Woodruff to testify. Thank you
for joining us.
STATEMENT OF SHANNON D. WOODRUFF, SENIOR COUNSEL, AMERICAN
CENTER FOR LAW AND JUSTICE, WASHINGTON, D.C.
Ms. Woodruff. Thank you. Good afternoon. I appreciate your
allowing me to come and express the views of the American
Center for Law and Justice in support of this law.
I want to start by addressing one of the statements made by
Senator Feingold, his concern about this bill putting a finger
on the scales of justice. I would suggest that, in the absence
of this removal of attorney's fees, the ACLU will have no
reason to remove its fists from the same scales of justice.
While Section 1988 was enacted for the very laudable
purpose of making sure that poor plaintiffs were able to
protect their basic civil rights, it has had the unintended
effect of financing a fierce campaign by a few advocacy groups,
a campaign of intimidation against any and all religious
expression, acknowledgment, and accommodation in the public
square. The threat of costly litigation has put Government
officials into a sort of secular straitjacket where they
actually become predisposed toward religious discrimination
rather than accommodation in order to protect their limited
budgets.
This chilling effect is felt on two levels. At the local
level, it encourages plaintiffs to bring lawsuits that are not
well grounded in the law. It also causes the Government
officials to surrender to demands that might not be
constitutionally required. Second, on a national level, it
spreads a wave of fear when these large attorney's fees awards
come down that creates a backlash against free speech and free
exercise rights. The Government officials are taking a
calculated risk that it actually might be safer to suppress
this religious expression from a liability standpoint than
accidentally allowing too much and draw the attention of these
eager plaintiffs. The chilling effect at both levels is
unacceptable. By eliminating taxpayer dollars from the
equation, this law would remove the financial incentives for
these overly zealous plaintiffs to challenge permissible
religious expression.
I just want to touch on the confused state of the
Establishment Clause, although I think Mr. Staver did a good
job of that. But that certainly is fueling this campaign, in
addition to these large attorney's fees awards that the ACLU
uses to basically bear some defendants into submission.
Nowhere is this problem more evident than in the Ten
Commandments cases that were discussed in McCreary and Van
Orden last summer. In each case, the vote was 5-4. Seven
Justices issued a total of ten opinions and in neither case
applied the same legal analysis. One commentator declared it as
``adding mud to murky water.'' And so that confusion at the
Supreme Court is only magnified when you look at the lower
courts.
This indecision can only be described as an analytical
schizophrenia, and so plaintiffs will use this legal
uncertainty to threaten local governments with hundreds and
thousands of dollars of attorney's fees unless they stop
whatever the activity is that is offending them. Even where a
claim borders on frivolous, the fear factor can force a
government, a local government, into settlement, not based on
the merits but just on the fear of those attorney's fees.
Under those circumstances, it is both counterintuitive and
counterproductive to award attorney's fees to the prevailing
party. Where Supreme Court Justices cannot consistently discern
the parameters of the Establishment Clause, it is important
that local government officials are given at least a small
margin of error when they attempt to do the same.
Fee awards in these cases can be devastating, especially
when we are dealing with small towns and school boards. The
recent high-profile case in Dover, Pennsylvania, illustrates
this. The court ordered the school board to pay over $2 million
in attorney's fees for including an arguably constitutional
disclaimer in its evolution teaching. The ACLU reduced that $2
million fee to $1 million when the school board agreed not to
appeal this case. The ACLU is quick to use this award to
continue its campaign of intimidation, stating, and I quote,
``The $2 million was a very conservative number, so they got a
terrific deal. The next school district isn't going to get the
same break that Dover did.''
San Diego paid the ACLU $950,000 for leasing land to the
Boy Scouts. Great Falls, South Carolina, a small town, was
sued, and the fees totaled more than a quarter of the town's
annual administrative budget.
And I think it is important to recognize that the ACLU is
not only challenging Government religious expression. It is
challenging any case where the Government even allows private
religious expression. And I think some of the comments today
have steered it to appear as pure Government action, and that
is not the case.
A lot of times, municipalities will just fold immediately.
They will not even defend the expression at the district court
level. The city council in Duluth, Minnesota, agreed to remove
a 40-year-old Ten Commandments monument after the local
newspaper warned readers that standing up to the ACLU could
cost up to $90,000. So the constitutionality of that monument
was never litigated, but the ACLU was able to use the
settlement to pressure other municipalities.
I think it was Professor Rogers who referred to the need
for--or maybe it was Senator Feingold, that Rule 11 will
prevent these frivolous claims. Well, the fact of the matter is
that most of these lawsuits don't ever get into a courtroom
because of this pressure and this immense fear.
This law would not deprive any rights; rather, it is based
on the inherent difference between the Establishment Clause and
traditional civil rights cases. The reason the Establishment
Clause can be singled out in this manner is because there is
abuse that is not present in other civil rights cases, and this
inherent difference I think eliminates any concern about a
domino effect.
There is a qualitative difference, for example, between the
individual rights protected by the Free Speech, Free Exercise
Clauses, the Fourth Amendment Search and Seizure Clause, or the
right to vote, and a declaratory judgment that some county's
Christmas display does not have enough reindeer next to the
Baby Jesus.
These are not twin guarantees, as Senator Feingold
suggested. They are both important, but they are not the same.
This law will not affect the prosecution of legitimate
Establishment Clause claims. The fact of the matter is these
claims are not being brought by impoverished plaintiffs. There
are plenty of organizations with resources to help any
plaintiff who seeks to enforce the Establishment Clause. The
current situation is actually frustrating the proper
enforcement of the Establishment Clause.
The ACLU or other organizations are not never going to turn
down a valid Establishment Clause case. The hope is that they
will, however, be a little bit more judicious in their
selection of those cases.
Litigation under the current system has truly transformed
the Establishment Clause into a very real and complex obstacle
for many Americans to exercise their First Amendment freedoms.
It has also forced many local and State governments to sever
their ties with America's rich religious traditions. Although
1988 was designed to protect the little guy and help the little
guy, it is being used by the big guys to actually strap local
governments and with the threat of litigation silence them.
This law is necessary to end this abuse.
Thank you.
[The prepared statement of Ms. Woodruff appears as a
submission for the record.]
Chairman Brownback. Thank you. I appreciate it. I
appreciate all the testimony of the witnesses, and in case you
are wondering the motivation for introducing the bill itself, I
put it forward--it is something--we are all products somewhat
of our own past and our background, I guess--as a small town
lawyer representing a couple of small towns. And I would see--I
did not see these when I was practicing there, but I have read
enough of them when groups come forward, and it typically is
the ACLU. There are other groups, but it is typically the ACLU
that comes up to a small town with a limited budget and not a
large staff at all, and they say, We don't like this particular
item that has some Establishment Clause feature to it, and then
the threat is always--and what the city council members are
always asking about, What are the attorney's fees in this case?
And it is a bludgeon. It is blackmail from any sort of free
discussion of, well, maybe we should take that off because it
does not reflect what the citizens here have. Or others say,
well, no, we should not do that because we are not trying to
put our hands on the cross, I guess, as Professor Rogers is
asking if that is the purpose. It is not the purpose of doing
this. It is simply to allow there to be a fair discussion and
it not being decided by the threat of legal fees. It should be
decided by courts and not by a threat of legal fees. And that
is why this is being put forward. That is why I put forward
this bill.
I would like to know, Mr. Lloyd, going to some specific
questions, you said that there are a number of examples of
where local units of the American Legion are being threatened
with legal fees if they do not--or a number of examples of
local suits. Could you cite some of those? Or perhaps they are
in your written testimony, but do you know of some that are
current situations where people are being threatened with legal
fees?
Mr. Lloyd. The threat that was absolute as in the Mount
Soledad litigation to save the Mount Soledad Veterans' Memorial
as it is, where it is. The ``as it is'' includes a cross. That
is part of the integrity of the entire memorial, and we are
opposed to desecration by amputation because it happens to be a
symbol not only of sacrifice but to have a religious aspect as
well. The original plaintiffs in that case, as I said, were
Phil Thalheimer, who is Jewish; the president of San Diegans
for Mount Soledad; Dr. John Steele, a Navy pilot, a medical
officer later; and the sons of the person, the contractor who
actually built it. And they were plaintiffs, and they were
threatened. And those letters are in the record of the Fourth
District Court of Appeals at this time.
Chairman Brownback. Do you have other cases? That one is a
well-known case. Are there others that you hear about from
American Legion groups or other local units of government
across the country? Mr. Lloyd. What I hear is obvious because I
am lawyer for them. And, by the way, I am a pro bono lawyer for
the American Legion. I don't have to be bribed into doing the
right thing.
We have to advise and I have to advise the American Legion
that when we go into a case, if we intervene as a party to
fully participate--and I would hope--you mentioned your
background as a municipal attorney. They are not experts on
constitutional law, the Establishment Clause. Chairman
Brownback. I certainly was not. I want to enter that for the
record.
Mr. Lloyd. Well, they have to either go out and hire
attorneys, or you send in somebody whose whole life is
litigating constitutional issues against somebody who knows all
about contracts in the municipal sector, and then they end up
looking at all these attorney fees.
I have to advise the American Legion--and I do--if we go in
and intervene in the case and fully participate and bring the
degree of expertise that we can to the case, you can end up
paying the ACLU's attorney fees.
We have not gone in. We are an amicus curiae, a friend of
the court, in the Soledad case. We are an amicus curiae in the
Mojave Desert case, the Mojave Desert World War I Veteran's
Memorial case. We would like to be participating fully. Our
First Amendment rights are being throttled because we cannot
get in front of those courts because of that risk.
And I would say to you, in regard to that, in the L.A.
County Seal case where you had this display, nobody got
involved in that case because the county settled rather than
face the risk of the imposition of these fees. They are
spending $1 million to change their seal, fearful that a court
would award even more in light of what happened in San Diego.
In Redlands City Council, very similar to the examples you
were giving, all five council people said, ``We don't want to
change our seal, but we are being advised by our pro bono
counsel that we could end up paying their fees. We cannot do
that. We need the money for civil services.'' They cannot
afford to change it. They are calling in everybody who has a
badge in their town, and they are drilling holes through the
cross on the badges of police and fire and inspectors.
I suggest to you that is obscene that we have elected
bodies so fearful of these attorney fees that they would drill
holes through the badges in order to satisfy the whims, the
constitutional whims, of the ACLU with one threat: ``You will
pay our attorney fees.'' I am on a memorial honor detail team,
and I think of Attorney Rogers' statement. She rejects the
notion there is a threat. Really? I am on an honor guard team
of Riverside National Cemetery. It is the largest one in the
country in terms of space, over 80,000 graves there with
crosses and Stars of David and other religious symbols that are
the choice of the family. I suggest to you, Senator, if it is
unconstitutional to have a religious symbol on Federal
property, which is what the ACLU says and asserts, you cannot
have somebody make a choice to do it. But beyond that, these
symbols are not limited to what is on gravestones. At Riverside
National Cemetery is the United States National POW-MIA
Memorial, done by artist Lee Millett, a Vietnam veteran--and,
by the way, Vietnam era. He is a Vietnam vet of a recondo unit.
His father was a Medal of Honor recipient--is a Medal of Honor
recipient. He designed that statue that is there. It is
absolutely magnificent. But he also inscribed a prayer in it.
That is a target. Almost every one of our veteran cemeteries
also has symbols that are not on gravesites but in the park
itself, in the cemetery itself. They are all at risk.
And who is to say that those who hate America are not going
to bring these suits? And I heard the objection, oh, this is
McCarthyism. That is absolute nonsense. There is nothing in
your bill that would stop anybody from filing a suit. They just
are not going to get attorney fees for it. And we should--
Chairman Brownback. Let me--
Mr. Stern. Senator, could I respond--
Ms. Woodruff. Senator, could I--
Chairman Brownback. I knew we were going to get this way. I
will give you a chance to respond. I want to ask a couple of
questions here, and then I would be happy to have you respond.
Really, I want to look at this as much as we can as a legal
issue that obviously everybody looks at and has deep concerns
of how in careens out of control. I think that is most people's
concerns here. But I want to look at it as a narrower legal
issue. And, Mr. Staver, if I could ask you along--
Mr. Lloyd. Senator, with all respect, with all the excited
utterances, I did want to talk about the Mojave Desert case.
Chairman Brownback. We will hit that at another point,
maybe. I want to get narrowed in on some of these.
Mr. Staver, you have litigated these sorts of cases before.
I hear the claim that this is going to hurt bringing of these
sorts of cases or it is going to limit this constitutional
right by removing the legal fees as provided for in Section
1988. Why is injunctive relief, declaratory relief insufficient
to bring these sort of cases? And I am going to direct the same
question towards you on that, Mr. Stern. I believe you raised
that issue. But why is this insufficient, injunctive or
declaratory relief?
Mr. Staver. Mr. Chairman, I think that is a good question.
It is not insufficient. It is totally sufficient for what is
needed to remedy any constitutional violation under the
Establishment Clause. Professor Rogers and Mr. Stern have
raised issues, and they have mentioned rhetoric and putting
aside the rhetoric. I think when you really do that, you look
at this in history and the historical context and what is
really being addressed here and what is not.
From 1976 to the present is the only time in American
history that we had Section 1988. That changed the American
rule in allowing attorney's fees and damages in these kinds of
cases. So for two centuries of our history, we haven't followed
this fee-shifting provision. In fact, if you look back, when we
look at the constitutional Establishment Clause cases that came
from the 1940s and the 1960s, we did not have Section 1983. The
Bible reading and prayer in school were litigated prior to
Section 1983.
When 1976 came and the 1988 statute was amended to allow--
and I said 1983. I should correct that to be 1988. When 1976
came and Section 1988 was amended to allow this fee-shifting
statute, it was done coming out of the idea of the civil rights
movement, and one of the things they wanted to do is to finance
ill-financed plaintiffs, people who were discriminated against
primarily because of their race or their gender, people who
lost their jobs--
Chairman Brownback. Primarily civil rights cases.
Mr. Staver. Exactly. They lost their jobs because of the
color of their skin or their gender. Obviously, they did not
have the money to go out and hire an attorney to litigate that
basic constitutional right, for which we passed three separate
constitutional amendments to protect, and passed a number of
strong pieces of legislation in the 1960s.
But now the time has changed as it relates to this area in
two specific respects. Number one, the rise of public interest
law firms. There will not be one less suit brought that is
legitimate if you take away this attorney-fee-shifting statute
because you still have the ACLU, you still have other
organizations, that are very well-financed public interest law
firms that will bring the cases irrespective of whether there
is a fee-shifting statute.
One of the things that it will prohibit, however, is the
intimidation threat that a Government official, who is simply
trying to do his or her job, that is confused, as all of us
are--and anyone who says they are not is either disingenuous,
does not litigate, does not teach, or is dishonest in
addressing what the Establishment Clause jurisdiction is today.
But a Government official who is simply trying to do his or her
job gets the threat of an attorney's fee letter from the ACLU
will back down from their activity, even though it is
constitutional if litigated all the way up to the Supreme
Court, simply because of the threat of attorney's fees. So it
will not stop the legitimate cases. Injunctive relief and
declaratory relief are absolutely essential, but it will take
away this attorney's fee provision that I do not believe is
appropriate under these circumstances in the Establishment
Clause cases.
Chairman Brownback. Mr. Stern, he says it far better than
I, but that is my experience as a small town lawyer, that you
get these sort of threats and the city council just says, ``We
do not have enough money to deal with this.''
You know, as a lawyer, I get my back up and I say, well,
no, let's go fight it. Well, then they say, ``How much is it
going to cost for you and how much is it going to cost for
those other guys?'' And it quickly adds up, and they say, ``We
are just not interested in this.'' It just happens all the
time.
I am wondering why the injunctive relief is not--
injunctive and declaratory relief is not sufficient to keep
these cases coming so people's legitimate rights are protected.
Mr. Stern. I want to go back to what I said. We need to
keep clear in our heads that there is a difference between the
remedies, whether monetary damages ought to be available, and
the attorney's fees issue.
Take the Hansen case in Ann Arbor. It is a one-time, once-
a-year diversity program. What was challenged was a particular
configuration of a particular panel. By the time the case gets
to court and can be litigated, there is more injunctive relief
available. The issue is moot. The Diversity Day has occurred.
There is no showing it is going to happen next year. You cannot
get an injunction.
You cannot get a declaratory judgment because in O'Shea v.
Littleton, the Supreme Court said you cannot get a declaratory
judgment for a completed constitutional violation for which
there is no other remedy available.
So in that sort of complete violation, in the case in
Delaware--
Chairman Brownback. Let me get you to a sharper point. So
you are saying in that type of case, the only tool that is of
any use is the--
Mr. Stern. Is damages or nominal damages.
Chairman Brownback. Is attorney's fees.
Mr. Stern. No. You cannot even get a declaration that the
act was unconstitutional unless you are able to seek either
real damages or nominal damages. If you have a complete
constitutional violation for which you cannot--you can't get an
injunction because there is no likelihood of it recurring, the
only way you are going to get a court to declare that the act
was unconstitutional and to settle issues--because there are
lots of issues that need to be settled--is by allowing nominal
damages. That is what happened in the Hansen case. They sought
and were awarded nominal damages. If there had been no nominal
damages available, we would not have had a decision that says
you cannot exclude conservative pastors from a panel on
homosexuality.
Chairman Brownback. Let me turn the question this way. You
are an accomplished lawyer, very accomplished individual and
contributed a lot to this country and I appreciate it. Do you
deny that this goes on, that attorney's fees are used in these
cases to threaten city councils?
Mr. Stern. Certainly. There is no question it goes on. It
goes on not only in the Establishment Clause area; it goes on
in the free speech area.
Let's play out a case in which I was involved. A school
board as a defense to plaintiffs urged that the Establishment
Clause required it to act as it did. If the Establishment
Clause is not clear when plaintiffs invoke it, it is not clear
when defendants invoke it. The case involved whether a teacher
could teach an after-school Bible Club in her own elementary
school. The school district said you can teach in some other
school, but not in your own building, because we think that
second and third graders will not be able to tell the
difference between you before 3 o'clock and after 3 o'clock. We
think it said, if we were to allow you to do that, that would
be an Establishment Clause violation.
The teacher challenged the school board's decision raising
free speech and free exercise claims. She won that lawsuit in
the Eighth Circuit. She is entitled to attorney's fees under
this bill.
I told the school board--and I consulted with Professor
Douglas Laycock, a well-known expert in the field. We both
thought that the decision of the Eighth Circuit was flat-out
wrong. We were prepared, pro bono, to carry the case to the
Supreme Court. The school board voted not to carry the case to
the Supreme Court because they would have to pay plaintiffs
attorney's fees if we were unsuccessful.
Let's play that out the next year. Ms. Wigg is in her
classroom before 3 o'clock and says to the kids, ``By the way,
kids, you know, I have a Bible study class right after school,
and we have a good time.'' Parent brings a challenge saying
that amounts to coercion. They allege that Ms. Wigg's speech
constituted an establishment of religion. Those plaintiffs
cannot get attorney's fees even if they win, even though it is
the same facts, the same uncertainty, the same unclarity in the
law.
So if there is unclarity--and I can tell you, because I saw
the letters in the 1980's from the head of the American Center
for Law and Justice when equal access for student clubs was
very much up in the air, writing letters to school districts
saying if you do not do what I want, I am going to sue--or I
don't remember if it was with ACLJ or another group at the
time--and we will get attorney's fees.
So there is lots of this threatening stuff going on on both
sides.
Chairman Brownback. And that is my exact point there. So
why should you--
Mr. Stern. So this does not--
Chairman Brownback. In American jurisprudence, we have not
had--it does not seem to me that we have had the use of
attorney's fees being a threatening tool. It is really that
there should be a relief granted--
Mr. Stern. Fine. If you want to take--as I said in my
testimony--
Chairman Brownback.--then attorney's fees being the club
and--
Mr. Stern. Sure.
Chairman Brownback. You acknowledge, as others do, that
that is the club that is being used here.
Mr. Stern. Right. And if you want--and there are ways--
Chairman Brownback. If you can help us draft it better--
Mr. Stern. I have only done it--I actually only threatened
once, when a school superintendent ran for election against our
lawsuit, so I figured it was fair enough to hit him with
something back.
But my problem is not that there is a club. I grant you
that is a club. In some measure, that is a necessary club
because, otherwise, you get people who think there is cost-free
political advantage in violating known constitutal. Roy Moore
was running for Governor on the back of his Ten Commandments
display. No serious scholar thought that he was going to get
away with a 5-ton Ten Commandments in the middle of Alabama
Supreme Court building. The Supreme Court, right before it took
the other two Ten Commandments cases, pointedly turned that one
down.
But we do not have to go there. My point is simply this: If
there is a coercive effect--and there is--and if local
government sometimes fail to assert plausible defenses because
they are afraid of attorney's fees, it is not only when I,
representing plaintiffs, threaten to bring an Establishment
Clause case and seek attorney's fees. There are cases in which
people are seeking access to the public schools, the school
board is defending on the Establishment Clause. It is the same
uncertainty and it is the same club. So if you are going to
deal with that problem, deal with the problem of the club as a
whole, but in ways that are neutral to the merits.
Chairman Brownback. That is my point. That is the point of
this, is to take the club--
Mr. Stern. No, but this bill does--it only solves--it takes
away the club for me and it leaves the club in Ms. Woodruff's
hands.
Chairman Brownback. It does not leave it in her hands.
Mr. Stern. Sure it does. She brings a free speech and free
exercise claim.
Chairman Brownback. She cannot claim attorney's fees in
this. We take the attorney's fees--we are saying that this is
going to be the American jurisprudence system that--
Mr. Stern. No, no, because it does not say--
Chairman Brownback. --the loser pays.
Mr. Stern. When Ms. Woodruff sues the school district
saying, ``I want access to the building,'' she is claiming
under the Free Speech and Free Exercise Clause. If she wins,
she is entitled to attorney's fees. Since the school board does
not know if she is going to win or their Establishment Clause
defense is going to prevail, you have got exactly the club
problem you describe. They are afraid that if she wins, they
will have to pay their own attorney and her attorney, because
their defense is the Establishment Clause.
If you flip the facts around and the plaintiff is invoking
the Establishment Clause, in this bill there is no club.
Chairman Brownback. Would you support the bill if the club
is taken from both sides then to your satisfaction?
Mr. Stern. That would leave a level playing field.
Chairman Brownback. Would you support that sort of--
Mr. Stern. I would have to think about it, but I think I
could.
Chairman Brownback. Ms. Woodruff?
Ms. Woodruff. I just want to respond. I think the club that
is left in our hands in those equal access cases, the free
speech cases, is, in fact, the Freedom of Speech and the Free
Exercise Clause in the First Amendment. It is a different club.
The only reason that we have engaged in an educational campaign
to school districts, superintendents, city councils, is in
specific response to the intimidation campaign of groups like
the ACLU. You cannot deny that there is a qualitative
difference between the affirmative civil rights for which 1988
was originally intended and Establishment Clause violations.
There is a qualitative difference in the injury that is
suffered in each of those, and that is what makes singling out
the Establishment Clause legitimate.
Ms. Rogers. Senator Brownback, could I--
Chairman Brownback. Please, Ms. Rogers.
Ms. Rogers. Thank you so much. And let me thank you for
your conducting this in such an open and probing manner. I
really appreciate the way that you are digging into these
issues and letting us all contribute to the conversation.
There are a couple of things I want to get to really
quickly. Mr. Lloyd talked about--and I think it is in his
testimony--if the religious symbol is unconstitutional under
the Establishment Clause because it is on Federal ground, as
the ACLU otherwise insists, no person can choose to commit an
unconstitutional act. It must be unconstitutional, I assume he
is saying, if it is on the gravestone where the family has
chosen it as it is when the Government erects a cross like
Mount Soledad or some other case. And I would submit those
cases are very different.
Our constitutional rule is not that religious symbols
cannot be in the public square. It is, ``To whom is the
religious symbol attributable or the religious expression
attributable? '' And the Court has said there is a crucial
difference between Government speech endorsing religion, which
the Establishment Clause forbids, and private speech endorsing
religion, which the Free Exercise and Free Speech Clauses
protect.
Now, that does not mean the place determines. It is who is
doing the speaking. To whom is the speech attributable? The
United States is not France. France in some respect cleanses
the public schools of religious expression. We do not do that.
We ask, ``Is the religious attributable to an individual or is
it attributable to the Government? '' And that is the dividing
line, and that is where the ACLU is drawing the line in the
case involving the grave markers where they are saying when the
religious symbol is clearly attributable to the family on the
gravestone, that is protected by the First Amendment. They take
a different position when it has to do with the Government
erecting a Government-sponsored cross in a cemetery and then
doing it that way.
So that is a very important distinction. It goes to the
core of constitutional law, and we ought to recognize that. And
the ACLU, I believe, on the House side wrote a letter saying
that they are not threatening the markers on these gravestones.
So that is very important.
Then I will say that the club is not different than the
ones Ms. Woodruff is talking about. It is pressure coming from
different sides about different issues, but it is not different
qualitatively. It is pressure to enforce constitutional rights.
Chairman Brownback. Ms. Rogers, could I address you on that
point? Mr. Stern was kind enough to say obviously there is a
club here and it is used.
Ms. Rogers. Right.
Chairman Brownback. Would you agree with that, that these
attorney's fees is a club and it is used often across the
country?
Ms. Rogers. Yes, I mean, it is pressure brought from
different sides on different issues, and it happens.
Chairman Brownback. And I would think you--I know you are
teaching at the Divinity School, but you are a trained lawyer
and you have worked these cases, too.
Ms. Rogers. Well, I would say I am not a litigator. I am an
attorney.
Chairman Brownback. Okay. We do not usually set our system
up such that the attorney's fees are what you use for a club to
get somebody to do something, because normally our system--the
American system of legal decisions is you pay your legal fees,
I pay my legal fees. So usually this is not a club in the
American jurisprudence system.
Ms. Rogers. Well, each pays his own is the typical rule,
but, of course, it is different under 1988.
Chairman Brownback. Yes. My point is here--and that is the
only point with this that we are trying to get at, and if we
have inartfully drafted this, submit suggestions to us, because
I want to look at it and I want to consider what you have.
Ms. Rogers. Thank you.
Chairman Brownback. In an area where we have got now-- we
are at 40 years plus of litigating and trying to decide where
we are on the Establishment Clause and what it means. This has
been going on for some period of time, and this has been up and
down to the Court a lot of times, and it is a confused--I think
most people would say there is some confusion in this area of
the law. And so if you are on that local level, the deciding
factor should not be the club of attorney's fees, and that is
all we are trying to get at here. And if you agree with that
point, I would appreciate you telling us how we ought to
redraft this so that we make it balanced and the attorney's
fees is not the club, that it is actually somebody wanting to
change this.
Ms. Rogers. Just two quick comments on that. What jumps out
at you in the bill is the way that the Establishment Clause is
selected out. Now, I am not saying what other arguments I would
make about 1988 generally, but when you single out the
Establishment Clause, it really raises questions. So I
appreciate your openness to asking about, well, how can I be
not selective, because this bill is quite selective. And that
raises questions.
Now, I would say there are areas of confusion with regard
to the Establishment Clause. There are areas of great clarity
and there are areas of confusion. But the Establishment Clause
is not uniquely confused. You can ask law professors all across
the country, and I have quotes in my testimony about scads of
areas that are difficult and very challenging. The
Establishment Clause is not unique in this respect. And so when
you single it out, that tends to add more to the questions that
are being raised here.
Mr. Staver. Mr. Chairman?
Chairman Brownback. Mr. Staver, please.
Mr. Staver. Section 1988 is never applied to the Federal
Government. The Federal Government does not have the fee-
shifting statute under Section 1988. No one would argue that
the Federal Government has run roughshod over constitutional
rights regarding the Establishment Clause, simply because there
is no threat of an attorney's fee.
Chairman Brownback. That is a good point.
Mr. Staver. You do not have damages in the Federal claims.
Michael Newdow was not hesitant in any respect in bringing his
challenge against the Pledge of Allegiance, and one of the
entities he sued was at one time Congress. He would do that and
the ACLU would do that and anyone else would do that if they
felt an Establishment Clause violation occurred. In fact, the
ACLU in Nebraska several years ago, a local affiliate of the
ACLU brought suit against ``In God We Trust.'' The fact is
there is no rampant example within the Federal Government of
running roughshod over constitutional rights in Establishment
Clause cases simply because we have never from the history of
our founding to the present had a fee-shifting statute. All
this particular statute does is put the State and local
governments in the exact same position that the Federal
Government is in.
A couple of these things that I would ask of my colleagues
here. I think Mr. Stern has tried to argue a difference between
damages and fees, on the one hand, saying that since this does
not have a damage provision, then in this illustration that he
mentioned with regard to the Hansen case and the diversity
program, then he would not be able to file suit, or if he did
it would be mooted because it would be over and there would be
no nominal damage.
Well, first, there are exceptions to the mootness doctrine.
There are a number of those kinds of exceptions. One of those
is capable of repetition yet evading review.
Secondly, the declaratory judgment is, as the Supreme Court
said, a much lesser or less harsh remedy and, therefore, you
should--in places where injunctive relief were not appropriate,
you could still declare the constitutional rights.
But, finally, I would throw out to my colleagues, would
they be different, would they support this bill if this bill
were to be amended to say that you could have no more than a
nominal damage claim? And a nominal damage claim is $1 to $10.
Would they all that? That would address their issue of
mootness, and then we are back to the square one issue why we
are here. Why should we have attorney's fees as a club, which
they have acknowledged it is, in a confusing area of law, which
they acknowledge it to be, simply as a club? I don't think that
that is an appropriate way to use attorney's fees. That is not
the way 1988 was designed.
Mr. Stern. Can I respond to that, Senator?
Chairman Brownback. I am going to go back to Mr. Lloyd, and
then I will turn to you, Mr. Stern.
Mr. Lloyd. Thank you, Senator, and I want to reference
specifically the comments made by Ms. Rogers and veterans'
memorials. She said the difference is that individuals can
choose, family members can choose what they want, and that
makes it constitutionally different. Senator, the land is
Federal land. No private citizen has a right to say, ``I want
to erect this thing on Federal land.'' But I think she is
unaware of or ignoring the fact when she testifies if the
Government puts it up, that is different. There are 9,000
crosses at Normandy Beach--9,000 crosses, raises crosses,
raised Stars of David, put up by the Government, our
Government, maintained by France but it is considered American
land. We put those up as a Nation to honor those who gave their
lives. Those were not family decisions.
The other thing, the reference that the ACLU sent you a
letter and said they will not sue. Who can put any credence on
that? Maybe today they will not. Maybe if you pass your bill or
your bill gets defeated, maybe they will.
I started to talk about the Mojave Desert case before I got
so rudely interrupted. In Mojave Desert, who would have dreamed
that the ACLU or anyone else would sue a World War I memorial
11 miles off the road in the desert? It is two tubes strapped
together on a rock outcrop in 1934 by veterans to honor
veterans of World War I. Here, during the Clinton
administration in 1994 or 1995, it is incorporated in the
Mojave Desert Preserve. At that time the Assistant
Superintendent was a man named Frank Buono. He does not say a
word. He does not say you cannot do this. He does not complain
and say no, no. He is the Assistant Superintendent. He has got
all the power in the world to stop it. He does not say a word.
The ACLU sues. It is out in the middle of the desert, no
people, no press, no nothing. It is a stealth lawsuit. Nobody
knows about it until the judge says destroy it and gives them
$63,000 to destroy that veterans' memorial.
You have to drive to it, Senator, to be offended by it. You
better take water or you might not make it back. That is how
far they would go.
So I put no credence whatsoever that we have a guarantee.
Oh, they wrote a letter, ``We won't do it.'' What stops the
other people who hate America from doing it? And then a very
crucial thing in this discussion, all we are talking about here
is money for attorneys. Money for attorneys. These statutes
were passed to benefit poor people. Who is the plaintiff in the
Van Orden case out of Texas? A homeless lawyer. That ought to
bring a tear to any American eye.
I do not think that was passed to benefit people like that.
Who is the plaintiff who would destroy the Mojave Desert
Veterans' Memorial? Frank Buono--the same guy who was the
Assistant Superintendent. He got his pension. He moved to
Oregon, and he sues in California. And what is his theory,
Senator? What is the injury? He might come back to visit and he
might drive on that road and he might see the cross, and if he
sees it, he would be offended by it.
In his testimony, Senator, he says he has no religious
objection. He says he is Roman Catholic. He just objects on
constitutional grounds.
Those kinds of suits may not result in fees under Rule 11.
They are tearing it down. But look at the dimension that it
puts us in. We cannot even go in as the American Legion to
fight a case like that because we might end up having to pay
that $63,000. And I think it is critical to understand--and
every Senator should--we are not only talking about attorney
fees. There are no attorney fees. I was an ACLU attorney. I
know to a certainty under the rules of the ACLU every case is
done by staff or a volunteer pro bono attorney, who are
forbidden to receive fees. The clients have no fees. The ACLU
has no fees. And this is pure profit.
In the Dover case that counsel represented, $2 million was
awarded by a court in the Dover intelligent design case, even
though the pro bono firm representing the ACLU said in court
and publicly announced they were waiving all fees. The ACLU had
no attorney fees.
So a benevolently developed statute to protect poor people
is being used for pure profit, because there are no fees. And
the other dimension to your fee provisions as they exist,
Senator, is those fees are supposed to belong to the clients,
not the attorneys. And there is case after case after case in
which municipalities and other Government entities will settle
cases--maybe you are familiar with this--and they will offer a
settlement that says this include attorney fees, and that puts
the attorney and the client in an adverse position, and the
client then can say, ``I will take that,'' even though the
attorney wants a lot more money. Every other statute that I
know of, Senator, says ``attorney fees incurred,'' except this
one. In this area, we will sue you, we will demand attorney
fees, and we will get market rate even though we have none. And
in California, it is $350 an hour, and the municipalities
cannot pay that. It is a club, and I thank you for trying to
remove it.
Chairman Brownback. Well, I think this is trying to
establish some fairness of the debate on the Establishment
Clause in this country, which is a very long and deep one. We
do it based upon what is actually there and not some club that
I think seems to me to be an inappropriate tool to be able to
use.
I want to wrap this hearing up. Can I give you a minute? We
are going to be called over for a vote, Mr. Stern, and I want
to be fair with your--
Mr. Stern. The ACLU actually once brought a lawsuit
challenging a cross as a war memorial. The county's defense
was, if you allow them to take down the monument, they will
take down the crosses and the Stars of David over individual
graves. The ACLU said, ``No, we are not going to do that.'' So
it is not a question of speculation. It is not merely relying
on a letter to the House committee. They have actually
litigated in that fashion.
Secondly, in my earier career, I spent a lot of time on
civil rights. I can tell you that municipality after
municipality changed their civil service rules because the
extent of Title VII was unclear. They were afraid of paying
attorney's fees to organizations that were litigating on behalf
of minorities. There were settlements that were coerced in
exactly the same way that has been described. This is a problem
of an attorney's fee award. There are advantages. But the
disadvantages are the ones you talked about.
Finally, Mr. Staver talks about nominal damages only. In
the run of cases, that is probably an attractive idea. If you
think, however, of the chaplains' case here in D.C. where
people are talking about thousands of dollars of salary and
pension, you are cutting them off. In the Municipal Army case,
which has got a new name, where there were real solicitations
lost. If you limit people to nominal damages in Establishment
Clause cases, you are harming those plaintiffs.
And, finally, I come back to Wynne, a case brought by a
private attorney, not by the ACLU, who said the only reason he
could do it was because he hoped he would get attorney's fees.
That sort of case, which is a clear violation of the
Constitution, no uncertainty there whatsoever, would be cut off
this way. If you are going to do it, at least do it so that it
is across the board. When an Establishment Clause issue is
fairly in the case, nobody gets attorney's fees.
Ms. Rogers. Mr. Chairman?
Chairman Brownback. And I hope you will work with us then
in looking at how you would suggest that to be written so that
we could have a situation where you actually had the cases
discussed and decided and local communities making decisions
based on merit and not on the threat of attorney's fees. That
is what we are trying to get at with this particular bill.
It would be my hope at the end of the day we might get
cross-aisle support that a lot of people would look at that and
say, you know, this is such a tough, contentious area of law,
neither side should have attorney's fees clubs, and this should
be litigated by the courts. And let's have it dealt with there,
but let's not throw it out at the very earliest stages just
because a community is scared of the attorney's fees. On such
an important, key public policy debate and confused area of the
law, that seems to me to just be fundamentally fair.
We will keep the record open for 7 days--Ms. Rogers, if you
have just one minute, I will take a minute; otherwise, I need
to--
Ms. Rogers. Yes, sure. Thank you so much. I just want to
underscore that I think the award of attorney's fees can be
helpful in many situations, for example, on RLUIPA, the
Religious Land Use and Institutionalized Persons Act, the Free
Exercise Act that you worked on in 2000, that allows reasonable
attorney fees to be awarded to prevailing parties. So we need
to be very careful about this. I think we need to be very
evenhanded at least, and also very careful.
Chairman Brownback. I hope you can help us with that in
that process, too.
The record will remain open 7 days. I ask unanimous consent
that a series of letters supporting the bill be entered into
the record, and they will be.
I want to thank the panelists and those in attendance. The
hearing is adjourned.
[Whereupon, at 4:02 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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