<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:28385.wais]
PUBLIC EXPRESSION OF RELIGION ACT OF 2005
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
H.R. 2679
__________
JUNE 22, 2006
__________
Serial No. 109-118
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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WASHINGTON : 2006
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Kimberly Betz, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
JUNE 22, 2006
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 2
The Honorable John N. Hostettler, a Representative in Congress
from the State of Indiana, and Member, Subcommittee on the
Constitution................................................... 4
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Member, Subcommittee on the
Constitution................................................... 7
WITNESSES
Mr. Rees Lloyd, Commander, District 21, The American Legion
Oral Testimony................................................. 10
Prepared Statement............................................. 12
Mr. Mathew D. Staver, Founder and Chairman, Liberty Counsel,
Interim Dean, Liberty University School of Law
Oral Testimony................................................. 32
Prepared Statement............................................. 35
Mr. Marc D. Stern, General Counsel, American Jewish Congress
Oral Testimony................................................. 72
Prepared Statement............................................. 74
Professor Patrick Garry, Associate Professor of Law, University
of South Dakota School of Law
Oral Testimony................................................. 97
Prepared Statement............................................. 99
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Member, Subcommittee on the Constitution....................... 180
Additional Information submitted by Mathew D. Staver, Founder and
Chairman, Liberty Counsel, Interim Dean, Liberty University
School of Law.................................................. 182
Additional Information submitted by Marc D. Stern, General
Counsel, American Jewish Congress.............................. 183
Prepared Statement of the Alliance Defense Fund concerning H.R.
2679, the ``Public Expression of Religion Act of 2005''........ 184
Prepared Statement of Steven W. Fitschen, President, The National
Legal Foundation............................................... 198
Letters for the hearing recorded inserted by the Honorable Robert
C. Scott:
Letter from Ruth Flower, Legislative Director, Friends
Committee on National Legislation, to The Honorable Steve
Chabot, dated June 19, 2006................................ 225
Letter from Wade Henderson, Executive Director, and Nancy
Zirkin, Deputy Director, Leadership Conference on Civil
Rights, to Members of the Judiciary Committee, dated June
21, 2006................................................... 226
Letter from Caroline Fredrickson, Director, American Civil
Liberties Union dated June 22, 2006........................ 227
Letter from the American Civil Liberties Union, et. al.,
dated June 22, 2006........................................ 230
Letter from the Reverend Barry W. Lynn, Executive Director,
Americans United for Separation of Church and State, to
Chairman Chabot and Ranking Member Nadler, dated June 22,
2006....................................................... 232
PUBLIC EXPRESSION OF
RELIGION ACT OF 2005
----------
THURSDAY, JUNE 22, 2006
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:03 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chairman of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order.
This is the Judiciary Committee's Subcommittee on the
Constitution. I am Steve Chabot, the Chairman. I want to thank
everyone for being here this morning.
The House Constitution Subcommittee convenes today to
consider H.R. 2679, the Public Expression of Religion Act,
commonly known as PERA, which was introduced by the
distinguished gentleman from Indiana, Congressman John
Hostettler, who is with us here this morning.
PERA amends 42 U.S.C. Sections 1983 and 1988 to prevent the
use of the legal system in a manner that extorts money from
State and local governments and inhibits their constitutional
actions.
Federal statute 42 U.S.C. 1983 is the statute that allows
people to sue State and local governments for alleged
constitutional violations of their individual rights. Federal
statute 42 U.S.C. 1988 is the Federal fee-shifting statute that
allows prevailing plaintiffs in lawsuits filed under 1983 to be
awarded attorney's fees from the defendant. And the defendant
in that case would generally be a governmental entity.
Consequently, under 42 U.S.C. 1983, parties can sue State
and local governments claiming their individual rights were
violated and demand attorney's fees in the case under 42 U.S.C.
1988 if they prevail at any stage of judicial review.
Because of these laws, the threat of litigation against
State and local officials alleging that they have violated the
Establishment Clause often forces States and localities to cave
to demands to remove even the smallest religious references on
public property. Most localities do not have the money to pay
for not only their own, but also the plaintiff's, attorney's
fees if they receive an adverse judgment. And Establishment
Clause case law is oftentimes so confusing and the outcome in
these cases so unpredictable that it is virtually impossible
for a locality to foresee the outcome in any given case.
PERA addresses this problem by amending 42 U.S.C. 1983 to
permit only injunctive relief in cases alleging violations of
the Establishment Clause. PERA also amends 42 U.S.C. 1988 to
disallow the award of attorney's fees to prevailing parties in
cases alleging violations of the Establishment Clause.
PERA will level the playing field against groups such as
the ACLU who have won millions of dollars in attorney's fees
while extorting State and local governments into suppressing
the religious speech and free exercise of religion of private
individuals, for example, tearing down veterans' memorials that
happen to have religious symbols on them, removing the Ten
Commandments from public buildings, booting the Boy Scouts off
public property, or blotting out crosses from official county
seals. This happened in California.
Again, I would like to thank our witnesses for being here
today. And we will get to you very soon.
And that is the balance of my statement. I would now yield
to the gentleman from New York, Mr. Nadler, for the purpose of
making an opening statement.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, I want to join you in welcoming our witnesses
today.
I think we can agree that the topic of today's hearing is
of monumental importance, albeit for differing reasons. The
good news is that this legislation is not yet another attempt
at stripping the Federal courts of the jurisdiction to hear
cases if some in Congress think they won't like the answer the
Federal courts might give.
The bad news is that today for the first time since the
enactment of Section 1983 in 1871 we are considering
legislation that would single out a particular group of
individuals whose first amendment rights have been violated by
the Federal Government or by the government and deny them
remedies available to everyone else under Section 1983. These
are people whose rights have been violated by the Government or
by someone acting under color of law and who have been able to
prove that in a court of law. By denying them the normal relief
of monetary damages and the ability to petition for attorney's
fees we are not just denying them their day in court, we are
telling Government officials everywhere that Congress thinks it
is okay if they violate people's religious liberty.
Because remember, anyone who loses a case--when the
Government loses a case here, the court will have found that
they violated someone's religious liberty. It is especially
galling after we have just completed most of the work on the
reauthorization of the Voting Rights Act, although I must say
it seems that some of the majority party aren't too happy with
that, in which we enhanced the attorney's fees, enhanced the
attorney's fees provision in that bill that this Committee
reported by adding a right to be awarded the cost of expert
witnesses.
As this Committee stated in its report, ``The Committee
received substantial testimony indicating that much of the
burden associated with either proving or defending a Section 2
vote dilution claim is established by information that only an
expert can prepare. In harmonizing the Voting Rights Act of
1965 with other Federal civil rights laws, the Committee also
seeks to ensure that those minority voters who have been
victimized by continued acts of discrimination are made
whole.''
I would warn my colleagues that starting down this path of
denying proven victims of discrimination by the Government--
that is what we are talking about, Section 1983 where someone
acting under color of law, a Government official, violated
someone's constitutional rights, in this case, someone's
constitutional rights under the first amendment liberty
provisions--starting down this path will only lead to depriving
other unpopular groups of their civil rights remedies.
It wasn't so long ago that attacks on unelected judges and
ACLU lawyers stirring up trouble was the common language of the
militant segregationists, those who said that if it weren't for
those unelected judges and those ACLU lawyers and those
carpetbaggers coming down here, no one would be questioning our
Jim Crow practices that our local Black people are so happy
with.
It is distressing and sadly ironic that today the same
language is being used to gut the nation's oldest and most
durable civil rights law. It is all reminiscent of Governor
Wallace's infamous 1963 inaugural speech in which he said,
``From this day, from this hour, from this minute we give the
word of a race of honor that we will tolerate their boot in our
face no longer. And let those certain judges put that in their
opium pipes of power and smoke it for what it is worth.'' I
think the governor would feel right at home on this Committee
today, as would some of the majority witnesses.
Or the notorious southern manifesto signed by Members of
both houses of this Congress in defiance of the Supreme Court's
school desegregation decisions: ``We regard the decisions of
the Supreme Court in the school case as a clear abuse of
judicial power. It climaxes a trend in the Federal judiciary
undertaking to legislate in derogation of the authority of
Congress and to encroach upon the reserved rights of the States
and of the people.''
Does this sound familiar? This is the rhetoric we are
hearing on this bill. It is the rhetoric we are hearing on the
other court-stripping legislation.
I raise this not to suggest that any Members of this house
are segregationists. Far from it. I do recall the overheated
rhetoric of a half-century ago to urge caution. Unpopular
minorities--and those are the people in these cases, people
defending the religious liberty of unpopular minorities and
decisions defending the rights of unpopular minorities against
the will of the majority have always inflamed passions. People
have always questioned our system of checks and balances and
especially the role of the independent judiciary.
Recourse to an independent judiciary is the bulwark of our
liberties. We recognize--and remember, if you look at the 1936
Stalinist Constitution of the Soviet Union, it looked
wonderful, right to free expression, right to freedom of
speech, freedom of the press, freedom of religious and anti-
religious propaganda, as they quaintly put it. The only problem
was there was no real recourse. There was no way to enforce
those rights.
If you sought to enforce the rights, you got shot. In this
country, you go to court until now. If this bill passes or the
other court-stripping bills, we limit the right of people to go
to court to defend their rights.
We recognize people's liberties. We recognize that the
independent judiciary is the bulwark of our liberties by
allowing people to go to court and force the Government to
respect their rights.
We recognize this by allowing them to receive damages where
the Government has done them. We recognize this by ensuring
just as we have done with the Voting Rights Act that people who
can prove their rights have been violated can get attorney's
fees paid so that people with valid claims will be able to go
to court and not be damaged--will be able to go to court,
number one and number two, not be damaged by huge attorney's
fees.
I would remind my friends--and let me say the Chairman
talks about localities being hurt by attorney's fees. They are
only getting hurt by attorney's fees if they are judged wrong
by the courts, if they damaged individual rights of somebody.
And it is better that the Government be damaged by attorney's
fees when the Government has violated someone's rights than
that the victim of the deprivation of those rights, the victim
of unconstitutional practices be damaged.
I would remind my friends that this legislation is not
limited to religious symbols in public places. This legislation
applies to any violation of the Establishment Clause. This
would include forced prayer, not a voluntary prayer, but forced
prayer. And if Government forcing your child to say a prayer of
another faith is not the establishment of religion then the
phrase has no meaning.
It is an election year. The months leading up to elections
have long been known as the silly season. We all understand
that. But get an earmark for a bridge or something. Leave the
first amendment and our civil rights laws out of it.
Thank you. I yield back.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Indiana, Mr. Hostettler, the chief
proponent of the bill, is recognized for the purpose of making
an opening statement.
Mr. Hostettler. I thank the Chairman. And I want to thank
you for calling this important hearing today as the legislature
acts in our constitutionally independent capacity.
I first introduced the Public Expression of Religion Act in
the 105th Congress a few years before this election year after
I realized that the imposition of attorney's fees in these
kinds of cases were jeopardizing our constituents'
constitutional rights. An example of this was in 1993 when the
Indiana Civil Liberties Union, which is affiliated with the
American Civil Liberties Union, mailed a letter to all the
public educators in Indiana. And I think we have some excerpts
from that. And I will read.
First of all, the heading is from the Indiana Civil
Liberties Union. And the footing states that the Indiana Civil
Liberties Union is an affiliate of the American Civil Liberties
Union. The letter states, in part, this: ``Dear Educator, the
Indiana Civil Liberties Union has received several calls
recently from school boards throughout the State concerning
prayer at graduation. The Supreme Court has held clearly and
explicitly that prayer at graduation is `forbidden by the
Establishment Clause of the first amendment.' And there are no
exceptions or loopholes.''
``No member of the school board, no teacher, no principal,
no invited clergy and student speaker may take the podium and
invite the audience to pray. If you decide to hold graduation
prayer anyway as a matter of principle, four things will
probably happen. One, we will sue both the school corporation
and any individuals who approved or authorized graduation
prayers. Two, we will win. The Supreme Court has already
decided the issue.
``Three, you will pay your own and our attorney's fees, an
amount that could run as high as a quarter of a million
dollars. Your insurance will not cover it because it is a
deliberate violation of law. So the money will come directly
from property taxes.'' The letter ends this way, ironically
enough. ``The ICLU does not enjoy litigation. We and you have
better things to do with our time. You have better things to do
with your money.''
These threats to teachers who are highly unlikely to be
able to pay their own attorney's fees, let alone the exorbitant
attorney's fees of the ICLU, make it very likely that educators
would capitulate to the ICLU before even checking to make sure
the ICLU has their facts right, which in one particular case
they didn't. What makes this even more difficult for States and
localities is that the jurisprudence in Establishment Clause
cases is about as clear as mud. Different districts and even
the Supreme Court itself flip-flops on issues.
For instance, last year the Supreme Court handed down two
Ten Commandments decisions on the same day with a different
decision in each. In the Van Orden case, the court applied the
Marsh test of historical perspective to determine that the Ten
Commandments in a public venue was constitutional. While the
McCrary case used the Lemon test to determine that the Ten
Commandments in a public venue was unconstitutional, clear as
mud.
Our constituents who are being threatened with these
lawsuits know that even if they are right they will have to pay
their own attorney's fees to take the gamble that the court
will muddle through one more time the jurisprudential mess of
the Establishment Clause and come out on their side. If a court
chooses to use the Marsh test, they might win. If the court
chooses to use the Lemon test, they might lose. It is a toss-
up.
Unfortunately, many of our constituents do not have the
means or time to set aside a small fortune every year to defend
their constitutional rights against these liberal
organizations. Nor do they look kindly on the fact that their
constitutional rights have become subject to the whims,
literally, of unelected judges. But that issue is for another
hearing.
Regardless, many do not wish to roll the dice to have their
day in court. So they capitulate to these organizations and
their often questionable pronouncement of what is or is not
constitutional. The majority of the cases the ACLU and its
affiliates represent are facilitated by staff attorneys or
through pro bono work. So any attorney's fees awarded to them
is icing on the cake. It is a win-win situation for them right
now.
On the other hand, cities and States have to consider where
the attorney's fees would come from if they lose their case and
have to pay the ACLU. Where would the money come from, from the
taxpayers? States and localities have limited resources with
which to fight court battles. Thus, another reason that they
are capitulating before they even go to court.
This was the case recently with the Los Angeles County
seal. The ACLU threatened to sue Los Angeles County if they did
not remove the small cross from the county seal. The previous
seal is available along with the new seal.
The county was forced to choose between paying to change
the seal or paying to go to court and possibly pay exorbitant
attorney's fees to the ACLU. In the end, the L.A. county
commissioners in a three to two vote decided to ignore the will
of the people of Los Angeles County and pay to change the seal
instead of paying to go to court. They had been advised by
their attorneys that if they lost in court they would not only
have to change the seal, but they would additionally have to
pay attorney's fees.
Mr. Chairman, opposition to PERA is based in no small part
on the reality of the Establishment Clause jurisprudence as it
has come today. I mentioned the two cases earlier, and I point
out that as that case was without--Mr. Chairman, I ask for an
additional minute.
Mr. Chabot. Without objection, the gentleman is granted an
additional minute.
Mr. Hostettler. --that as that case was decided before the
most recent changes to the Supreme Court, namely the addition
of Chief Justice Roberts and Justice Alito that, in fact, in
one particular case the majority found that the public display
of the Ten Commandments was constitutional. Whereas in the
other case, Justice Breyer changed his vote, so to speak, and,
therefore, as a result of one person's vote, the case in
McCrary County was found to be unconstitutional.
But given the fact that Justice Alito has taken Sandra Day
O'Connor's place, whose position in both cases, in my humble
opinion, was on the wrong side, the simple fact of the matter
is we will not need Stephen Breyer's opinion in the future.
Mr. Chairman, I believe it is time to bring this extortion
to an end. The Public Expression of Religion Act would make
sure that these cases are tried on their merits and are not
merely used to extort money either via settlements or
attorney's fees. I yield back the balance of my time.
Mr. Chabot. I would ask unanimous consent that the
gentleman be given an additional minute and the gentleman would
yield to me for a moment.
Mr. Hostettler. Yes, I will yield to the gentleman.
Mr. Chabot. Could we have that pulled up again, what we had
there before that showed the seal of California? If I am not
mistaken, Mr. Hostettler, the one on the left there was the old
version. And it is pretty hard to see the cross on there, but
there is a statue of, I believe, a pagan goddess there in the
middle.
Mr. Hostettler. Yes.
Mr. Chabot. About at her arm level there, the cross to the
right there, that is the cross, I believe. It is pretty hard to
see on there.
Mr. Hostettler. Yes, sir.
Mr. Chabot. About, I think I understand it is maybe one-
sixth the size of the cow there at the bottom. The cross is
removed there on the right. But the pagan goddess on there,
that was okay, but the cross was removed?
Mr. Hostettler. It is my understanding that the pagan
goddess was not the subject of the ACLU's concern, that the
cross was the subject of the concern. L.A. County changed the
goddess in hopes of fending off a future potential lawsuit.
Mr. Chabot. Okay.
Mr. Hostettler. That is my understanding.
Mr. Chabot. Very good. Well, thank you very much, Mr.
Hostettler. The gentleman's time has expired.
The gentleman from Virginia is recognized for the purpose
of making an opening--if he would like to make an opening
statement, or not, either way.
Mr. Scott. Sure. Thank you, Mr. Chairman.
Mr. Chairman, it is just nice to see the representative of
the American Legion here because the last few years we have
seen our budget deteriorate about $9 trillion, and they have
been leaving veterans behind. As a matter of fact, just
recently we have slashed $6 billion from what is needed to meet
current veterans' health-care needs over the next 5 years.
We have prevented 1 million new veterans from enrolling in
V.A. medical care. We have doubled and tripled health-care fees
for 4 million military retirees under 65. More than 30,000 new
veterans are waiting for their first appointment at the V.A.,
double the number from a year ago. We have doubled the co-pays
for prescriptive drugs. We have opposed ending the tax on
military families pensions and concurrent receipts for disabled
veterans.
As a matter of fact, Mr. Chairman, when we talk about what
we are doing with our budget, this chart shows that all our
money is going to interest on the national debt with a little
bit going to education, a little bit going to homeland
security. And what falls off the truck, the veterans get.
But the veterans who happen to be multi-millionaires,
however, Mr. Chairman, we are going to help this afternoon
because those with States over $1 million we are going to
eliminate most of the estate tax on those multi-million dollar
estates. So when they die with millions of dollars--if they die
with millions of dollars, we will be right there to help them
out.
So, Mr. Chairman, I would hope that if we are going to be
patriotic that we would fulfill our responsibilities to our
veterans, not have a three-quarters of a trillion dollar tax
cut going only to dead multi-millionaires. And I say dead
multi-millionaires because there is no tax for the first $1
million of the estate under the former law. And now it is up to
about $2 million per person. That is $4 million per couple tax-
free. But we are going to make sure those with even more than
that get tax relief to the tune of about three-quarters of a
trillion dollars and fully phased in over 10 years.
Mr. Chairman, this particular bill--it is interesting if
you violate the Establishment Clause, no disincentive. But if
you violate the free speech part, free exercise part of the
same amendment, then I guess you can get attorney's fees. This
is a picking and choosing which constitutional rights we are
going to actually enforce. It is a real bad precedent. And I
would hope we would defeat the bill if it ever comes up.
I yield back.
Mr. Chabot. The gentleman yields back.
The Chair would just note that the purpose of this hearing
is on PERA, not necessarily veterans' benefits. But since the
gentleman from Virginia has mentioned the national debt, for
example, I would note that I came here in 1994. And prior to
that when the gentleman's party was in control for 40 years we
didn't have a balanced budget. And that is when much of the
debt was run up.
And at least for 4 or 5 of the years we had a balanced
budget since the current majority party is in control now. I
very much would like to get back to a balanced budget.
And let me just conclude with saying that when the
gentleman talks about the Federal inheritance tax or the death
tax, I would just say that philosophically I believe that when
the Government can take away 55 percent of what a person has
when they die I think that is confiscatory and immoral.
And I think that we ought not tax people when they die. And
this is money that they paid taxes on throughout their life.
But that is not the purpose of this hearing. But the gentleman
brings it up, so there are two sides to many things.
And I will--well, the gentleman from New York, unless the
gentleman from----
Mr. Nadler. I will just point out--I don't want to get into
an overlong discussion of economics at the moment, although it
does implicate the question of why this question is a veterans
issue when there are so many other issues that really affect
veterans as opposed to this nonsense.
But I would simply point out given what the Chairman said
that when Ronald Reagan took office, the national debt of the
United States accumulated from George Washington through Jimmy
Carter was $794 billion. Twelve years later when George Bush
the first left office, the national debt was $4.3 trillion.
There is almost quintupled. It started declining when Clinton
was in office. It is now greatly accelerating again.
And one other thing, the stuff I hear when our party was in
control of Congress, et cetera, et cetera, don't forget that
during that period that Republican presidents for most of the
time, not to mention a Republican Senate. This is fortunately
or unfortunately not a parliamentary system with a unicameral
legislature. So you can't just look at the House, as much as I
wish maybe we should.
I yield back.
Mr. Chabot. We could carry on this all day.
But the gentleman, Mr. Lloyd here, who I think is a
veteran, obviously will, I am sure, in his testimony discuss
why, in fact, there are veterans who care about this particular
issue.
I would like to introduce our witness panel at this, at
this time, if we could.
Our first witness today is Rees Lloyd. Mr. Lloyd is a long-
time civil and workers' rights attorney in California and a
Vietnam-era veteran of the U.S. Army who currently serves as
commander-elect of district 21 of the American Legion
Department of California, which embraces some 23 posts and over
6,000 members in Riverside, California.
Mr. Lloyd was once a staff attorney with the ACLU of
Southern California, which recognized him for ``pioneering
efforts in the area of workers' rights,'' and a pro bono
attorney for the late Cezar Chavez, founder and president of
the United Farm Workers of America.
Mr. Lloyd currently serves as special counsel for civil
rights to California department commander Wayne Parrish and as
Director of the Defense of Veterans Memorials project of the
Department of California.
Excuse me.
He was named American Legionnaire of the Year 2004-2005 for
the 40,000-member fifth area of the Department of California.
Mr. Lloyd has served as a principle spokesman for the American
Legion regarding Establishment Clause litigation and the Public
Expression of Religion Act.
And we welcome you here, Mr. Lloyd. And I am going to
introduce the rest of the panel here before we get to you.
Our second witness is Mathew Staver.
I am pronouncing that right, I assume?
Mr. Staver serves as the Interim Dean of Liberty University
School of Law and is the founder and chairman of Liberty
Council, a national non-profit litigation, education and policy
organization. He has written 10 books, most of which focus on
constitutional law and has published hundreds of articles on
constitutional law. He has presented many continuing legal
education credit courses to attorneys, law professors and
judges regarding the 42 U.S.C Sections 1983 and 1988.
Mr. Staver has argued in numerous State and Federal courts
across the country and has more than 110 published legal court
opinions. Mr. Staver has written numerous briefs before the
United States Supreme Court and has argued twice before the
high court as lead counsel.
We welcome you here, Mr. Staver.
Our third witness is Marc Stern, Assistant Executive
Director of the American Jewish Congress and co-director of its
commission on law and social action. Mr. Stern was consulted
widely by numerous Jewish and non-Jewish organizations
interested in maintaining the separation of church and State
and is interviewed often by the broadcast and print media.
Mr. Stern has been named one of the 40 to 50 most
influential leaders of the American-Jewish community. Mr. Stern
has taken the lead role in coalitions assembled by the
American-Jewish Congress, which have produced guidelines
utilized by the Clinton administration to clarify contentious
church-State issues in American society today. These guidelines
include Religion in the Public Schools, Religion in the Federal
Workplace and Public Schools and Religious Communities, a first
amendment Guide. Mr. Stern has written numerous briefs,
monographs, legislative testimony and articles on a variety of
civil rights and civil liberties issues.
And we welcome you here, Mr. Stern.
Our fourth and final witness will be Professor Patrick
Garry. Professor Garry is an associate professor of law at the
University of South Dakota School of Law and a visiting
professor at George Washington School of Law. Patrick Garry has
a J.D. with honors and Ph.D. in constitutional history from the
University of Minnesota.
Before joining the faculty at the University of South
Dakota School of Law, Professor Garry was awarded a research
fellowship at the Freedom Forum Media Studies Center and was a
visiting scholar at Columbia University Law School. He also
served as an adjunct professor at St. John's University and a
research project adviser at the Center for Media Law and Ethics
in the University of Minnesota.
Patrick Garry is a contributor to the Oxford Champion to
the United States Supreme Court and has published seven books.
His first book was included in the distinguished studies in
American legal and constitutional history. Professor Garry's
study of Justice Oliver Wendell Holmes appears in Great
Justices of the U.S. Supreme Court, and his scholarly articles
have been published in a variety of journals.
We very much welcome our entire panel here this morning.
Obviously we have a very distinguished panel.
And it is the practice of the Committee to swear in all
witnesses appearing before it. So if you would, if you would
all please stand and raise your right hand.
Do you swear that in the testimony you are about to give
you will tell the truth, the whole truth and nothing but the
truth, so help you, God?
All witnesses have indicated in the affirmative.
And, without objection, all Members will have 5 legislative
days within which to submit additional materials for the
record.
[The prepared statement of Mr. Conyers is located in the
Appendix.]
Mr. Chabot. And before we get started, you are probably
familiar with the 5-minute rule. But each of you will have 5
minutes to testify. We actually have a lighting system which
when you begin there will be a green light. That will be on for
4 minutes. The yellow light will be on for 1 minute, letting
you know it is time to kind of wrap up. And the red light will
come on, at which time we hope you will be finished. If not, we
will give you a little bit of leeway. But we hope to not have
to gavel anybody down.
We also apply the 5-minute rule to ourselves here. So we
are pretty careful about that to be fair.
So if there are no questions, Mr. Lloyd, you are recognized
for 5 minutes.
TESTIMONY OF REES LLOYD, COMMANDER, DISTRICT 21,
THE AMERICAN LEGION
Mr. Lloyd. Thank you very much----
Mr. Chabot. If you could turn the light on. You just push
the--or turn the mike on. Yes, I am sorry. And if you will pull
the box kind of toward you there. We will begin your time here
at that time.
Mr. Lloyd. Thank you very much, Mr. Chairman and Members of
the Committee. And it is indeed a great honor for me to be able
to address you today on this important legislation on behalf of
the American Legion, the largest wartime veterans organization
in the world, with 2.7 million members, and indeed on behalf of
the entire Legion family of Legion, auxiliary and sons of the
American Legion, with some 4 million members.
I can assure you that we regard this as an extremely
serious matter. Our veterans memorials all over the nation are
threatened by lawsuits. And we are being precluded from
effectively exercising our rights to petition before the courts
and before our elected bodies at the local level because of the
threat of attorney fees being imposed, including on us if we
have the audacity to intervene in such cases and fight the ACLU
and others in protection of our veterans memorials because we
run the risk then of having those fees shifted to us. And I
would ask that that be considered carefully by the Congress
when it considers civil rights.
I was very, very interested in the comments of Mr. Nadler,
and I thank him for referencing the civil rights legislation,
civil rights of our country. I have been involved as a civil
rights attorney my entire professional life. It was my honor,
among other things, to represent Cezar Chavez and the farm
workers movement for almost 20 years until the day of that
great man's death. And in that time, I would say, Mr. Nadler,
we fought those battles because they needed to be fought----
Mr. Nadler. Nadler.
Mr. Lloyd. Nadler--not because we were getting paid.
Because when I worked for him, I got all the frijoles and
tortillas I could eat, and that was it. We fought them because
they needed to be fought, and they were right.
And today we are told that the ACLU and others will not
fight the battles for what they believe to be the civil rights
under the Establishment Clause unless they are enriched at
taxpayer expense. And I object to that notion.
Mr. Nadler. I ask that that be stricken from the record.
Mr. Chabot. Let us let the----
Mr. Nadler. It is an unfair aspersion about the ACLU.
Mr. Chabot. The witness is entitled to his opinion. And if
it is his opinion, it is his opinion.
Mr. Nadler. The fact that the ACLU has said it will not
fight unless it gets paid. It is not true.
Mr. Lloyd. It is true that the opponents of this bill have
stated that if you remove the attorney fee provision these
suits will not be brought. In fact, it is in the testimony that
is written here today. So it is true.
And I don't believe the ACLU has ever intended, or anybody
in it ever believed, that that was the basis. Certainly, when I
was an ACLU attorney we never did that. As a civil rights
attorney, as a member, former attorney for the ACLU and for
Cezar, I am appalled that this is what would happen to the
civil rights movement, the civil rights effort, to have to
depend on attorney fees.
We are trying to defend our veterans memorials in
California where we had the precedent of the Mojave Desert
Veterans Memorial across a rock outcrop built in 1934 by vets
to honor vets. When it was incorporated into the Mojave Desert
Preserve, a lawsuit is filed. It is 11 miles off the highway.
It is in the middle of the desert. You have to drive to it to
be offended by it. A judge says tear it down and gave the ACLU
$63,000.
In the Mount Soledad case that many people in the country
are aware of at this time--that cross was there since 1913.
Fifty years ago they established the memorial. Today a Federal
judge has ordered it be destroyed by August 1 or we will fine
you $5,000 a day. We can't enter that case as parties and
intervene because the Legion will then risk having to pay the
ACLU's attorney fees. And that shouldn't be.
It is not a one-way--it is a two--it is not a two-way
street. It is one-way. If the ACLU prevails, it gets its funds.
If it loses, it doesn't have to pay them because there is a
different standard. And the different standard is you have to
show that it was frivolous. It is not at all the prevailing
party gets their attorney fees.
And with reference to the remarks of Representative Scott,
which we appreciate very much, we are dealing with those issues
and other legislative matters. But I will say there is an easy
way to find the money to pay the veterans benefits that are
due. Stop the judges from giving millions to the ACLU and
others to sue our veterans memorials and give us the ability to
fight back on a level playing field where we don't risk having
those fees imposed on us and where we can appeal to local
elected bodies who will listen to us who today don't because
their minds are made up. They say we have no choice, including
in Los Angeles, including at Redlands where they are drilling
holes through the crosses on the badges because they can't
afford to make the changes that are due.
Gentlemen, I don't think Congress ever intended the 1976--
not the 1871 Civil Rights Act, but the 1976 Civil Rights
Attorney Fees Act, 42 U.S.C. 1988 to be used in this way. The
country got along under the Civil Rights Act since 1871 until
1976 without an attorney fee provision, and we can if we
eliminate it today.
And I thank you. I am out of time.
[The prepared statement of Mr. Lloyd follows:]
Prepared Statement of Rees Lloyd
Mr. Chairman and Honorable Members of the Subcommittee on the
Constitution:
It is my great honor to appear before you today to offer testimony
in support of the passage of the Public Expression of Religion Act, HR.
2679, PERA, on behalf of The American Legion, the largest wartime
veterans' organization in the world with 2.7 million members. It is
also poignant that I should appear before you on June 22, the
anniversary of Congress' recognition of the Pledge of Allegiance in
1942, and the day on which in 1944 what has been described as the
greatest social legislation of the 20th Century, the GI Bill, was
signed into law.
In testifying before you, I preface my remarks by stating that I do
not appear before you as an inveterate hater of the American Civil
Liberties Union (ACLU) or related organizations bringing Establishment
Clause litigation and seeking and receiving taxpayer-paid attorney fees
therefore, although I believe that PERA must be passed to stop the
exploitation of the law for attorney fee profits in such cases.
I have been a civil rights attorney for some twenty-five years. I
was an ACLU of Southern California staff attorney for approximately two
years immediately after graduating from law school and passing the
California Bar, and had been on a fellowship with the ACLU while in law
school. I have devoted my professional career to the defense of civil
and workers rights. Among other things, I was for some twenty years,
and until the day of his death and beyond, a volunteer attorney for the
late Cesar Chavez, the founder and president of the United Farm Workers
of America, AFL-CIO, whom we honor in California today for his great
contributions to civil rights. Cesar Chavez was, indeed, a great
American, he mentored me when I was an independent trucker engaged in a
nationwide strike during the so-called Arab Oil Embargo, and it was
Cesar Chavez who urged me to go to law school and his recommendation
that secured my admission. It is a little known fact that Cesar Chavez
was also a veteran, serving four years in the U.S. Navy when his
country called. He was, in his humility and self-sacrifice, the
greatest man I ever knew, or will know, and I will always walk in his
shadow.
I state this not for self-aggrandizement, but, rather, to indicate
to you that I speak to you from the heart, and based on a lifelong
commitment to the defense of civil rights, from participation in
Resurrection City in the Poor People's Campaign of Dr. Martin Luther
King in 1968, to the present moment, in which I am privileged to
participate in a great cause, the cause of veterans, the cause of the
defense of American values by The American Legion Family of Legion,
Auxiliary, and Sons of the American Legion, altogether involving some 4
million members.
Neither The American Legion, nor I as its representative in these
proceedings, believe that passage of PERA is a partisan issue, a
conservative or liberal issue, a Republican or Democrat issue, or an
ideological one. The American Legion believes it is an American issue,
a civil rights issue that transcends all partisan, party, or
ideological allegiances.
PERA is narrowly drawn to impact only on Establishment Clause
cases, and no other civil rights claims. Arguments have been raised
that this, somehow, creates an Equal Protection violation. It is
respectfully suggested that this is an argument without merit; the law
makes distinctions in myriad instances, including as to what kind of
civil wrongs can result in attorney fee transfers by court orders.
Further, Establishment Clause cases are the only claims of which I am
aware that are allowed to proceed without any showing that the
plaintiff has suffered any economic, physical, or mental damage, or
been deprived of the exercise of any right, but is merely offended at
the sight of a symbol which has a religious aspect. In all other
categories of claims of which I am aware, mere ``taking offense'' is
not even cognizable for a claim or cause or action. Thus, the
distinction made in PERA is a rational one, and preserves attorney fee
transfers in cases in which an actual economic, physical, or mental
injury, or deprivation of right, other than mere offense, is suffered.
Concisely stated: The American Legion believes that passage of the
Public Expression of Religion Act is essential for the protection of
civil rights, for all Americans and not limited to special interests,
and for the preservation of the purpose and integrity of the attorney
fee provisions of the Civil Rights Act, 42 U.S.Code Section 1988, the
Equal Access to Justice Act (EAJA), and all other federal statutes
which were benevolently intended to benefit the poor and advance civil
rights, and are now resulting in the opposite; are resulting in
unintended financial enrichment; and are trammeling and throttling the
exercise of First Amendment rights to freedom of speech, to petition
for redress of grievances to the judicial and legislative branches,
In particular, but without limitation, The American Legion believes
this reform legislation is absolutely necessary if we are to be able to
preserve and protect our veterans memorials, and, indeed, all public
displays of symbols of our American heritage which have a religious
aspect, from litigative attacks under the Establishment of Religion
Clause of the First Amendment by special interests, epitomized by, but
not limited to, the ACLU, the primary source of such Establishment
Clause litigation, and the primary recipient of literally millions of
dollars of attorney fees from such litigatio--even though the ACLU in
fact has no actual attorney fees.
As a former ACLU attorney, I know to a certainty that the ACLU's
litigation is carried out by staff attorneys, or by pro bono attorneys
who are in fact precluded from receiving fees under the ACLU's own
policies. Notwithstanding, the ACLU regularly seeks, and receives,
attorney fees in Establishment Clause cases at market rate, usually
$350 an hour in California. Although the courts know that ACLU clients
in fact incur no attorney fee obligation, and that ACLU incurs no fee
obligation to volunteer cooperating attorneys, as far as known, no
judge has simply said ``no'' to ACLU attorney fee requests, even though
there is no evidence that any attorney fees were incurred. Thus,
benevolently intended fee provisions are being used as a bludgeon
against public entities to surrender to ACLU's demands, and to obtain
profits in the millions. (See, examples cited below, and in American
Legion Magazine reports submitted as Attachments hereto.)
Further, it must be emphasized that there is nothing in the law
today to bar declared enemies of America, including without limitation
terrorists who we are warned are in fact in our midst, from following
the precedents being set by the ACLU and others to bring lawsuits to
destroy or desecrate our veterans memorials, or other public displays
of symbols of our American history and heritage if they contain a
religious aspect, and then to exploit federal law, including the Civil
Rights Attorney Fees Act, 42 U.S. Code Section 1988, and related acts,
including the Equal Access to Justice Act (EAJA), which also should be
reformed, to demand that the courts award them taxpayer-paid attorney
fees for such Establishment Clause litigation attacks.
Frankly stated, if PERA is not passed, if EAJA and all other
federal statutes which may provide attorney fees in Establishment
Clause cases are not also reformed, there is nothing in the law to
prevent such an abuse and exploitation by terrorists or their
sympathizers.
The American Legion urges this reality to be considered in acting
on PERA.
The threat of imposition of such fees is having other, and very
real, consequences: Benevolently intended attorney fee statutes
designed to advance First Amendment rights, including the right to
petition for redress, are now being exploited for financial profit in
Establishment Clause litigation, to effectively prevent The American
Legion and others from meaningful participation in such Establishment
Clause litigation in the exercise of the right to petition. Simply
stated, as an attorney, acting under the Code of Professional
Responsibility, I must advise The American Legion and others I
represent based on what the law is, not what I would like it to be.
Without PERA, I necessarily have to advise The American Legion that if
the organization does seek to intervene in lawsuits against veterans
memorials as a party, it risks having a court order it to pay the
attorney fees of the ACLU.
Thus, the very threat of imposition of attorney fees is having a
chilling affect on the exercise of fundamental First Amendment rights.
Further, the threat of imposition of attorney fees in Establishment
Clause controversies is effectively depriving Americans of the right of
speech and to petition elected bodies for redress because those elected
bodies at the local level cannot in fact consider contrary views and
deliberate because they so fear imposition of attorney fees in such
matters by the courts that they believe they have no deliberative
choice as they must protect taxpayer funds which are needed for
essential local services. In short, their minds are made up before the
first objection of a citizen is heard, nullifying effective exercise of
the freedom of speech and to petition for redress before local elected
bodies.
Thus, the citizen's right to be heard, and the very deliberative
process of our representative democracy, are being distorted and denied
by the threat of, and actual imposition of, attorney fees on taxpayers
in Establishment Clause litigation.
The threat of imposition of attorney fees is very real, and it
manifestly is being used as a bludgeon by the ACLU and others to compel
surrender to their demands to in effect secularly cleanse the public
sphere, including at veterans memorials.
Although most Americans remain unaware of it--and are outraged when
they learn of it--Courts are awarding taxpayer-paid attorney fees to
the ACLU and others literally in the millions of dollars annually,
against towns, school boards, cities, counties, states, and the
potential of imposition of such fees on The American Legion or others
who would desire to intervene in such cases to participate fully in
those judicial proceedings, as parties, to apprise the judiciary of
their views on the importance of protecting our veterans memorials or
other public display of symbols of our American heritage.
Passage of PERA is essential as the very threat of imposition of
attorney fee awards in Establishment Clause cases, including those at
veterans memorials, has intimidated elected bodies into surrender to
the demands of the ACLU and others to remove or destroy symbols of our
American heritage if they have a religious aspect, rather than run the
risk of imposition of often massive attorney fees on taxpayers, or upon
intervening private parties, like The American Legion in defense of
veterans memorials.
All across the nation, lawsuits are being brought under the
Establishment Clause to remove or destroy symbols of our American
heritage from the public sphere if they have a religious aspect,
principally the Christian Cross, but also the Star of David, both of
which are present in the hundreds of thousands in our twenty-two
National Cemeteries, from Arlington in the East to Riverside National
Cemetery in California, and across the sea at American cemeteries in
Europe, including Normandy Beach, where there are more than 9,000
raised Crosses and Stars of David.
There are countless veterans memorials which have stood for years,
decades, even longer, erected by grateful Americans in small towns,
cities, counties, states, and considered by most Americans as sacred
places as their manifest purpose is to honor, and call to the
remembrance of succeeding generations, those Americans who served and
sacrificed in defense of our American freedom.
Today, all of these veterans' memorials are threatened by dangerous
precedents being set in Establishment Clause lawsuits brought by
individuals and special interest organizations, epitomized by the ACLU,
who are offended by veterans memorials because they contain a Cross or
other religious symbol, or a prayer, as in the Mojave Desert Veterans
Memorial case (Buono vs. Norton), and the Mt. Soledad National War
Memorial litigation in San Diego, which has become a focus of national
controversy in light of the fact that, on the one hand, a federal judge
has ordered the City of San Diego to tear down the cross which has
stood at the memorial for more than half a century or he will fine the
taxpayers $5,000 a day; and, on the other hand, a California Superior
Court Judge overturned a special election in which 76% per cent of the
voters voted to transfer the Mt. Soledad National War Memorial to the
federal government. The attorney for the plaintiff in the case,
reportedly backed by the ACLU, has collected thousands of taxpayer-paid
dollars in attorney fee awards in that case.
In the Mojave Desert Case, the solitary cross, erected on a rock
outcrop eleven miles off the road in the desert by veterans in 1934 to
honor World War I veterans, has been declared to be an unconstitutional
violation of the Establishment Clause because in 1994 it was
incorporated into the Mojave Desert Preserve. Although Congress passed
legislation sponsored by Rep. Jerry Lewis, my Representative in
California, to transfer the one-acre Mojave Desert Veterans Memorial to
private parties, veterans, in exchange for five acres of private land,
the federal judge, on motion of the ACLU, nullified the act of
Congress, finding its action violates the Establishment Clause, and
ordered the Executive Branch to tear down the Cross. That case is on
appeal. So far, the ACLU has reaped $63,000 in attorney fees to destroy
that veterans' memorial.
These veterans' memorials deserve to be defended, and The American
Legion is ready and able to do so. But the threat of imposition of
attorney fees creates a bar to intervention in these case with full
party status not only against the public entities which cannot risk
imposition of attorney fees, but private non-profit organizations like
The American Legion which have fiduciary obligations to their members
and cannot effectively exercise the right to petition for redress in
Establishment Clause cases because of the risk that devastating
attorney fees may be imposed.
The enormity of the threat of imposition of fees by courts should
not be discounted. For but a few examples:
<bullet> In its Establishment Clause lawsuit against San Diego
to drive the Boy Scouts out of Balboa Park, the ACLU received
some $950,000 in attorney fees when the City settled rather
than risk even more attorney fees being awarded in the
litigation.
<bullet> In the Ten Commandments Case in Alabama, the ACLU and
sister organizations received $500,000 in attorney fees.
<bullet> In Washington State, the ACLU received $108,000 from
the Portland School board in a case brought for an atheist to
prevent the Boy Scouts from recruiting in the schools on non-
class time.
<bullet> In Illinois, the ACLU brought suit against the
Chicago Schools to drive out the Boy Scouts out of the schools,
and the Department of Defense to drive the Boy Scouts off
military bases as sponsored troops. The Chicago schools quickly
kicked out the Boy Scouts and settled $90,000 on the ACLU to
avoid even larger court-awarded fees. The DoD entered a partial
settlement, and the case continued, resulting in a federal
judge finding that the DoD aid to the Boy Scout Jamboree,
supported by every U.S. President since its inception, is in
fact a violation of the Establishment of Religion Clause. ACLU
is seeking attorney fees under the Equal Access to Justice Act
in that case.
<bullet> In Nebraska, a federal judge overturned a referendum
in which 70% of the voters voted to define marriage as a union
of a human male and female, and imposed attorney fees of some
$156,000.
<bullet> In Los Angeles County, the Board of Supervisors voted
3-to-2 to remove a tiny cross from the County Seal when the
ACLU threatened to sue over it (but not over the Roman Goddess
Pomona whose figure dominated the Seal). The County will spend
approximately $1 million to remove the cross from all flags,
seals, badges, etc. The rationale for the three who voted to
surrender to the ACLU: The threat of an even greater amount
ordered in attorney fees to the ACLU if the County fought and
lost.
<bullet> The City Council of Redlands voted, unwillingly, to
remove the cross from its City Seal when the ACLU threatened
lawsuit. The sole reason given for the vote: The fear of a
court-awarded attorney fees to the ACLU being imposed on
limited taxpayer-funds needed for city services. Redlands
cannot afford to change all of the seals as L.A. County is
doing. Therefore, among other things, Redlands is calling in
all employees who have badges, police, fire, emergency
services, et al., and drilling a hole through the Cross on the
badges to comply with ACLU's demands.
<bullet> In the Mojave Desert WWI Veterans Memorials case, the
ACLU pleaded for fees under both the Civil Rights Act, 42
U.S.C. Section 1988, and EAJA, and ultimately received some
$63,000 in attorney fees under the EAJA.
A recent case exemplifies, I believe, the abuse and exploitation of
the Civil Rights Act attorney fee provisions for pure profit by the
ACLU, and the ACLU's use of the Civil Rights Act to terrorize local
elected bodies.
That case is the now famous ``Dover Design Theory Case.'' There,
the ACLU sued the Dover school board after it voted to include teaching
of the ``design theory'' along with Darwinian theory in science
classes. The ACLU was represented by a cooperating, pro bono law firm.
Whatever one thinks of the ``design theory'' or the merits of the
case, the attorney fee outcome should be carefully considered. The
judge ruled that the teaching of ``design theory'' violates the
Establishment Clause. The court then awarded the ACLU $2 million in
attorney fees to be paid by the school board from taxpayer-funds needed
for the schools.
The court imposed this massive attorney fee award on the taxpayers
and schools even though the pro bono law firm representing the ACLU
declared that in fact it waived all attorney fees. Thus, the $2 million
is pure profit for the ACLU.
The ACLU added to this set of facts the following: The ACLU
announced to the media after its victory over the school board that it
was only going to demand that the school board pay it $1 million
instead of $2 million. The ACLU stated it was doing so because the
school board members who had voted for the teaching of ``design
theory'' had been removed from the school board in elections and
replaced by school board members who agreed with the ACLU's position.
Thus, the ACLU announced it would not ``punish'' the school board
by demanding the full $2 million.
However, it publicly warned that it would not be so benevolent in
the future if any other school board did not comply with ACLU's
demands.
I respectfully suggest there could not be better evidence of the
need for PERA, nor better evidence that the ACLU is exploiting the
Civil Rights Act for profit and using its attorney fee provisions as a
club to ``punish,'' in ACLU's own words, elected local agencies, than
the very public statements of the ACLU in the Dover Design Case.
As one who was active in what was once called the Civil Rights
Movement, and one who in that movement supported and fought for the
attorney fee provisions of the Civil Rights Act and EAJA, and as a
former ACLU attorney, I am personally appalled and ashamed at the
ACLU's disgraceful abuse of the Civil Rights Act for its own political
and economic gain. People fought, and some died, in the civil rights
movement for these laws to benefit the poor and make real the promise
of our American freedoms. What is happening is shameful.
Congress should end this abuse.
The American Legion is strongly in support of passage of PERA, and
similar reform of the EAJA and all federal fee-shifting statutes in
Establishment Clause cases, as an absolutely necessary reform of the
law to preserve and protect our civil and constitutional rights, and to
protect the integrity of the Civil Rights Act, EAJA, and related acts.
At the American Legion National Convention in 2004, more than 4,000
delegates voted unanimously for Resolution 326, Preservation of Mojave
Desert Memorial, which I wrote and which calls on Congress to amend the
Civil Rights Act, 42 USC Section 1988 to eliminate the authority of
judges to award attorney fees to the ACLU, or anyone else, in
Establishment Clause cases. (See, Attachment.) At that time, Past
National Commander Thomas P. Cadmus of Michigan called on ``all
Legionnaires, and all Americans, to stand up to the ACLU and defend our
American values.''
At the American Legion National Convention in 2005, delegates
unanimously voted to adopt Resolution 139, to amend the EAJA in the
same way as the Civil Rights Act to eliminate the courts' power to
impose attorney fees in Establishment Clause cases when the federal
entities are the defendants, as in the Boy Scouts Jamboree case. (See,
Attachments.)
American Legion National Commander Thomas Bock, the primary
spokesman for The American Legion in all matters, including PERA, vowed
upon his election at the 2005 National Convention that The American
Legion would stand and fight to defend our veterans memorials, our
American values generally, and to support passage of PERA against the
terrorizing litigation attacks of the ACLU and others.
In 2006, under National Commander Bock's leadership, The American
Legion published ``In the Footsteps of the Founders,'' explaining why
PERA is needed. It was sent to all 15,000 American Legion Posts along
with additional material on DVD.
In his recent call for defense of the Mt. Soledad National War
Memorial, Commander Bock stated:
``What is next? Will the ACLU target the 9,387 crosses and Stars of
David honoring World War II heroes killed during the invasion of
Normandy? The Public Expression of Religion Act, H.R. 2679, may be the
only way to stop this assault.''
The American Legion does mean to stand and fight to defend our
veterans' memorials against Establishment Clause litigation assaults.
But we need a level playing field--and that means the end to one-sided
risks of attorney fee awards to the ACLU, or others, but not against
the ACLU or others, because, under decisional law, the fees do not go
to the ``prevailing party'' because, when the ACLU loses, it is
shielded from fee transfer unless it can be shown the suit was legally
frivolous because the filing of a lawsuit against a governmental entity
is itself a First Amendment right.
With regard to Commander Bock's reference to the American Cemetery
at Normandy Beach, may I close with a personal observation which, I
believe, reflects what is really at stake, and how much defense of
veterans memorials means to us.
I am proud to be a member of Memorial Honor Detail, Team 12,
Riverside Post 79, at Riverside National Cemetery, the home of the U.S.
National Medal of Honor Memorial, and the U.S. National POW/MIA
Memorial, the centerpiece of which is a dramatic sculpture of a
prisoner of war by artist and Legionnaire Lewis Lee Millett, Jr., a
veteran who waived the entire $100,000 artist's commission so the funds
could be used to complete the memorial surrounding the sculpture.
We fear that that sculpture in the National POW/MIA Memorial may
become a target of an Establishment Clause lawsuit, because artist,
veteran, Legionaire Lee Millett, Jr., engraved the POW's Prayer at the
base: ``I look not to the ground, for I have no shame. I look not to
the horizon, for they never came. I look to God, I look to God . . .''
There are more than 80,000 gravesites at Riverside National
Cemetery now, almost all with a Cross or Star of David or other
religious symbol. We fear for them, too. The ACLU has said it would not
sue the grave markers because that is a matter of ``family choice.''
That, constitutionally, is utterly specious: 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. Further, who would have dreamed the
ACLU would file a lawsuit against the solitary cross honoring WWI
veterans in the middle of the desert to which one has to drive to be
offended.
MHD Team 12, Riverside Post 79, is the first volunteer team to
perform more than 1,200 military honors services for our fallen
comrades.
The Captain and founder of Team 12 is Robert Castillo, who is a
Native American who has served in many Legion offices in California and
has led practically all 1,200 MHD Team 12 services at RNC, carrying the
American Flag to lead the processions.
Robert Castillo, as a teenager, participated as a member of the
United States Navy in the D-Day landing at Normandy Beach on June 6,
1944. He fought on both Omaha and Utah beaches. His ship was sunk. He
was terribly wounded, and received a Purple Heart among other medals.
On the anniversary of D-Day, June 6, 2006, Robert Castillo, who is
affectionately known as ``Uncle Bobby'' by Legionnaires throughout
California, led MHD Team 12 through six military honors services, in
heat that reached 100 degrees. He never wavered in those services; he
has never wavered in service to America as a teenager on D-Day, nor any
day since, as he continues to serve America in The American Legion.
He asked me to convey to this Committee, and this Congress, his
support for PERA, and his common-sense view which I believe reflects
the view of almost all the 2.7 million members of The American Legion:
``How can they give our tax money to the ACLU to sue our veterans
memorials? I don't understand it. It's wrong. They shouldn't be allowed
to do this. Are they going to sue our cemetery at Normandy Beach, and
then take our money for doing it? We can't let them do that. My buddies
are buried there.''
If you heed no other voice, I would appeal to you to hear the voice
of Legionnaire Robert Castillo, and reform the law by passing PERA, and
comparable reform of EAJA and all other federal fee statutes in
Establishment Clause cases. Do not allow the law to be exploited for
profit in attacks under the Establishment Clause against our veterans'
memorials and cemeteries. Give us the level playing field needed to
allow us to defend the memorials, and gravesites, of our fallen
American heroes.
I thank you for allowing me to testify on behalf of The American
Legion.
ATTACHMENT
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Mr. Chabot. Thank you very much, Mr. Lloyd.
Mr. Staver, you are recognized for 5 minutes.
TESTIMONY OF MATHEW STAVER, FOUNDER AND CHAIRMAN, LIBERTY
COUNSEL, INTERIM DEAN, LIBERTY UNIVERSITY SCHOOL OF LAW
Mr. Staver. Thank you, Mr. Chairman, Members of the
Committee. Thank you for inviting me.
Sections 1983 and 1988 are in derogation of the American
rule. The American rule essentially says that each party bears
his own cost for the cost of the litigation. These sections are
particularly apropos in the normal civil rights cases where
plaintiffs are ill-financed and where the law has some relative
predictability.
However, in the Establishment Clause cases, many if not
most of the plaintiffs today, based on the rise of public
interest law firms, will finance the case by the public
interest law firm and, therefore, there will be no opposition
for these individuals to come to court if this Committee passes
this particular bill.
Moreover, Establishment Clause jurisprudence is the most
unpredictable and conflicting area of law today. There have
been and remain sharp disagreements among the justices of the
United States Supreme Court over the meaning and the
application of the Establishment Clause. In an area where the
law is so conflicting and the court decisions are so confusing,
supporting every conceivable position to the contrary, it makes
little sense to award damages and attorney's fees to plaintiffs
with diametrically opposed positions on the same issue.
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. While
conflicting court opinions will inevitably 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 exactly opposite and
irreconcilable results. One sad example involves New York City
public school funding cases, which were litigated at an
enormous expense. The same school district that paid huge
attorney's fees after losing its case at the United States
Supreme Court eventually won 10 years later coming back
following a second challenge.
In the Augustini case, the court overruled its prior
precedent involving the same New York City public school
district. Scarce tax dollars, however, were used to divert
through attorneys rather than to disadvantaged school children.
By providing damages and a fee shifting statute in such a
confused area of law, the complaining plaintiff often uses the
threat of attorney's fees and costs and damages to force
Government officials to a desired result, whether or not the
result is the right one.
The confused and conflicted opinions of the Establishment
Clause jurisprudence originate with the United States Supreme
Court. The Court recently used several tests--or the court
currently uses several tests, some of which conflict with one
another. And sometimes the Court foregoes using any test at
all.
The Court uses the oft-maligned three-pronged Lemon test.
The court later modified these three prongs to two prongs. But
in certain institutional funding cases, the Court resurrects
the third prong. For several years, the Court added the so-
called ``political divisiveness prong'' but then recently
overruled itself and eliminated this prong.
The Court also uses a historical analysis or the Marsh
test. 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. And we are left with little guidance to
determine which test should be used.
The Court in Lee v. Weisman developed a so-called coercion
test. But the justices are not in agreement when it should be
used. Nor do they agree whether it is coercion with
psychological only or whether it involves some kind of penalty
or force.
Knowing the problem, Justice Sandra Day O'Connor, shortly
before her retirement, proposed a brand-new test in the Newdow
case that was designed to be used in limited circumstances.
Justice Thomas has recently advocated that the Establishment
Clause does not even apply to the States, nor does it bind the
States. Then, of course, sometimes the Supreme Court uses no
test at all and, even worse, provides no explanation as to why
it used no test.
If the justices of the United States Supreme Court are
conflicted over the meaning of the Establishment Clause--and
they are--and if professors and judges in lower courts are
conflicted--and they are--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
minefield.
Another peculiarity with the Establishment Clause that
makes sections 1983 and 1988 inappropriate is the exception to
the normal rules regarding standing. In every other area of
law, the plaintiff must experience a direct and concrete
injury. But in the Establishment Clause context, Federal courts
have relaxed these requirements and carved out significant
exceptions.
In most lower Federal courts, a plaintiff can bring a
challenge to the Establishment Clause simply because the
litigant claims that he or she is offended by the imagery, the
words or the alleged action. This exception to the general rule
has opened up the floodgates of litigation.
It is because of these floodgates of litigation and it is
because of the unique situation regarding the Establishment
Clause that I believe, although these statutes, 1983 and 1988,
may be applicable in other areas, even first amendment free
speech or free exercise, they are wholly inapplicable in the
Establishment Clause.
If you talk to any judge or any professor, the issue of the
Establishment Clause is the most confusing area of
constitutional law.
I argued one of the Ten Commandments cases last year. And I
can tell you no one can make a determination as to what the
rationale is between those two cases. In one case, they used a
brand-new modified Lemon test, in the Kentucky case. And in the
other case, they essentially used no test at all.
One court recently on December 20, 2005, says that the
Supreme Court on the Establishment Clause have left the lower
Federal court judges in first amendment purgatory. For these
reasons, we shouldn't punish Government officials when our own
justices of the Supreme Court are conflicted and confused over
the meaning of the Establishment Clause.
Thank you very much.
[The prepared statement of Mr. Staver follows:]
Prepared Statement of Mathew D. Staver
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Mr. Chabot. Thank you.
Mr. Stern, you are recognized for 5 minutes.
TESTIMONY OF MARC STERN, GENERAL COUNSEL,
AMERICAN JEWISH CONGRESS
Mr. Stern. Mr. Staver----
Mr. Chabot. If you could turn the mike on.
Mr. Stern. Mr. Staver has given the lies to the charge that
the ACLU would not litigate if there were not attorney's fees.
The New York City case he talked about was finally litigated in
PEARL v. Nyquist in 1973 3 years before the attorney's fees
statute was brought. My predecessor was lead counsel. If there
were attorney's fees, it was later in Aguillard when the other
side won, but not when the original case, PEARL v. Nyquist, was
brought.
Secondly, this bill has two components. We have heard not a
word from its proponents about the limitations on remedy,
which, as I read the bill, include even a ban on declaratory
judgments, nominal damages, punitive damages, which we make
available to prisoners even under the Prison Litigation Reform
Act.
As to attorney's fees, this act leaves citizens worse off
than inmates in prison. Inmates get capped attorney's fees.
Here a proven violation of the Establishment Clause results in
no attorney's fees.
Secondly, it is simply not true that the Establishment
Clause is uniquely difficult. I defy anybody to explain when
regulations become taking. I defy anybody to explain to me in
great detail what the public forum doctrine amounts to.
There are any number of cases--I have advised school
districts--a case called Wigg v. Sioux Falls School District
where a teacher taught in her own classroom immediately after
school in a Bible club. I believe, others believe that that is
a substantial Establishment Clause reason for the school to say
you can't teach a Bible club in the same classroom you teach
during the day as a public school teacher. I think there is a
Supreme Court case on point directly controlling.
I told the school board they ought to take an adverse
decision of the Eighth Circuit to the Supreme Court. And what
they said to us was we can't afford to. We will have to pay
attorney's fees for the other side. It is entirely--the bill's
ban on attorney's fees is entirely irrational.
If a teacher is disciplined for compelling students to
bring--to pray, he or she can bring a first amendment free
speech challenge, a free exercise challenge. And in the
unlikely event that they prevail, they get attorney's fees. If
by chance the student beats the teacher to the courthouse and
brings an Establishment Clause claim on a clear, established
violation of the Establishment Clause, they get no attorney's
fees.
The issues before the court will be exactly the same. The
school district will raise free speech claims or free exercise
claims on behalf of the teacher, or the teacher will intervene
and raise those claims. The Establishment Clause issues in the
case, the free speech claims in the case--who gets attorney's
fees depends simply on who was first to the courthouse door. I
suggest to you there is no rational difference between those
two cases that justify this restriction.
Finally, I would say the following. It is clear from the
testimony of my colleagues on the panel that the chief beef
here is not with the attorney's fees statute but with the
substance of constitutional law. And that is plainly beyond
this Committee's competence.
There is a problem in one category of cases where there are
conflicting constitutional rights and you have an award of
attorney's fees to one side, whoever happens to win when there
are plausible arguments all along on both sides. But that would
put Mr. Staver's group out of the attorney's fees business.
That would put ACLJ out of the attorney's fees business. And
they, equally with the ACLJ, the American Center for Law and
Justice, equally with the ACLU finance their operation with
attorney's fees.
The Wigg case, in which the teacher taught in her own
classroom immediately after school, which the Wall Street
Journal cited in my testimony, points out that kids feel
attracted to the teacher they know, I think has substantial
Establishment Clause problems. There is a conflict of rights
there.
If you are interested in not having the attorney's fees
statute prevent people from litigating cases where there are
plausible constitutional claims on both sides, then do it even-
handedly. Say, in cases in which the court finds that there is
substantial constitutional arguments on both sides,
constitutional argument, not merely policy argument, on both
sides, you have the discretion to lower or cap fees. That would
be fine. But I assure you it is not the ACLU that will be the
chief victim of that, of that action. The action will come from
the other side.
Finally, because I have many friends in the ACLU. It is
true that you have Ken Falk's letter. It is all equally true
that when that letter was written it was perfectly clear that
the school couldn't run a school graduation because the Supreme
Court had said so the year before.
A colleague of mine who was on the opposite side of the
aisle in church-State cases used to make a living writing
letters to school boards asking them to stop what he thought
were constitutional violations. And I would call him up and I
would say--I am not going to use his name--you know, ``Joe, the
other organization that is your competitor, first they file a
lawsuit, and then they settle for attorney's fees. Why do you
write the letter first?'' He goes, ``Well, that is just not an
ethical way to proceed.''
If you think this is a problem only of the ACLU, you are
wrong. Attorney's fees can be abused. They also make it
possible to vindicate constitutional rights that otherwise
would go unvindicated. If you want to deal with abuse, then
deal with abuse. This bill doesn't deal with abuse. It deals
with one section, one type of rights that the Committee happens
to disfavor. That is not a permissible basis for legislation.
[The prepared statement of Mr. Stern follows:]
Prepared Statement of March D. Stern
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Mr. Chabot. Thank you.
Professor Garry, you are recognized for 5 minutes.
TESTIMONY OF PATRICK GARRY, ASSOCIATE PROFESSOR OF LAW,
UNIVERSITY OF SOUTH DAKOTA SCHOOL OF LAW
Mr. Garry. Thank you, Mr. Chairman, Members of the
Committee.
It has already been discussed here the confusing and
inconsistent status of the Establishment Clause jurisprudence.
I would contend in disagreement with Mr. Stern that it is an
unusually confusing and inconsistent area of the law. Teaching
constitutional law, I make my living on making the students
confused about doctrines in constitutional law. But it is
particularly confusing when it comes to Establishment Clause
doctrine.
And I think there is a link between the fear that local
government officials have in dealing with this area about what,
in fact, does constitute an impermissible establishment of
religion. And the court, in fact, has recognized that in
several cases I cited to this Committee, the Lamb's Chapel
case, the Rosenberger case, the Good News cases in which local
government officials are, in effect, selecting out and
discriminating against religious expression because of the fear
that somehow any connection between that local governmental
entity and this religious expression might be seen as an
unconstitutional establishment.
There have been--it has already been discussed--sort of the
number of different tests that have been used to measure
whether an establishment--impermissible Establishment Clause
has occurred. And one can even see it sort of in comparing some
of the cases that have taken place. For instance, government
can pay for students to be bused to and from religious schools,
but the government can't pay for busing trips during the school
day for field trips for those students.
Some Christmas creches on public property are okay. Others
are not. It is due largely to the individual facts and context
of each case and how the judges are going to interpret those.
Prayers can be used to open legislative sessions, but they
can't be used prior to Friday night football games.
There is also indications in which local government
officials or school boards in particular have singled out
religious expression only to be told later on that, in fact,
the Establishment Clause did not require their particular
activity. One school even prohibited a teacher's assistant from
wearing a cross on a necklace during school hours. Elsewhere,
afraid of violating the Establishment Clause, school officials
refused to let a student read a religious story as part of a
class exercise on inspirational stories.
Now, granted, Mr. Stern brings a good point. This Committee
can't necessarily control or can't control really in any way
what the Supreme Court does about the Establishment Clause. But
that aside, it can do something about the costs and risks
imposed by a Supreme Court that is very uncertain and
inconsistent in this particular area.
I might also add in response to the--sort of the general
subject area of Section 1983. Section 1983 is a civil rights
statute and meant to provide relief for violation of individual
civil rights. As was brought up, it is used to vindicate when
there are violations of a person's right to vote.
And, in fact, in the religious area if an individual is
discriminated against or infringed on their religious liberty
in some way, they have the opportunity to bring a free exercise
clause--and that free exercise lawsuit. And under that, they
can pursue this kind of remedy. And that is a real individual
right remedy.
However, the Establishment Clause within the context of the
Constitution is not necessarily an individual right provision,
not at all in the sense that free speech is or an individual's
right to vote or an individual's right to practice their
religion. It is a--it is a structural kind of provision which
deals with the relationship between religion and Government in
society.
And with that, I will sum up and thank the Committee for
inviting me here today.
[The prepared statement of Mr. Garry follows:]
Prepared Statement of Patrick M. Garry
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Mr. Chabot. Thank you very much, Professor Garry.
We are now at that time where Members of the panel here
will have 5 minutes to ask questions. And I will yield myself 5
minutes for that purpose.
Mr. Lloyd, if I could begin with you. First of all, let me
thank you for your service to our country.
Mr. Lloyd. Thank you.
Mr. Chabot. In your opinion, is there any danger that the
crosses, for example, at Arlington Cemetery that are honoring
our brave men and women who have given their lives in defense
of this country could fall under the argument that it is in
violation of Establishment Clause and potentially have
difficulties there?
Mr. Lloyd. I think there is a great danger of that
happening because of the precedents that have been set at
Mojave Desert Veterans Memorial case and Mount Soledad case.
And we do not in the American Legion consider this to be
nonsense, this legislation or this threat. There is absolutely
nothing in the law right now to prevent declared haters of
America, including terrorists in our midst or their
sympathizers, from following the Mojave Desert case precedent
or Mount Soledad and suing our veterans memorials because the
symbols there are on Federal property. And that is the premise
upon which these decisions are based.
I am on an honor detail at Riverside National Cemetery,
which is the home of the national medal of honor recipient
memorial and the POW-MIA memorial. And the centerpiece of which
is a dramatic sculpture of a POW sculpted by a veteran, Lee
Millett, Jr., a member of the American Legion who waived the
entire $100,000 artist's fee so the memorial could be built.
Lee Millett engraved on the base of that memorial a prayer: ``I
look not to the ground because I have no shame. I look not to
the horizon for they never came. I look to God. I look to
God.''
Today under the jurisprudence that we are faced with, that
is indeed vulnerable. A lawsuit could be mounted on that. And
we need to be able to defend against it. There is 80,000 graves
there, almost all of them with crosses or Stars of David or
other symbols. They are at risk.
At Normandy Beach, there are over 9,000 raised crosses and
Stars of David. They are on the American cemetery. It is
considered our property administered by the French. They are at
risk. All the terrorist sympathizers, one of the Osama bin
Laden's minions, has to do is to say look at this precedent,
walk into a Federal court, file the suit, win it like shooting
ducks in a barrel and get the money.
Now, I understand that in the testimony of Mr. Stern--and I
respect his testimony--he said, of course, by denying attorney
fees the act makes it likely that few suits would be brought,
even in cases where an injunction would be appropriate. I
happen to agree with his analysis in that regard.
But I don't think for a minute that there is anything in
the law today that will protect us from such suits by
terrorists or their sympathizers and their right to get
attorney fees because you can't give it to the ACLU and deny it
to Osama bin Laden. And we have nothing to protect us except
passage of this bill, the Public Expression of Religion Act.
And I urge its passage.
Mr. Chabot. Thank you.
Mr. Staver, if I could go to you next. Are you aware of
cases where cities and towns have felt that religious
references in their public square were constitutional but they
could not afford to defend those references?
Mr. Staver. Absolutely, Mr. Chairman. In fact, we receive
calls all the time from around the country. Liberty Council has
been in existence since 1989. And we provide our services at no
cost to the plaintiff or to the defendant, depending upon
whether the constitutional principle is one that should be
defended. But even in those situations where we would represent
county or Government officials at no cost to them, the fact is
many of them back down from a threat, just simply a letter or
even a phone call because of the possibility that they would
have enormous financial burdens at the end of this litigation
if they were to lose.
Take, for example, the Ten Commandments case. The Ten
Commandments case is, I think, universally--and Mr. Stern, I am
sure, will agree with me on this. In fact, I don't know anybody
on either side of this aisle, whether you are more
separationist or less separationist, that doesn't agree with
this proposition. And that is this. The Supreme Court has
absolutely given confusing and conflicting notions with regards
to how do you deal with the Ten Commandments.
In the Ten Commandments case that I argued, the court
actually said you could have an identical Ten Commandments
display in one county or one part of the State that would be
constitutional but another one that looks exactly the same in
another part of the county, a different neighboring county
could be unconstitutional. In fact, you could have the same
thing in the same county in different governmental buildings.
And the sole difference between the constitutionality of one
versus the other, even though they are identical, is the
subjective statements that were made by the governmental
officials, whether they may have referenced God when it was
going up or may they have referenced, in fact, that it was just
simply an educational display.
Now, when you are dealing with situations like that and
somebody might have made a statement or somebody who was
religiously affiliated came by and made a statement at the
display of these particular monuments or displays and it is
printed in the newspaper, that alone could make something
unconstitutional. And, in fact, in that case, Justice Souter
cited a newspaper article of a clergy who showed up at the
actual display whose clergy was the pastor of one of the
governmental officials. And because of that used that as at
least an example of how they must have had some religious
motivation and, therefore, it is unconstitutional.
And this same display since I argued the case we have also
defended it in other parts around the country at the Federal
courts of appeals has been upheld, the same, exact, identical
display at the 7th Circuit Court of Appeals and now at the 6th
Circuit Court of Appeals. And it is the 6th Circuit Court of
Appeals on December 20, 2005, that says the Supreme Court has
left us in first amendment purgatory.
So what that means is this. When we receive calls or see
situations where someone gets a letter, whether it be from the
ACLU or Americans United for Separation of Church and State or
someone else, and they are threatened with litigation, even
though they wouldn't have to pay their attorney's fees for
having their own defense, the risk of having to factor this
into a limited school board budget or city council budget is
too great for them to bear. And so, they back down simply
because of threat.
Mr. Chabot. Thank you very much.
My time has expired, so I am out of time for questions.
The gentleman from New York, Mr. Nadler, is recognized for
5 minutes.
Mr. Nadler. Thank you, Mr.--thank you, Mr. Chairman.
First of all, let me say that it would be a great day for
this country when the terrorists bring lawsuits instead of
plant bombs.
Mr. Stern, can you cite any case in which a religious
symbol on an individual grave marker has been challenged in
court on establishment grounds?
Mr. Stern. No, that charge is demagoguery. Nobody is going
to bring it. That is clearly the statement of the person or the
family----
Mr. Nadler. That being the cross or the Star of David on
the grave?
Mr. Stern. There is no such case. I know of no organization
that has even contemplated such a lawsuit. All the lawsuits
involve symbols erected by the Government owning the cemetery
and represent the Government's speech, not the speech of
individuals. I might add, just to be technical, that a lawsuit
against the Federal Government is not relevant to today's
discussion because the attorney's fees statute does not apply
against the Federal Government.
Mr. Nadler. Thank you.
Mr. Stern. And so, all those things----
Mr. Nadler. Thank you.
Mr. Staver, have you or any organization you have
represented been awarded attorney's fees?
Mr. Staver. Yes, we have.
Mr. Nadler. Thank you. Do you know what percent of the
budget of Liberty Council of the American Center for Law and
Justice comes from attorney's fees?
Mr. Staver. I don't know, but I know from ours----
Mr. Nadler. Could you submit it for the record, please?
Mr. Staver. I could submit it.
Mr. Nadler. Thank you.
Mr. Staver. I know from ours it is very little.
Mr. Nadler. Thank you, but submit it for the record,
please.
And could you provide a record of the fees you have been
awarded of this type in dollar amounts as a percentage of the
annual budget for the record, as you just said?
Mr. Staver. We could do that.
Mr. Nadler. Thank you.
Mr. Staver. It is a public record.
Mr. Nadler. Mr. Stern, if the Government willfully violates
an injunction under this act, what remedy is available apart
from the attorney's fees issue?
Mr. Stern. If it violates an injunction under the act,
presumably all the remedies that are available, although,
whether that includes damages afterwards or attorney's fees for
enforcing the original injunction, is entirely unclear.
Mr. Nadler. Well, under this bill it would not include----
Mr. Stern. There might be, there might be nothing. So that,
in fact, the San Diego case, which Mr. Lloyd talks about, has a
$900,000 or $500,000 attorney's fees because for 15 years the
city of San Diego and its supporters have simply refused to
abide by a Federal court order. And what this bill will do, by
taking away the attorney's fees, is encourage people to ignore
Federal court orders because there is no penalty for violating
a Federal court order, a binding Federal court order.
Mr. Nadler. And also--but under this bill if you violate an
injunction, there would be no damages, correct?
Mr. Stern. There would be no damages. And worse yet, in a
case in which you could----
Mr. Nadler. So what would stop under this bill--what would
stop a recalcitrant governing authority and a local government
from violating a Federal court injunction?
Mr. Stern. Nothing. And what is worse is even if you only
got a--if you only had a case where you could get declaratory
relief--for example, a one-time violation of the Establishment
Clause where an injunction is impossible because there is no
possibility of future repetition--you are utterly without
remedy, no attorney's fees, no nominal damages, no declaratory
judgment and no punitive damages. It is an open invitation for
people to defy the Constitution in the interest of political
convenience at their will.
Mr. Nadler. Thank you, Mr. Stern.
Finally, take a case where the law is unclear. A teacher
prays after school. I think you made reference to a given case.
She claims she has a free speech right to do so. The school
thinks--the school thinks it violates the Establishment Clause.
How would this legislation affect the school's calculus and
deciding what to do about it?
Mr. Stern. It would not because the teacher is free to
bring a case. She gets attorney's fees. The school board in any
event is not entitled to attorney's fees if it is vindicated.
In fact, it is even unclear if a third party, let us say a
parent of a student, intervened in that case and the school
board won, whether the intervener would be entitled to
attorney's fees.
Mr. Nadler. It is unclear under the current law or under
the statute?
Mr. Stern. It is unclear both. That would not change.
Mr. Nadler. So, therefore, this doesn't affect----
Mr. Stern. But the calculus doesn't change for the school
board. They are still faced with the possibility of attorney's
fees if they lose, nothing if they win. And a completely viable
Establishment Clause claim does not get----
Mr. Nadler. Would this include forced prayer in violation
of Barnette?
Mr. Stern. Does this include--this includes any
Establishment Clause violation, including as cited in my
testimony----
Mr. Nadler. So there would be no remedy, then?
Mr. Stern. No remedy. Cases where, as the school board in
Montgomery County did and Ann Arbor did, liberal bastions where
they imposed a liberal form of religion on the students, which
is an Establishment Clause violation equally, there would be no
remedy for those students, either. And one of those cases
involved a one-time violation.
Mr. Nadler. So do you think that forced prayer involves the
violation of individual rights?
Mr. Stern. Well, not according to Justice Thomas, who
Professor Garry--whose views Professor Garry has endorsed. I
think it does.
Mr. Nadler. And----
Mr. Stern. The Supreme Court thinks it does.
Mr. Nadler. Okay.
Mr. Staver, final question. Atheists and wiccans have asked
that their symbols be placed on individual grave markers of
their adherents in military cemeteries. Do you support their
right to have their symbols on their tombstones in military
cemeteries?
Mr. Staver. Certainly, anyone has a right if they wanted to
have their own particular choice of whatever religious symbol
on their----
Mr. Nadler. Including wiccans?
Mr. Staver. Including wiccans. But I would also like to say
that in response to this violating a court injunction, it is
not true that you would not have some attorney's fees because
the fact is----
Mr. Nadler. Under this bill?
Mr. Staver. Under this bill because you can get a damage
award or an attorney's fee award for violating a court
injunction irrespective of whether there is a fee shifting of
damaging shifting statute. So in this hypothetical you gave,
that would be a violation of a court ordered injunction. And
that would be punishable by attorney's----
Mr. Nadler. Mr. Stern, would you come in on that, please?
Mr. Chabot. The gentleman's time is expired.
But you can comment, if you would like to.
Mr. Stern. I don't know on what authority and what statute
a court would rely on to award damages other than the
underlying constitutional violation.
Mr. Nadler. I am confused. So----
Mr. Stern. In any event----
Mr. Nadler. Mr. Staver is saying that despite this bill, if
someone violated--if some Government authority violated an
injunction, you could still get attorney's fees?
Mr. Staver. You could get attorney's fees.
Mr. Nadler. Okay.
And, Mr. Stern, you are saying----
Mr. Stern. I think that is not the case. I am prepared to
submit a legal memorandum. I may be wrong, but I believe that
that is the case.
Mr. Nadler. Thank you.
Mr. Stern. And the bill certainly leaves that unclear.
Mr. Nadler. Thank you.
Mr. Chabot. Would we have to pay attorney's fees for that
legal memorandum?
Mr. Stern. At a very enhanced rate, Your Honor.
Mr. Chabot. Okay, thank you.
The gentleman from Indiana, the chief sponsor of the
proposed legislation, is recognized for the purpose of asking
questions for 5 minutes.
Mr. Hostettler. Mr. Stern, are you familiar with the fact
that the bill allows for injunctive relief?
Mr. Stern. Yes, but--excuse me. But----
Mr. Hostettler. That is my question.
Mr. Stern. Yes, but----
Mr. Hostettler.--and we will have a chance for another. So
the answer is yes.
Professor Garry, if an injunction is granted and an
individual violates the injunction, is there grounds for a
contempt citation?
Mr. Garry. Yes.
Mr. Hostettler. Is the contempt citation, if violated,
grounds for fines?
Mr. Garry. As far as I know, yes.
Mr. Hostettler. Irrespective of the language of this
legislation?
Mr. Garry. Yes.
Mr. Hostettler. Mr. Stern, when you voluntarily offered in
your testimony that there would be no penalty whatsoever of an
individual that would violate the Establishment Clause and,
therefore, defy an injunction, did you know that a contempt
citation----
Mr. Stern. A fine doesn't remedy the plaintiff's harm. It
goes to the Government.
Mr. Hostettler. No, that wasn't the question. The question
was----
Mr. Stern. It is not what the testimony is talking about.
The testimony is talking about the harm to the plaintiff.
Mr. Hostettler. In your----
Mr. Stern. The plaintiff is not remedied by a fine that
goes to the U.S. Treasury.
Mr. Hostettler. That is not, that is not your statement.
Your statement was there was no penalty of the, of the----
Mr. Stern. There is no penalty to the plaintiff. If I need
to amend the testimony, I will, but that is what I meant.
Mr. Hostettler. And that is true. But that was not the--
that was not what you said. You said there was no reason for
the defendant to not--to not----
Mr. Stern. Look at the San Diego case.
Mr. Hostettler.--injunction.
Mr. Stern. Fifteen years we are litigating an order that is
final.
Mr. Hostettler. I have another----
Mr. Stern. And public officials defy it because it is in
their political interest to defy it.
Mr. Hostettler. I have another question for you, Mr. Stern.
You talk in your testimony about having a client who was a
football player who objected to school-sponsored prayer in the
case Berlin v. Okaloosa County. What was the decision in that
case?
Mr. Stern. We lost the temporary preliminary injunction
because the school board threatened to riot at the football
game. After the school superintendent's election was safely out
of the way, the school board settled. That case was later
controlled by--it was later controlled by Doe and----
Mr. Hostettler. But according to your testimony, the reason
why they settled--here the availability of attorney's fees put
an end to a calculated defiance of the Constitution for cheap
political advantage. The facts of the case--in Okaloosa County,
was it mandatory for attendance at a football game?
Mr. Stern. If you are the punter on the team, yes.
Mr. Hostettler. My son was a place kicker on a team. And he
never had to go to a football game. It was never required.
Mr. Stern. If he wanted to be a place kicker on the team,
he had to be where the team was.
Mr. Hostettler. Was it mandatory--was it mandatory for
participation in high school athletics?
Mr. Stern. Congressman, if you want to re-argue Santa Fe
School District, I am perfectly prepared to re-argue it.
Mr. Hostettler. No.
Mr. Stern. The Supreme Court rejected that argument. And
Lee v. Weisman is the same thing. It was not mandatory to
attend graduation. That is Justice Scalia's submission. As I
count, he didn't get five votes.
Mr. Hostettler. Thank you.
Mr. Stern. If you don't get five votes on the Supreme
Court, you lose.
Mr. Hostettler. Right. Thank you for the filibuster.
But given the fact that neither attendance at the football
game was mandatory, nor participation in varsity athletics in
Okaloosa County was mandatory, is it possible, Professor Garry,
is it possible that a later Supreme Court may find that because
of no mandatory attendance, no mandatory participation, that,
in fact, no coercion on the part of the school district or the
Government took place in the school sponsored prayer at the
football game?
I am not asking you if it is constitutional law today
because 25 years ago it was unconstitutional, according to
Stone v. Graham, to have the Ten Commandments in a public
place. But in 2005, that changed. My question is, is it
possible, given what I have just asked you, that some future
Supreme Court may say that this is not a violation of the
Establishment Clause?
Mr. Garry. Well, Representative, I think it is more than
possible. Of course I think it is possible. And I outline the
arguments in a recent book I published on the Establishment
Clause.
Mr. Hostettler. Well, thank you.
So we have a situation whereby the case was not decided.
The case was determined as the result of the coercion on the
part of the plaintiffs to get the school district to say we
will take you to court, you will pay our attorney's fees. And
so, the case never went to court. And, in fact, as is the
testimony, an interim injunction was actually denied by the
court.
So it is possible, possible that the case may have been
lost, not probable, not likely, but possible that the case
would have been lost on the part of the plaintiff and this
school sponsored prayer could have continued.
Mr. Chairman, this is why we need PERA because of the sword
of Damocles that hangs over everyone's head given the muck of
Establishment Clause jurisprudence as it is today. I yield back
the balance of my time.
Mr. Chabot. The gentleman's time is expired.
The gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
Mr. Scott. Thank you.
Mr. Stern, can you bring a 1983 action against the Federal
Government?
Mr. Stern. No.
Mr. Scott. No?
Mr. Stern. No.
Mr. Scott. Okay.
If you have a 1983 action, Mr. Lloyd--you talked about
attorney's fees against the American Legion. The American
Legion isn't the defendant in this case. Is that right? So you
wouldn't have to pay attorney's fees?
Mr. Lloyd. I raised the point, Representative, that if we
attempt to intervene as parties and fully participate in the
adjudication then we risk the fee shifting of the ACLU's
attorney fees to us. That has a chilling effect on us and
everybody else who would get in and attempt to fight for these.
And if I may, the point about the imposition of attorney fees
under 1983 and Federal defendants, we believe in the American
Legion that the Equal Access to Justice Act must be reformed in
the same way as 42 U.S.C. 1988. And it should be.
In the Mojave Desert Veterans Memorial case, the ACLU
pleaded for fees under both. They said give us fees under the
Civil Rights Act of 1976. And then they said or give us fees
under the EAJA. They ended up getting $63,000 under the EAJA.
We think they both should be reformed.
Mr. Scott. Mr. Staver, if there were no attorney's fees,
would the law in this area be any clearer?
Mr. Staver. I don't think it would be any clearer,
Congressman. I think we have to have the Supreme Court make it
clearer and then the lower Federal court judges have some
principles and rules to follow. And right now they don't have
any consistent area of law. It is not going to make it clearer.
Mr. Scott. Okay.
Mr. Staver. The problem, however, is----
Mr. Scott. It would still be the same confusing law that it
is. You mentioned standing, too. If people who are offended by
the State action, who could?
Mr. Staver. Well, this would not affect standing. What has
happened--and in the normal standing rules, you have to have
three criteria you meet. And primarily you have to have a
direct and concrete injury, not imaginatory or conjecture. But
in the Establishment Clause, there has been a huge area that is
carved out that has opened up the floodgates so essentially
anybody who drives by that sees something that they are
offended to can bring a suit and walk into court.
Mr. Scott. Well, who else--who else would there be to bring
the case?
Mr. Staver. Well, I think as Judge Easterbrook said in the
7th Circuit case involving the Ten Commandments, the issue of
whether words alone that make an offense to you give you a
cause of action to come to court should be reconsidered.
Mr. Scott. Who else could bring the case other than
someone--other than someone who is offended, who else could
bring the case?
Mr. Staver. Well, someone who is actually injured by the
activity. For example, it is one thing if you are forced to
participate in a religious activity. It is another thing if you
are driving by on a highway and you see a cross on a city seal
as a police car drives by at 40 miles per hour and all of a
sudden you are offended.
Mr. Scott. Who else could--who could bring the case?
Mr. Staver. Somebody who has either a penalty or force or
some kind of coercion in participating in a religious activity
or exercise.
Mr. Stern. It is not true, in any event, that anybody who
drives by--the courts have uniformly insisted that you change
your behavior in some way. You don't go into the courthouse.
You walk around to some other entrance and the like. It is
simply a misstatement of current standing law to say that
anybody who drives by can bring a case.
Mr. Staver. But all that means is that instead of going
down First Street, you divert and go down Second Street. You
change literally nothing in your behavior.
Mr. Scott. Well, I would be, I would be hard pressed to
find somebody--if the local city put up a religious symbol in
the courthouse, that would be hard for us to find somebody who
has an economic loss as a result. So if, so if the people who
are offended by that can't sue, there wouldn't be a plaintiff.
Mr. Staver. Well, the fact is this does not change any
standing rules. The standing rules are a whole different issue
that the courts need to deal with. What this does is because
the floodgates have been opened because of the standing rules
and because it is so confusing that people don't know what to
do, the threat of attorney's fees and damages are
inappropriate. In fact, what you have is a court awarding
damages to one particular situation that is identical and to
the opposite situation awarding damages because they don't know
which side of this issue to come down on.
Mr. Scott. What is a disincentive to a locality, Mr. Stern,
from just violating the law intentionally?
Mr. Stern. None.
Mr. Chabot. Will the gentleman yield?
Mr. Scott. Even in a--even in a case that is not even
close.
Mr. Stern. Take a case----
Mr. Scott. And if the victim----
Mr. Stern. Take the case in Michigan which is cited in my
case. A school district sponsors a panel of liberal clergymen
to explain why the Bible does not ban homosexuality. It was a
diversity day. That is the day that this event occurs. It is a
one-time event. It is a clear violation of the Establishment
Clause. By the time you get to court and litigate this case,
diversity day is long forgotten. There is a clear violation of
the Establishment Clause.
Under this bill the conservative Christians who brought
suit would have no remedy. They can't get an injunction. It is
moot. They can't get any attorney's fees because the bill says
so. There is no declaratory judgment because the bill says so.
There is no nominal damages because the bill says so. And there
are no punitive damages because the bill says so. Nobody
remedies.
Mr. Scott. I just have a couple of seconds left, and I
wanted to get this chart----
Mr. Chabot. The gentleman doesn't have a couple seconds
left. But the gentleman has an additional minute.
Mr. Scott. Thank you, Mr. Chairman.
Just since the Chairman pointed out what happened during
court, who was in control, let me break the color code down.
Red is Republican presidents. Purple is Democratic presidents.
And you can use your own adjectives to describe what
happened when the 10-year forecast starting in the beginning of
2001 dropped $9 trillion after that red line fell off the
chart. And that is--interest on the national debt is going up
hundreds of billions of dollars from what had been projected
just then. And that money could have gone to veterans and other
needs or could have paid off the national debt.
Mr. Chabot. Would the gentleman--would the gentleman
explain how the PERA bill that Mr. Hostettler has proposed
would affect that?
Mr. Scott. Yes, because we have suggested all these
attorney's fees are causing the lack of veterans' health care.
And I suggest that part of the $9 trillion deterioration in the
budget could have been used for veterans' health care rather
than worrying about the few hundred thousand dollars. We are
talking trillions, not billions, not millions, few hundred
thousand dollars that naturally may have gone to some of these
attorney's fees.
We could have gotten a lot more done if we had not ruined
the budget. And you can use whatever adjective you want to
describe that----
Mr. Chabot. The gentleman's time has expired.
But the Chair would just note that we would be happy to
provide reams and reams of documentation to show that under
Republican administrations there have been significant
improvements in veterans' health care and a whole range of
other issues. But that is not the jurisdiction that this
Committee has.
Mr. Scott. Mr. Chairman, could I be recognized for
unanimous consent?
Mr. Chabot. Pardon me?
Mr. Scott. Could I be recognized for unanimous consent?
Mr. Chabot. Without objection.
Mr. Scott. I have letters from the Leadership Conference on
Civil Rights, Americans United, and a coalition of many civil
rights organizations opposed to the legislation that I would
like to enter into the record.
Mr. Chabot. Without objection.
[The letters referred to are located in the Appendix.]
Mr. Scott. Thank you.
Mr. Staver. Mr. Chairman, may I be recognized for just one
moment to correct something?
Mr. Chabot. Yes.
Mr. Staver. Congressman Scott mentioned whether there would
be any disincentive if this bill were passed. I would like to
underscore that this is not a radical or unusual bill. In fact,
this would make the State as it relates to Establishment Clause
exactly how it has always been with regards to the Federal
Government. And the Federal Government would have exactly the
same disincentive not to violate a constitutional right.
We haven't seen the Federal Government running away rampant
because they don't have an attorney's fee or damage provision
under Section 1983 or 1988. So I don't think this opens up the
floodgates to the Government run amok because it simply puts
the States back into the same thing we have always dealt with,
the Federal Government.
Mr. Stern. If Mr. Staver wants to see 1988 repealed
entirely, that would be fine. The question before the Committee
is why selectively repeal it. You don't have a 1988 for the
Federal Government on free speech.
Mr. Chabot. Okay. The Chair--the Chair--we are going to go
back to regular order here.
And the gentleman from Arizona, Mr. Franks, is recognized
for 5 minutes.
Mr. Franks. Well, thank you, Mr. Chairman.
And thank you, gentlemen, for coming. And I want to be
very, very brief here with my questions because I would like to
yield to another gentleman here.
So, Mr. Stern, earlier the question was brought up as to
the crosses or Stars of David on military cemeteries. And I
thought I heard you say, and I believe I did--and I just want
you to clarify very transparently, very courageously your own
opinion, not stating a fact, but your own opinion.
If the family or the soldier that has died is the one that
designates the cross or the Star of David or the wiccan,
whatever it is, is it then appropriate or is it your opinion
that that is constitutional----
Mr. Stern. Completely.
Mr. Franks.--for the Federal Government then to pay for
that tombstone and for that cross or that Star of David or
whatever the family designates? Is that your opinion, a yes or
no, sir?
Mr. Stern. Yes. And it would be inappropriate for the
Government not to do so.
Mr. Franks. Okay. I appreciate your--do you think that that
is the ACLU's opinion?
Mr. Stern. Yes.
Mr. Franks. Okay. And you think that the Supreme Court--and
that is constitutional?
All right. That is what I wanted to know. And I appreciate
it.
Mr. Stern. They litigated such a case, and they made it
clear----
Mr. Franks. I appreciate the transparency.
Mr. Lloyd, if I am understanding the gentleman's position,
he says that it is appropriate as long as the family decides or
the soldier what that religious symbol is, that it is
appropriate for Government to pay for the creation of that
symbol.
Then how is it--and you understand where I am on--I am a
co-sponsor of this bill. How is it then, when you incorporate
someone that built a cross out here on private money--how is it
then unconstitutional for that to be incorporated into some
type of cemetery situation?
Your opinion, sir?
Mr. Lloyd. Well, I would not dream of being so presumptuous
as to explore the thinking that has resulted at modern
jurisprudence in this issue because it is so confusing. In my
small mind I couldn't grasp it. Certainly, the people making
the decisions can't.
I don't believe it is unconstitutional to erect on private
land a cross or a Star of David or any other religious symbol
that later gets taken over or put into Federal or State or
local public land and then declare it to be unconstitutional
even though it was not unconstitutional when it was erected.
And that is certainly the situation at Mount Soledad in
California. It went up in 1913. There wasn't even an
incorporation of the Establishment Clause against the States
and localities until 1947. And somehow the sky didn't fall, and
the republic survived.
Mr. Franks. Thank you, Mr. Lloyd.
And I just--Mr. Chairman, just a brief statement. You know,
sometimes we are always seemingly surprised by all of a sudden
what has happened in the last 30 or 40 years of certain things
that we always thought were constitutional, crosses out here or
Stars of David out here. We always thought those things were
okay. And all of a sudden, we are shocked and we are amazed
that the ACLU has found how unconstitutional they have always
been.
And so, it is always a shock to me. And I am wondering some
day if we won't see the ACLU bring suits that say we have to
stop listening to families' positions on that. I see no reason
in the direction they are going why that won't happen.
And with that, I would like to yield the balance of my time
to Mr. Hostettler.
Mr. Hostettler. I thank the gentleman for yielding.
Mr. Chairman, I would like to continue to clear up this
idea of a disincentive. The question was posed, as Mr. Staver
said earlier from Representative Scott to Mr. Stern, is there a
disincentive for violating the Establishment Clause. And Mr.
Stern's response was no.
Mr. Staver, in your experience, is the probability of an
injunction to stop an activity or a move, a particular symbol,
is that a disincentive for violating the Establishment Clause?
Mr. Staver. Absolutely, it is. It is a disincentive for a
number of reasons, not the least of which is the political
ramifications that that creates where someone has literally
violated a law. Now a court is telling them to stop violating a
particular law. It is an absolute disincentive.
Mr. Hostettler. And I am not an attorney, but, Mr. Staver,
if you could answer this question, too. Mr. Stern likewise said
there was no remedy under the legislation PERA. Is injunctive
relief in legal terms a remedy?
Mr. Staver. It is. And Mr. Stern also, I think,
incorrectly, I believe, stated that you wouldn't even have
declaratory relief. Well, injunctive relief is the primary
relief that you would have in any of these kinds of cases where
a court issued an order telling you to stop doing something or
to start doing something. But in this case, it would be to stop
a particular activity. That is the remedy that is primarily
sought. That remedy will always be there.
Mr. Hostettler. It is primarily sought because ostensibly
the reason why the plaintiff is bringing the case--maybe not
why the interest group is defending or is representing them,
but the reason why the individual is bringing the case is to
stop what they see as a violation of their constitutional
rights. Is that not true?
Mr. Staver. That is true.
Mr. Hostettler. Thank you.
I yield back the balance of my time.
Mr. Chabot. The gentleman's time is expired.
If the gentleman is available, the gentleman from Iowa?
Mr. King. Excellent.
Mr. Chabot. The gentleman from Iowa is recognized for 5
minutes.
Mr. King. Thank you, Mr. Chairman. This is the story of my
life, just in under the wire.
And I want to thank the witnesses for the testimony this
morning and thank Mr. Hostettler for bringing this bill and Mr.
Chairman for holding this hearing this morning.
I am not so much with questions for the panel as I am just
an opportunity to reflect somewhat on my overall viewpoint on
this. And I think it is framed a great deal on the remark that
was made by Mr. Hostettler when he said given the muck of
Establishment Clause jurisprudence today.
And, of course, I don't know if there has been testimony
here and discussions about the text of the Constitution. But it
has always been a source of despair to me to go to the Supreme
Court of the United States, the very center of the place where
one might go if they were seeking to hear profound
constitutional arguments before the Supreme Court of the United
States. I have gone there a number of times to listen to those
profound constitutional arguments and those profound issues
that so much shape this society and that are the core, I
believe, of one of the foundations at least and the most
important foundation of the greatness of America.
And a couple of those arguments before the court would be
the affirmative action cases that came in some couple of years
ago and the Ten Commandments cases that were before the court.
I don't remember the exact date on that, but I sat in on that.
And as I listened to those profound constitutional
arguments, I listened for them. But I have not heard one before
ht Supreme Court. It takes a very nuanced ear to pick out a
constitutional argument before the Supreme Court. And yet we
are here arguing case law as if somehow it were decided upon
the Constitution when yes, you can read the briefs and you can
find constitutional arguments there.
But the case law that is being argued before the court is
targeted at the nuances of the psychological analysis of
perhaps a swing justice. And to sit there for an hour on a case
and listen to those nuanced arguments targeted at the
idiosyncrasies perhaps, maybe even the legal idiosyncrasies of
a swing justice and then conclude that somehow the Supreme
Court has ruled upon the text of the Constitution is a source
of great frustration to me.
And, in fact, when I walk to the Supreme Court to hear the
Ten Commandments cases, I walked in out of the bright sunlight
and before my eyes adjusted to the darkness inside the Supreme
Court building, I was met by a security guard. And I introduced
myself, and I said, ``I am Congressman Steve King, and I am
here to hear the Ten Commandments cases.'' And he said--and
this is for the record--``My name is Moses, and I am here to
lead you.''
And he was a wonderful guard. Moses led me in, and he led
me out. He led me past the oaken doors that have the Ten
Commandments inscribed in them into the chamber of the Supreme
Court where up on the frieze as if I were sitting in Justice
Ginsburg's seat, I would make my expression to the Moses upon
the frieze in this fashion up above on her left and on the left
of all the justices. And she referenced the Moses with the Ten
Commandments there and said that he is simply up there among, I
believe she said, 25 other lawmakers or lawgivers.
Now, the only figure I recognize up there is Moses. And the
rest of them are pretty obscure from my understanding of Greek
mythology or history. And it is--and so, then on the other side
of the Supreme Court building, on the east side, on the
pediment, there sits Moses also with the Ten Commandments on
his knees as he sits down opened up for all to see. And he
sends a message out for all to notice that here this is a
nation that is based upon the rule of law and the foundation of
that rule of law is God's law.
You cannot escape that. And if architects--excuse me,
archeologists should somehow or another--or if something
happens like Pompeii to America and we were sealed off with a
lava flow and in 10,000 years if they would dig up this city
and chisel the lava off of our buildings, they would see
expressions of religion engraved into the marble and into the
stone and into the concrete as part of who we are, of the
foundation of this nation.
And so, that foundation is this Constitution. And the
Constitution says Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof.
They will read this Constitution. And then I would
challenge those archeologists to go back and read through this
case law, not having any institutional memory of the
Constitution, but just simply starting with the most recent
case law and then begin to read and understand like
hieroglyphics and divine what was the foundation for these
decisions. And I don't care how smart they might be 10,000 or
20,000 years from now. No one could discern the Constitution by
reading backwards through the case law.
And that is why we have this debate here today, because we
have gotten so far away from the text and the original intent
of the Constitution. It is unrecognizable in the case law
today.
And I thank you, Mr. Chairman. I yield back the balance of
my time.
Mr. Chabot. Thank the gentleman.
I want to thank the witnesses and thank the panel here as
well today. I thought this was a very enlightening discussion.
The panel did an excellent job of letting us know various
points of views which exist. So----
Mr. Nadler. Mr. Chairman?
Mr. Chabot. I think I already did that. But I will
recognize the gentleman.
Mr. Nadler. You may have done one of them. Let me make
sure.
Mr. Chabot. Go ahead.
Mr. Nadler. Mr. Chairman, I ask unanimous consent that all
Members have 5 legislative days to revise the extent of their
remarks, include additional materials in the record.
Mr. Chabot. Without objection, so ordered, even though I
already did it.
Mr. Nadler. And, Mr. Chairman, I don't think you did this
one yet. I understand that an earlier draft of Mr. Stern's
testimony has been included in the materials. I ask unanimous
consent that he be permitted to substitute the final version of
his testimony for the record.
Mr. Chabot. Without objection, so ordered.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chabot. Okay.
But I want to thank again the panel for their testimony
here this afternoon.
If there is no further business to come before the
Committee, we are adjourned. Thank you.
[Whereupon, at 11:32 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Member, Subcommittee on the
Constitution
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Additional Information submitted by Mathew D. Staver, Founder and
Chairman, Liberty Counsel, Interim Dean, Liberty University School of
Law
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Additional Information submitted by Marc D. Stern, General Counsel,
American Jewish Congress
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Prepared Statement of the Alliance Defense Fund concerning H.R. 2679,
the ``Public Expression of Religion Act of 2005''
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Prepared Statement of Steven W. Fitschen, President,
The National Legal Foundation
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Letter from Ruth Flower, Legislative Director, Friends Committee on
National Legislation, to The Honorable Steve Chabot, dated June 19,
2006
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Letter from Wade Henderson, Executive Director, and Nancy Zirkin,
Deputy Director, Leadership Conference on Civil Rights, to Members of
the Judiciary Committee, dated June 21, 2006
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Letter from Caroline Fredrickson, Director, American Civil
Liberties Union dated June 22, 2006
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Letter from the American Civil Liberties Union, et. al., dated June 22,
2006
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Letter from the Reverend Barry W. Lynn, Executive Director, Americans
United for Separation of Church and State, to Chairman Chabot and
Ranking Member Nadler, dated June 22, 2006
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