The Washington Post features an op-ed by Erwin Chemerinsky on the recently-passed PERA legislation, entitled "Legislating Violations of the Constitution". I've placed the full text below the fold.
Have you heard of "Jesus Camp" yet? If not, check it out. As of right now, Jesus Camp will only be featured in one location in Florida -- Gulf Breeze, near Pensecola. Damn! I wish they'd bring the movie closer, and AAFSA could have a movie night. I've placed more resources on the documentary below:
Have you heard of "Jesus Camp" yet? If not, check it out. As of right now, Jesus Camp will only be featured in one location in Florida -- Gulf Breeze, near Pensecola. Damn! I wish they'd bring the movie closer, and AAFSA could have a movie night. I've placed more resources on the documentary below:
"Jesus Camp: Documentary" (Wikipedia)
"Film Shows Youths Training to Fight for Jesus New Documentary Features Controversial Bible Camp, Evangelical Movement" (ABC News Short Article)
ABC News Story -- Video
Trailer of "Jesus Camp"
Article in Colorado Newspaper: (Ted Haggert is in the film, and his church is in Colorado Springs)
Christianity Today Article
Here is the WaPo article:
Legislating Violations of the Constitution
By Erwin Chemerinsky
Special to washingtonpost.com
Saturday, September 30, 2006; 12:00 AM
With little public attention or even notice, the House of Representatives has passed a bill that undermines enforcement of the First Amendment's separation of church and state. The Public Expression of Religion Act - H.R. 2679 - provides that attorneys who successfully challenge government actions as violating the Establishment Clause of the First Amendment shall not be entitled to recover attorneys fees. The bill has only one purpose: to prevent suits challenging unconstitutional government actions advancing religion.
A federal statute, 42 United States Code section 1988, provides that attorneys are entitled to recover compensation for their fees if they successfully represent a plaintiff asserting a violation of his or her constitutional or civil rights. For example, a lawyer who successfully sues on behalf of a victim of racial discrimination or police abuse is entitled to recover attorney's fees from the defendant who acted wrongfully. Any plaintiff who successfully sues to remedy a violation of the Constitution or a federal civil rights statute is entitled to have his or her attorney's fees paid.
Congress adopted this statute for a simple reason: to encourage attorneys to bring cases on behalf of those whose rights have been violated. Congress was concerned that such individuals often cannot afford an attorney and vindicating constitutional rights rarely generates enough in damages to pay a lawyer on a contingency fee basis.
Without this statute, there is no way to compensate attorneys who successfully sue for injunctions to stop unconstitutional government behavior. Congress rightly recognized that attorneys who bring such actions are serving society's interests by stopping the government from violating the Constitution. Indeed, the potential for such suits deters government wrong-doing and increases the likelihood that the Constitution will be followed.
The attorneys' fees statute has worked well for almost 30 years. Lawyers receive attorneys' fees under the law only if their claim is meritorious and they win in court. Unsuccessful lawyers get nothing under the law. This creates a strong disincentive to frivolous suits and encourages lawyers to bring only clearly meritorious ones.
Despite the effectiveness of this statute, conservatives in the House of Representatives have now passed an insidious bill to try and limit enforcement of the Establishment Clause of the First Amendment, by denying attorneys fees to lawyers who successfully challenge government actions as violating this key constitutional provision. For instance, a lawyer who successfully challenged unconstitutional prayers in schools or unconstitutional symbols on religious property or impermissible aid to religious groups would -- under the bill -- not be entitled to recover attorneys' fees. The bill, if enacted, would treat suits to enforce the Establishment Clause different from litigation to enforce all of the other provisions of the Constitution and federal civil rights statutes.
Such a bill could have only one motive: to protect unconstitutional government actions advancing religion. The religious right, which has been trying for years to use government to advance their religious views, wants to reduce the likelihood that their efforts will be declared unconstitutional. Since they cannot change the law of the Establishment Clause by statute, they have turned their attention to trying to prevent its enforcement by eliminating the possibility for recovery of attorneys' fees.
Those who successfully prove the government has violated their constitutional rights would, under the bill, be required to pay their own legal fees. Few people can afford to do so. Without the possibility of attorneys' fees, individuals who suffer unconstitutional religious persecution often will be unable to sue. The bill applies even to cases involving illegal religious coercion of public school children or blatant discrimination against particular religions.
The passage of this bill by the House is a disturbing achievement by those who seek to undermine our nation's commitment to fundamental freedoms laid out in the Constitution. Should it come up for a vote, it is imperative that the Senate reject this nefarious proposal. The religious right is looking for a way to get away with violating the Establishment Clause and is now one step closer to this goal. The Establishment Clause is no less important than any other part of the Bill of Rights and suits to enforce it should be treated no differently than any other litigation to enforce civil liberties and civil rights
Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science, at Duke University.
________________
Technorati tags: Religion
"Film Shows Youths Training to Fight for Jesus New Documentary Features Controversial Bible Camp, Evangelical Movement" (ABC News Short Article)
ABC News Story -- Video
Trailer of "Jesus Camp"
Article in Colorado Newspaper: (Ted Haggert is in the film, and his church is in Colorado Springs)
Christianity Today Article
Here is the WaPo article:
Legislating Violations of the Constitution
By Erwin Chemerinsky
Special to washingtonpost.com
Saturday, September 30, 2006; 12:00 AM
With little public attention or even notice, the House of Representatives has passed a bill that undermines enforcement of the First Amendment's separation of church and state. The Public Expression of Religion Act - H.R. 2679 - provides that attorneys who successfully challenge government actions as violating the Establishment Clause of the First Amendment shall not be entitled to recover attorneys fees. The bill has only one purpose: to prevent suits challenging unconstitutional government actions advancing religion.
A federal statute, 42 United States Code section 1988, provides that attorneys are entitled to recover compensation for their fees if they successfully represent a plaintiff asserting a violation of his or her constitutional or civil rights. For example, a lawyer who successfully sues on behalf of a victim of racial discrimination or police abuse is entitled to recover attorney's fees from the defendant who acted wrongfully. Any plaintiff who successfully sues to remedy a violation of the Constitution or a federal civil rights statute is entitled to have his or her attorney's fees paid.
Congress adopted this statute for a simple reason: to encourage attorneys to bring cases on behalf of those whose rights have been violated. Congress was concerned that such individuals often cannot afford an attorney and vindicating constitutional rights rarely generates enough in damages to pay a lawyer on a contingency fee basis.
Without this statute, there is no way to compensate attorneys who successfully sue for injunctions to stop unconstitutional government behavior. Congress rightly recognized that attorneys who bring such actions are serving society's interests by stopping the government from violating the Constitution. Indeed, the potential for such suits deters government wrong-doing and increases the likelihood that the Constitution will be followed.
The attorneys' fees statute has worked well for almost 30 years. Lawyers receive attorneys' fees under the law only if their claim is meritorious and they win in court. Unsuccessful lawyers get nothing under the law. This creates a strong disincentive to frivolous suits and encourages lawyers to bring only clearly meritorious ones.
Despite the effectiveness of this statute, conservatives in the House of Representatives have now passed an insidious bill to try and limit enforcement of the Establishment Clause of the First Amendment, by denying attorneys fees to lawyers who successfully challenge government actions as violating this key constitutional provision. For instance, a lawyer who successfully challenged unconstitutional prayers in schools or unconstitutional symbols on religious property or impermissible aid to religious groups would -- under the bill -- not be entitled to recover attorneys' fees. The bill, if enacted, would treat suits to enforce the Establishment Clause different from litigation to enforce all of the other provisions of the Constitution and federal civil rights statutes.
Such a bill could have only one motive: to protect unconstitutional government actions advancing religion. The religious right, which has been trying for years to use government to advance their religious views, wants to reduce the likelihood that their efforts will be declared unconstitutional. Since they cannot change the law of the Establishment Clause by statute, they have turned their attention to trying to prevent its enforcement by eliminating the possibility for recovery of attorneys' fees.
Those who successfully prove the government has violated their constitutional rights would, under the bill, be required to pay their own legal fees. Few people can afford to do so. Without the possibility of attorneys' fees, individuals who suffer unconstitutional religious persecution often will be unable to sue. The bill applies even to cases involving illegal religious coercion of public school children or blatant discrimination against particular religions.
The passage of this bill by the House is a disturbing achievement by those who seek to undermine our nation's commitment to fundamental freedoms laid out in the Constitution. Should it come up for a vote, it is imperative that the Senate reject this nefarious proposal. The religious right is looking for a way to get away with violating the Establishment Clause and is now one step closer to this goal. The Establishment Clause is no less important than any other part of the Bill of Rights and suits to enforce it should be treated no differently than any other litigation to enforce civil liberties and civil rights
Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science, at Duke University.
________________
Technorati tags: Religion
Actually, the reason this revision was put forth in the first place was due to the frivolous lawsuits already done by groups like the ACLU. What happens is the ACLU knows that small counties can't afford to pay if they lose in court, so they basically blackmail these counties.
ReplyDeleteIn other words, since the counties know they can't afford huge legal fees they can avoid the whole problem by caving in to the ACLU without having to risk going to court where they have the potential to lose (regardless of the constitutionality of the case).
The ACLU thus uses this as a club to force their views because they know those they go against can't afford to take the gamble that they might lose. And since the ACLU is already actively exploting this, then it is necessary to correct it.
So while Chemerinksy's ideas would work in a rational world, in the REAL world people are going to exploit everything they possibly can. Thus, this action is unfortunately necessary.
On the other hand, I would suggest instead of this legislation that we just interpret the First Amendment correctly in the first place; which is to say that if it isn't Congress promoting any religious view then the conflict ought to correctly reside within the state anyway, thus leaving the power in the individual states which are made up of the people who actually care about whether there is a cross on the front lawn of the state capitol building or not.
That would avoid both the frivolous lawsuits by the ACLU and the need to write new legislation to counter them.
Daniel wrote:
ReplyDelete---
If you violate my rights, I should have to pay my way the courts to prove it?
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How is it violating your rights if someone puts a monument of, say, the Ten Commandments on Federal land? How does it violate your rights if someone has a cross in a memorial that just happens to be on government property?
Name the rights that you have that are oppressed by any of those actions.
Daniel wrote:
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I wish I had a way to erect a huge monument on a courthouse lawn that said, "There is no God but Allah" to see how quickly hypocrites like you would backpedal on this sort of thing.
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A) Thanks for assuming I'd be a hypocrite.
B) If you did it, I wouldn't stop you. Unlike you, I realize that monuments on property aren't a violation of my rights.
C) This already occurs with many "secularized" things that still show up on government property (ie. Santa Claus, etc.).
Daniel wrote:
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Also, you are ignoring a point that this op-ed highlights: that frivolous lawsuits do not result in attorneys' fees.
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Except that you're ignoring my point, as I said earlier: "So while Chemerinksy's ideas would work in a rational world, in the REAL world people are going to exploit everything they possibly can."
Frivolous lawsuits all too often end up in court, and furthermore they all too often end up in a travesty of justice.
Daniel wrote:
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When the government agent has not violated the Establishment Clause, then the ACLU cannot win in court, and will not collect a penny.
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This ignores a couple of things.
1) The ACLU is adept at judge-shopping. That is, they will go around until they find a district sympathetic to their cause and file the lawsuits there. Example: do you ever wonder why 99% of the legislation from the bench that occurs is done in the 9th Circuit Court (i.e. the crusade against the pledge of alegience, etc.).
2) The ACLU doesn't even actually have to take anyone to court in order to succeed here. The mere threat of it is more than enough to get their way. Again, suppose that you cannot afford to go to court. You can't risk losing. Thus, it becomes less risky to just cave than it would be to stand up and try to fight it.
Daniel wrote:
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We have that understanding in America -- that justice will prevail. Otherwise, this is a vote of no confidence in the court system. I might argue that it is just that -- an appeal from the Legislative branch to strip some of the checking power of the courts.
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In other words, the legislative branch is doing its job. The judicial branch was called the despotic branch by Jefferson for a reason. They are not supposed to legislate, yet they are doing exactly that now.
Anyway, as to specific examples I'll get you some shortly. Time for me to run to work at the moment though!
My "right" is enumerated in the Bill of Rights as numero uno -- the establishment clause.
ReplyDeleteMonuments on government property are a clear symbol of endorsement. The government has to be religion-neutral (obviously) to be Constitutional. Is this a no-brainer, or what?
Does no one but me see the difference in taking away affirmations of religion and in installing negations of religion? Ie take "In God We Trust" off the currency (replace with original, Constitutional "e pluribus unum")...versus replace with "There is no God". Secular = no mention of God, not mention that there is none.
Did you get to see Roy Moore's rant on this?
ReplyDelete