Firm Foundation

The Judiciary Committee of the U.S. House of Representatives has approved the Public Expression of Religion Act; the measure now goes to the floor of the House for an up-or-down vote. Should the measure pass the House, it would then face its toughest hurdle, getting through the Senate.

We first mentioned the PERA last month, a measure that would prevent plaintiffs from recovering attorneys’ fees in cases implicating the Establishment Clause of the First Amendment. It is intended to prevent the blackmailing of small-town and county governments by the ACLU, Americans United for Separation of Church and State, and like organizations when those partisan public interest law firms bring suits designed to remove any vestige of religion from the public square.

Not surprisingly, Barry Lynn, the executive director of Americans United, expressed displeasure over the Judiciary Committee’s action, calling it “nothing more than an attempt to scare people away from having their day in court.” The ACLU joined the pity party with a press release warning that passage of the PERA would force plaintiffs to pay legal fees totaling in the hundreds of thousands of dollars and it would “deter attorneys from taking cases in which the government has acted unconstitutionally.” A “news story” from the Associated Baptist Press about the Judiciary Committee’s action joins in the chorus of condemnation by informing that “[w]ithout such reimbursements, many church-state separationist groups and other civil-rights groups could not afford to file such lawsuits in the first place.”

The above statements from Lynn & Co. about the PERA are, of course, absurd. In the first, place, it is well-known that the ACLU and AU troll for plaintiffs so that they can file these cases: it is the organizations themselves that actually push these Establishment Clauses cases; they are not “defending the defenseless” who have been feeling oppressed by the public presence of the Christian religion for all these years. Secondly, the national ACLU takes in over $48 million per year and Americans United takes in an average of $8 million annually. It is beyond preposterous to claim that such wealthy and ideologically-driven organizations would not be able to afford such lawsuits if they could not get their attorneys’ fees paid by the losing party.

What these organizations are really whining about is that if the PERA passes they will lose a valuable intimidation tool against state and local governments in these kinds of cases. If these governments did not have to face the prospect of paying the opposing party’s legal fees if they lost, more of them would stand up to the ACLU and AU. This could, just through such opposition, lead to victories for religious freedom and defeats for the ACLU and AU. Eventually, the ACLU and AU may determine that picking these fights is no longer profitable, but that would be a long time down the road. For now, passage of the PERA at least would cause these anti-religious legal interest groups to think twice before filing some of these ridiculous lawsuits.