You’re a homeowner. A lawyer wins a court order to tear down part of your house. You pay him a fat fee, encouraging him to file yet another case to tear down yet another part of your house.
Sound absurd? That is relationship now between the American Civil Liberties Union (ACLU) and the American taxpayer. Federal, state and local tax dollars are being pumped into the ACLU by court orders. This flow of money rewards prior ACLU efforts to shut down or remove aspects of American history, and encourages more of that in the future.
Congress has come up with a solution, introduced in both Houses. But first, a definition of the problem.
Example: In San Diego a "civil rights" lawyer of the ACLU stripe litigated for 17 years to obtain both federal and state court decisions that the Soledad Cross, a recognized federal veterans’ memorial but then owned by the City of San Diego, must be torn down. Congress has since passed a law to take the property immediately as a federal war memorial. It no longer belongs to San Diego.
The ACLU types who oppose any public displays concerning religion are now suing the federal government. Since there are thousands of federal war memorials, displaying tens of thousands of crosses (and other religious symbols as well), that case will certainly fail.
But this is not about the cross, but about the attorneys’ fees involved. San Diego has already paid more than $250,000 in court-ordered fees to James McElroy, the attorney for the atheist seeking the destruction of the Soledad Cross. Fee awards in other ACLU "religious" cases have run up to $1 million.
The problem is not just court-ordered fees paid but the possibility of future court orders. The ACLU has, in many of its school district cases, targeted small districts for which a $100,000 fee award would destroy their budget. Faced with an implacable foe that could damage their finances, such districts often cave in to the demands of the ACLU, even when they have sound legal grounds to argue that their actions are acceptable.
Example: Last November, the Brunswick County School Board voted 3-2 against a proposal to display the Ten Commandments. This came after the North Carolina General Assembly specifically authorized such displays, but also after the NC ACLU announced that it would sue any district which allowed such a display.
Per a 1976 Supreme Court decision, attorneys’ fees in federal courts can be awarded only under laws from Congress or provisions in the Federal Rules of Procedure. All of the federal court attorneys’ fees in the hundreds of ACLU anti-religion cases have come under the Civil Rights Attorneys Fee Act of 1976. Enter S. 3696, Veterans’ Memorials, Boy Scouts, Public Seals, and Other Public Expressio!s of Religion Protection Act of 2006, sponsored by Senator Sam Brownback (R-Kansas) and the Public Expressio!s of Religion Act, sponsored by Rep. John Hostettler (R-IN 8th). Both pieces of legislation have been referred to their respective Committees on the Judiciary and hearings have been held.
During recent hearings Senator Brownback stated the case well: "Congress’ intent in passing (attorneys’ fees award legislation) in 1976 was to prevent racial injustice and discrimination…thirty years later these laws are being used simply to purge religious faith – and symbols of any faith – from our society at taxpayer expense."
These bills provide that the legitimate purpose for which the attorneys’ fees provision was first passed would remain as is. The ACLU’s purpose, to eliminate all reference to religion in public places – even historical, memorial, or non-denominational — would no longer be funded by taxpayers’ money, extracted from federal, state and local governments.
For most of American history, the kind of references to God and to religious heritage that are liberally used in the US Supreme Court ("God save the United States and this Honorable Court" and the Court’s depictions of Moses, the Ten Commandments, Hammurabi, etc.) have been treated as historical – not as efforts to compel citizens to fall on their knees and join a particular religious sect on the spot.
In recent Supreme Court cases on the Ten Commandments, it seems to be moving back to that common sense understanding. But there are still ample federal trial courts, and some Courts of Appeal, which are eager to award the ACLU even more than the millions it has already received in taxpayer-funded fees.
The American Legion strongly supports the bills to eliminate such fee awards, as do other civic and religious organizations. The American Civil Rights Union (ACRU) notes that it is generally on the opposite side, legally, from the ACLU in "religious" public display cases.
About the Author: John Armor has briefed a dozen cases on behalf of the American Civil Rights Union, most of them on the First Amendment and in the Supreme Court. www.theacru.org John_Armor@aya.yale.edu