SPEAKERS CONTENTS INSERTS
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28–385 PDF
2006
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
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
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J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel-Chief of Staff
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PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
STEVE KING, Iowa
TOM FEENEY, Florida
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
CHRIS VAN HOLLEN, Maryland
PAUL B. TAYLOR, Chief Counsel
E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
KIMBERLY BETZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
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C O N T E N T S
JUNE 22, 2006
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution
The Honorable John N. Hostettler, a Representative in Congress from the State of Indiana, and Member, Subcommittee on the Constitution
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Member, Subcommittee on the Constitution
WITNESSES
Mr. Rees Lloyd, Commander, District 21, The American Legion
Oral Testimony
Prepared Statement
Mr. Mathew D. Staver, Founder and Chairman, Liberty Counsel, Interim Dean, Liberty University School of Law
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Oral Testimony
Prepared Statement
Mr. Marc D. Stern, General Counsel, American Jewish Congress
Oral Testimony
Prepared Statement
Professor Patrick Garry, Associate Professor of Law, University of South Dakota School of Law
Oral Testimony
Prepared Statement
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
Additional Information submitted by Mathew D. Staver, Founder and Chairman, Liberty Counsel, Interim Dean, Liberty University School of Law
Additional Information submitted by Marc D. Stern, General Counsel, American Jewish Congress
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
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
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
Letter from Caroline Fredrickson, Director, American Civil Liberties Union dated June 22, 2006
Letter from the American Civil Liberties Union, et. al., dated June 22, 2006
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
PUBLIC EXPRESSION OF RELIGION ACT OF 2005
THURSDAY, JUNE 22, 2006
House of Representatives,
Subcommittee on the Constitution,
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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:]
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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.
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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.
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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.)
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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.
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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.
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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.
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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:
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.
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In the Ten Commandments Case in Alabama, the ACLU and sister organizations received $500,000 in attorney fees.
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.
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.
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.
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.
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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.
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.
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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.
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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.
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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.
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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.
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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.
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ATTACHMENT
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.''
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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?
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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?
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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——
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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.
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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.
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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.
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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?
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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.
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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?
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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.
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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.
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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?
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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.
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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——
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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.
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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.
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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.
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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.
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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?
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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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
Material Submitted for the Hearing Record
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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
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
ADDITIONAL INFORMATION SUBMITTED BY MARC D. STERN, GENERAL COUNSEL, AMERICAN JEWISH CONGRESS
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
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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