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Veterans' Memorials, Boy Scouts, Public Seals, And Other Public Expressions Of Religion Protection Act Of 2006

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Location: Washington, DC


VETERANS' MEMORIALS, BOY SCOUTS, PUBLIC SEALS, AND OTHER PUBLIC EXPRESSIONS OF RELIGION PROTECTION ACT OF 2006 -- (House of Representatives - September 26, 2006)

Mr. SMITH of Texas. Mr. Speaker, pursuant to House Resolution 1038, I call up the bill (H.R. 2679) to amend the Revised Statutes of the United States to eliminate the chilling effect on the constitutionally protected expression of religion by State and local officials that results from the threat that potential litigants may seek damages and attorney's fees, and ask for its immediate consideration.

The Clerk read the title of the bill.

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Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous materials on H.R. 2679, currently under consideration.

The SPEAKER pro tempore. Is there objection to the request of the gentleman from Texas?

There was no objection.

Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise today in support of H.R. 2679, the Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2006, which was introduced by our colleague from Indiana (Mr. Hostettler); and I would like to thank him for his leadership on this issue.

Mr. Speaker, this legislation was reported out of the House Judiciary Committee on November 7 by voice vote. Let me describe the unfair situation that this legislation addresses.

Today, under Federal law, attorneys' fees can be demanded in lawsuits against States or localities brought in under the Constitution's Establishment Clause.

These lawsuits could mandate, for example, that veterans' memorials must be torn down because they happen to have religious symbols on them; that the Ten Commandments must be removed from public buildings; and that the Boy Scouts cannot use public property.

The case law under the Establishment clause is so confused that States and localities know defending themselves in such lawsuits is simply unpredictable.

In 2005, for example, the Supreme Court issued two rulings on the same day that contained opposite holdings in cases involving the public display of the Ten Commandments. In one case, the court found a framed copy of the Ten Commandments in a courthouse hallway to be an unconstitutional establishment of religion, but in the other case the court upheld a Ten Commandments monument on the grounds of the Texas State Capitol. Not only were these two rulings different, but different constitutional tests were used in each case.

The threat to States and towns having to pay attorneys' fees in such cases, should they happen to lose at any level, often leads those States and localities to give up whatever rights they might have under the Constitution, even before such cases go to trial.

This bill will prevent the legal extortion that currently makes State and local governments, and the Federal Government, accede to demands for the removal of religious imagery when such removal is not even constitutionally compelled by the Constitution.

The Supreme Court has stated that ``the State may not establish a religion of secularism in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe.''

Contrary to that principle, current litigation rules are hostile to religion because they allow some groups to coerce States and localities into removing any reference to religion in public places.

This unfair result is made possible because 42 United States Code, section 1983, and 42 United States Code, section 1988, allow advocacy organizations to put the following choice to localities: either do what we want and remove religious words and imagery from the public square, or risk a single adverse judgment by a single judge that requires you to pay tens or hundreds of thousands of dollars in legal fees in a case you cannot afford to litigate.

Consequently, local governments are being forced to accede to the demands of those seeking to remove religious words or tear down symbols, and ban religious people from using the public square, even when allowing those uses might, in fact, be constitutional.

H.R. 2679 amends 42 U.S.C. so that attorneys' fees could not be awarded to prevailing parties in Establishment Clause cases. It amends 42 U.S.C. to make clear that while Establishment Clause cases can continue to be brought against State and local governments, they can be brought only for injunctive or declaratory relief.

This means that a court can still order that a State official or local government stop doing whatever was an alleged violation of the Establishment Clause.

One example of the unfairness this legislation would prevent is a recent case in which the County of Los Angeles was forced to remove a tiny cross from its official county seal that symbolized the founding of that city by missionaries. This tiny cross was on the seal for 47 years. This is costing the county $1 million, as it entailed changing the seal on some 90,000 uniforms, 6,000 buildings, and 12,000 county vehicles.

In Redlands, California, the city council reluctantly gave in to demands and agreed to change their official seal. But Redlands did not have the municipal funds to replace the seal. As reported by the Sacramento Bee, ``rather than face the likelihood of costly litigation,'' Redlands residents now ``see blue tape covering the cross on city trucks, while some firefighters have taken electric drills to `obliterate it' from their badges.''

Mr. Speaker, this is just the kind of injustice this bill seeks to correct.

Finally, Mr. Speaker, H.R. 2679 is clearly constitutional. It has a secular legislative purpose, namely that of preventing the use of the legal system in a manner that extorts money from State and local governments, and the Federal Government, and inhibits their constitutional actions. In doing so, this bill restores the original purpose of 42 U.S.C., which was to protect individual rights, not Establishment Clause claims.

H.R. 2679 also does not have the primary effect of either promoting or inhibiting religion. Rather, it simply removes the burdensome effects of the current legal rules.

So, again, Mr. Speaker, this bill is constitutional and does not prevent lawsuits from being filed.

I urge my colleagues to join me in supporting this legislation and protect the religious rights of all citizens.

Mr. Speaker, I reserve the balance of my time.

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Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, some opponents of this legislation are arguing that attorneys fees are needed and that establishment clause lawsuits will be deterred unless the people bringing these lawsuits have their attorneys fees paid. This is simply not true.

First, we are aware of no organization that has said they will not bring a good cause case under the establishment clause if they can't be awarded attorneys fees. In fact, the ACLU has said just the opposite. Peter Eliasberg, a staff attorney for the ACLU of Southern California, has said recently, ``Money has never been a deciding factor when we take cases.'' When asked specifically what the ACLU would do if attorneys fees in establishment clause cases were prohibited, he said, ``It wouldn't stop us from bringing lawsuits.''

Second, this section of the U.S. Code H.R. 2676 amends was never intended to apply to establishment clause cases. 42 U.S.C. 1988, which allows attorneys fees in cases brought under 42 U.S.C. 1983, was intended only to allow the award of attorneys fees under civil rights laws enacted by Congress after 1866.

The history of 42 U.S.C. is as follows: in Alaska Pipeline Service Company v. Wilderness Society, the Supreme Court held that Federal courts do not have inherent power to award prevailing party attorneys fees to remedy government violations of the law. The Court observed that the American rule, that is, the rule that each party bears its own attorneys fees ``is deeply rooted in our history and in congressional policy.''

Mr. Speaker, I want to make one more point, and that is to emphasize that under H.R. 2679, establishment clause cases can in fact continue to be brought against State and local governments for injunctive or declaratory relief, which means that the court can still order that a State official or local government stop doing whatever it was in alleged violation of the establishment clause

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Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, today under Federal law, attorneys fees can be demanded from the winning side in lawsuits against States or localities, or the Federal Government, brought under the Constitution's establishment clause.

Current litigation rules are hostile to religion because they allow some groups to force States and localities into removing any reference to religion in public places.

H.R. 2679 would prevent the legal extortion that currently forces State and local governments, and the Federal Government, to accede to demands for removal of religious text and imagery when such removal is not compelled by the Constitution.

Current laws allow plaintiffs to put the following choice to localities: either do what we want and remove religious words and imagery from your public square or risk a single adverse judgment from a single judge that requires you to pay tens or hundreds of thousands of dollars in legal fees in a case that you can't afford to litigate through the appeals process.

Mr. Speaker, local governments are being forced to accede to the demands of opponents, even when their actions are in fact constitutional.

The section of the U.S. code H.R. 2679 amends was never intended to apply to establishment clause claims. 42 U.S.C. 1988, which allows attorneys fees, was intended only to allow the award of attorneys fees civil rights laws enacted by Congress after 1866. We need to return to that original purpose and pass this legislation. I urge my colleagues to support it

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