Providing for Consideration of H.R. 2679, Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 20
PROVIDING FOR CONSIDERATION OF H.R. 2679, VETERANS' MEMORIALS, BOY SCOUTS, PUBLIC SEALS, AND OTHER PUBLIC EXPRESSIONS OF RELIGION PROTECTION ACT OF 2006 -- (House of Representatives - September 26, 2006)
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Mr. FRANK of Massachusetts. Mr. Speaker, the gentleman from Texas has been an eloquent, true conservative on the question of the entanglement of religion and government, because he expresses what every religious leader ought to share, the distrust of government if it seeks to intervene in religious matters.
Religion needs no protection from government in this country. Yes, there are times when you may need protection if there are people trying to interfere physically with your right to worship, but in a free society like ours, religion flourishes independently. It does not need the government's stamp of approval. What theology says is that for religion to be freely practiced, the government has to say it is okay, the government has to put forward a symbol.
So my friend from Texas has expressed a true conservative vision, but he did not fully describe how flawed this bill is. I guess he could not fully understand the reasoning. He said that, even if you win to decide attorney's fees. No, only if you win. Let me read from the bill.
``Notwithstanding any other provision of law, a court shall not award reasonable fees and expenses of attorneys to the prevailing party on a claim of injury consisting of the violation of a prohibition against the establishment of religion brought against the United States.''
Now, this is not the most actually honest piece of legislation I have ever seen. They describe some of what they are talking about: a veterans memorial, not a veterans cemetery. By the way, there is no prohibition anyone has ever thought of the families of any veterans to put any religious symbol he or she wants on that grave, except there was an effort to block a victim who wanted to put the symbol on, but they prevailed as, of course, they have to under this theory not just of this bill but of freedom of religion.
But it says the Boy Scouts, a Federal building containing religious words, but it also says this bill shall include but not be limited to these examples. In other words, the examples are there because they kind of add a little spice to the bill because, understand what this bill would purport to do.
Any violation of the Establishment Clause, any activity by a State or a Federal agency to establish a religion, to favor a particular religion, this is not limited to signs in the cemetery. It says any violation of the Establishment Clause, if you win you do not get your attorney's fees.
Now, the gentleman from Georgia correctly said this bill does not take away rights. I understand that. I also understand that there is a lot of frustration on that side of the aisle that they cannot. They would like to take away the rights. This goes as far as they can diminishing them.
The gentleman says, well, the ACLU will be able to do it. Has he become an agent of the ACLU, Mr. Speaker? Is he interested in giving the ACLU a monopoly on bringing these lawsuits? I am not. Whether or not the ACLU is bringing the lawsuit is not determinative. What about the right of an average citizen who might disagree with the ACLU and who would not be able to pay the attorney's fees? And, again, it only applies if you win.
Now, I know people on the other side have had a phrase that they like in tort law called ``loser pays.'' That may be controversial, but this one is a lulu. This is winner pays. Bring a lawsuit based on a blatant violation of the Establishment Clause, not limited to the examples here. It is what the language says. Bring a lawsuit against a State or a city or a county or the Federal Government that favors a particular religion, that says we are going to teach this particular religion's tenets in the school and win the lawsuit and get no money.
Well, now, obviously that is because they do not trust the courts. They think the courts cannot be given the freedom to do this. The United States Supreme Court consists of nine members, seven of them appointed by Republicans. Six, because I know they do not count Gerald Ford, Mr. Speaker. He is kind of suspiciously liberal by Congress Republican standards. But Ronald Reagan, George Bush and George Bush have appointed six of the nine justices.
Now, what this bills say is if the appointees of George Bush, George Bush and Ronald Reagan decide that there has been a clear-cut violation of the Establishment Clause, the person who brought the lawsuit cannot get legal fees. It is probably right that the ACLU would not be retarded, but, as I said, I agree with the ACLU on many issues. I am not interested in promoting them a monopoly over litigation in the United States.
I want to address this notion, too, well, you have freedom of religion, not freedom from religion. That is a fundamental misunderstanding of the Constitution and history. People who came to this country, some of them were objecting to being forced to profess other religions or support other religions. Religious freedom means that your religious practice, whether it exists or does not exist, is none of the government's business. The notion that your right not to be religious does not exist is appalling to me.
The gentleman from Georgia said you have freedom of religion, not from religion. Agnostics, atheists, people whose religion you may not think worthy, they do not have freedom in this country? What kind of a distortion of the principle of freedom is that?
The notion that you do not have freedom from religion means, literally, I guess, that you can be told, okay, look, you have got to pick a religion, pick one; you cannot have none whatsoever. That is not the American Constitution.
What we have here is not going to pass, we understand that, and I have to say I do not fully agree with my colleagues when they lament the fact that we are wasting time. Because given the penchant of the majority for atrocious legislation, I would rather have them waste their time than use it on something that might become law. Because when they do make laws, they make bad ones. So wasting time is better.
Although I do find it very offensive that in defense of constitutional principles we once again have a closed rule. Democracy to them is a spectator sport. They want to look at it somewhere else, they want to watch it in other countries, but not practice it on the floor of the House. A closed rule on a fundamental matter of constitutional principle is an abomination.
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Mr. FRANK of Massachusetts. Well, I would ask the gentleman, he says he is not for keeping these things from going to court. Am I incorrect, I had thought that the gentleman from Indiana, when we were on the committee together, before I took leave and on the floor, had supported legislation in the area of church and state taking jurisdiction away from the courts.
Would the gentleman reconcile for me his support of legislation that would remove jurisdiction from the Federal courts, in many cases, with his support for letting the cases go to court?
Mr. HOSTETTLER. Taking back my time, because in both cases the United States Constitution grants Congress the exclusive explicit authority to do those things, and that is why I am saying this is the exclusive authority of the United States Congress. We have that authority. We do not have to be in one particular area allowing the court to consider cases. In other cases, we can allow the cases to go to court. That is what the legislative process is about.
And the gentleman has heralded the idea of democracy and the legislative process. Today, we continue to exercise that.
Mr. McGOVERN. Mr. Speaker, I yield the gentleman from Massachusetts (Mr. Frank) 3 minutes.
Mr. FRANK of Massachusetts. Well, Mr. Speaker, the gentleman from Indiana did not reconcile the position. He said, we are Congress, and if we want to take these cases away, we can. I understand that, but that is not consistent with saying they ought to go to court.
Secondly, there are two parts to this bill. One says you should not have monetary damages. That is relevant to his argument about intimidation. But the other section says if you bring a claim based on a violation of the establishment clause, no matter how blatant, if a county or city or any other government entity formally prefers one religion over others, one denomination over others, and provides funding for that, if you bring a lawsuit challenging that and you win, you don't get attorneys fees.
And the answer again is, well, the ACLU can do it. Again, I am not letting only the ACLU be involved here. And that has nothing to do with intimidation of the county. The question is, and, again, it is only if you win. Let me read what it says: ``No court shall not award reasonable fees and expenses to the prevailing party on the claim of injury consisting of the violation of a prohibition of the establishment clause.''
Mr. HOSTETTLER. Mr. Speaker, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from Indiana.
Mr. HOSTETTLER. And I can understand that concern, but let me remind you that the awards act came in 1976. In 1962, the United States Supreme Court struck down the notion of school prayer without the attorneys fees award act. In 1963, the Supreme Court struck down Bible reading in public schools, without the attorneys fees award act. This bill will simply allow the cases to actually continue to go to court.
Mr. FRANK of Massachusetts. That is just nonsense, Mr. Speaker. Absolute nonsense.
There is nothing that keeps the county or the city from defending because the other side will get attorneys fees. The gentleman is trying to collapse a couple of things. The threat of monetary damages arguably would keep you from going to court, but a denial of attorneys fees to an individual plaintiff who does not happen to have an organization, that is not the fact that the other side may get attorneys fees if they win.
And, remember, the gentleman suggested that people were being deterred from bringing lawsuits that they could win, or defending lawsuits they could win by the threat of what would be the expense. But in this case, you only get the fees if you win. This only denies successful plaintiffs the fees.
So that is what this bill does. It has nothing to do with keeping it from going to court. It is trying to discourage things from going to court. I guess what they say is, you can't bring such a lawsuit unless you get the ACLU. If you are an individual that has a different theory about this, and you don't have the money for an attorney, you can't go to court. And the gentleman said, well, that is whatever happened before the 1976 act. Singling out one class of cases for the denial of attorneys fees when every other one gets them does seem to me an odd way to run a constitution. This right and that right.
And, by the way, no one should think that if this ever became law, which, of course, no one thinks it will, that it would stop here. There would be other unfavored rights where a minority would be at risk, where you would be denied legal fees. So let's not collapse two issues. This has no deterrent effect, the part about attorneys fees. It is an effort on the other side to keep people out of court in case they might win.
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Mr. FRANK of Massachusetts. Well, I appreciate this eloquent defense of his bill that it doesn't do very much, but I do question that. And I understand your concern about monetary damages; but if the restriction on attorneys fees only for the party that wins in a case doesn't do anything, what is it in here for?
Mr. HOSTETTLER. And that is perfect, so the gentleman can support my bill. I appreciate that, which is why it does something very important, which is why the gentleman and his cohorts are opposing the bill, because they understand that by removing the chilling effect on these closed-door sessions with county commissioners, with schoolteachers, with mayors and the like, without that ability for the ACLU and others to go into these closed-door sessions and say, Mayor, we are going to sue you, we are going to win, and you are going to have to pay our attorneys fees, that without that chilling effect, these cases will go to court.
Mr. McGOVERN. Mr. Speaker, I yield an additional 1 minute to the gentleman from Massachusetts (Mr. Frank).
Mr. FRANK of Massachusetts. I feel like I am in Dickens, the artful dodger is apparently about to leave.
I repeat the question: If banning attorneys fees from people who win a lawsuit based on a blatant violation of the establishment clause, which this bill does, doesn't do anything, what is it in there for? Is it just an expression of dislike for people who happen to enforce a part of the Constitution that people on the other side don't like? What is it in there for?
Mr. HOSTETTLER. Mr. Speaker, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from Indiana.
Mr. HOSTETTLER. From the gentleman's perspective, because of the benign nature and virtual nonutilitarian nature of the bill, please support it.
Mr. FRANK of Massachusetts. Would the gentleman please answer the question? He asked me to yield. Why are you banning attorneys fees from people who win a lawsuit based on a blatant violation of the establishment clause? Why are you doing that?
Mr. HOSTETTLER. Because a blatant violation is determined by a court of law.
Mr. FRANK of Massachusetts. But the gentleman is for letting it go to court, I thought.
Mr. HOSTETTLER. We are letting them go to court. That is exactly right, we are going to let them go to court. A blatant violation is determined by a court of law and not by ACLU attorneys behind closed doors.
Mr. FRANK of Massachusetts. And only under this bill, if you bring a lawsuit and you win, and the court decides that you are correct and there was a blatant violation of the establishment clause, you don't get your attorneys fees, and I still don't understand why.
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Mr. FRANK of Massachusetts. Historically, I know the gentleman from Indiana previously had a location issue on Mr. Jefferson, but he was in France during the debate on the Constitution. You said he was in France during the debate on the Bill of Rights. I don't think that is accurate. I know there were slow boats then, but I think he had gotten back by that time.
Mr. HOSTETTLER. He was not in France during the ratification by the States of the Bill of Rights, but he was in France during the approval by the Congress of the Bill of Rights, which took place 2 years prior.
Mr. EDWARDS. Taking back my time, if the gentleman is trying to suggest that Thomas Jefferson didn't endorse the principle of church-state separation, I would remind my colleague it was Thomas Jefferson who was the first American to use the term ``wall of separation between church and state.''
I would reiterate my key points.
Mr. FRANK of Massachusetts. Mr. Speaker, will the gentleman yield?
Mr. EDWARDS. I yield to the gentleman from Massachusetts.
Mr. FRANK of Massachusetts. I thank the gentleman. History gets misused and used as a tool, but I think one thing is very clear. The people who are pushing this, had they been contemporaries of Thomas Jefferson wouldn't have been great fans of his.
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