Blur Church/State By Cutting Off $$$

By Justin Gardner | Related entries in Law, Religion

I have to hand it to the religious right. They do their homework and this is a very sneaky, effective way to limit suits against religious encroachment on public systems.

Erwin Chemerinsky has the story:

A federal statute, 42 United States Code section 1988, provides that attorneys are entitled to recover compensation for their fees if they successfully represent a plaintiff asserting a violation of his or her constitutional or civil rights. For example, a lawyer who successfully sues on behalf of a victim of racial discrimination or police abuse is entitled to recover attorney’s fees from the defendant who acted wrongfully. Any plaintiff who successfully sues to remedy a violation of the Constitution or a federal civil rights statute is entitled to have his or her attorney’s fees paid. [...]

Despite the effectiveness of this statute, conservatives in the House of Representatives have now passed an insidious bill to try and limit enforcement of the Establishment Clause of the First Amendment, by denying attorneys fees to lawyers who successfully challenge government actions as violating this key constitutional provision. For instance, a lawyer who successfully challenged unconstitutional prayers in schools or unconstitutional symbols on religious property or impermissible aid to religious groups would — under the bill — not be entitled to recover attorneys’ fees. The bill, if enacted, would treat suits to enforce the Establishment Clause different from litigation to enforce all of the other provisions of the Constitution and federal civil rights statutes.

Such a bill could have only one motive: to protect unconstitutional government actions advancing religion. The religious right, which has been trying for years to use government to advance their religious views, wants to reduce the likelihood that their efforts will be declared unconstitutional. Since they cannot change the law of the Establishment Clause by statute, they have turned their attention to trying to prevent its enforcement by eliminating the possibility for recovery of attorneys’ fees.

To the religious right I say go ahead and keep trying to undermine the Constitution. See if you can get away with it. And then see if those who try to push your agenda through can stay in power and effect any real, constructive change.

This entry was posted on Saturday, September 30th, 2006 and is filed under Law, Religion. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

5 Responses to “Blur Church/State By Cutting Off $$$”

  1. probligo Says:

    Justin, just type “exclusive brethren” (including the quotes) into any news search engine running in Australia and NZ and follow…

    Truly, it is worse than I ever imagined. I thought Bishopness Brian Tamaki and his Destiny Church was the worst that we might have to deal with.

    What is appearing now is a very distant echo from the isolationist minority religious sect that lived in a fairly remote valley not far away, and who refused the local (government) school permission to teach them reading even, unless it was reading from the Bible.

  2. DosPeros Says:

    Any plaintiff who successfully sues to remedy a violation of the Constitution or a federal civil rights statute is entitled to have his or her attorney’s fees paid.

    Umm, no – but as a plaintiff’s oriented lawyer, I wish it were an “entitlement”.

    The remedial provision in question is 42 USC 1988(b) and it reads: “…the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs…” “Discretion” & “may” and “reasonable” do NOT equated to “entitle[ment] to have his or her attorney’s fees pad.”

  3. Lewis Says:

    What horrible people, those evil Christian conservative right wingers! They’ve adopted the same tactics as the secular left – using the government to advance their religious views. Surely they will burn in hell for that.

  4. Meredith Says:


    What religious views have the secular left used the gov’t to advance? The Consitution calls for the government to make no law that advances any particular religion, to the exclusion of all others, so which one is the left trying to advance?

  5. BrianOfAtlanta Says:

    To the religious right I say go ahead and keep trying to undermine the Constitution.

    Considering the fact that the Constitution had been “undermined” for nearly 200 years before U.S.C. 42,1988 became law, I think it’s safe to say the Constitution will survive this.

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