The American Civil Liberties Union today expressed its dismay as the House Judiciary Committee approved H.R. 2679, the “Public Expression of Religion Act of 2005” (PERA). The bill would bar the recovery of attorneys’ fees to those who win lawsuits asserting their fundamental constitutional and civil rights in cases brought under the Establishment Clause of the First Amendment.
“If PERA were to pass, Congress would isolate and discourage enforcement of a specific piece of our Bill of Rights,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “PERA advocates are seriously misguided in their claim of defending religious freedom. This legislation would in fact weaken the very freedom they claim to be protecting. We are deeply disappointed in the committee’s decision to allow PERA to come to a vote.”
Stop the ACLU has a list of talking points in support of the bill, and the ACLU’s rhetoric in opposing it is weak, so let me give a few pointers.
1. Civil liberties must apply to all citizens, not all citizens who can afford to pay for court protection. Just like the US was not a free state until slavery was eliminated, even though the majority of its residents were free, so will it have no real civil liberties if those too poor to avoid a lawyer can’t have them.
2. If I sued someone in a civil court and won, he’d have to pay my legal expenses. Lawsuits against the state shouldn’t be any different; to privilege the government from having to pay implies that violations of freedom of speech and religion are lesser crimes than torts.
3. Historically, civil liberties litigation often relied on outside sources of funding, including governmental payouts. Black victims of racial oppression in the 1950s couldn’t pay legal expenses out of pocket.
4. If taxpayers have the right not to pay for lawsuits they disagree with the results of, then criminals have the right not to pay fines or serve jail terms they disagree with. When a court decides the government violated someone’s freedom, it’s incumbent on the government to comply with the court’s sentence. If you do the crime, you serve the time; similarly, if citizens collectively elect government officials who violate the Constitution, the citizens need to at least pay the litigants’ legal expenses.