House bill would deny effective relief for Establishment Clause violations

By K. Hollyn Hollman

September 25, 2006

A measure scheduled for a vote Tuesday in the U.S. House of Representatives (H.R. 2679) threatens access to the courts and denies effective relief for violations for those who seek to enforce the Establishment Clause. The measure would severely weaken the Establishment Clause's religious liberty protections—keeping government from interfering with religion, guarding against the government's use of religion for political purposes, and ensuring that government does not act in a way that prefers one religion over another.

The legislation, which singles out Establishment Clause claims for special ill-treatment, limits the types of relief that may be granted and would prevent courts from awarding attorneys' fees to those who bring successful challenges under the Establishment Clause. It would thus undermine fundamental constitutional protections that have allowed generous religious expression in the public square by individuals and religious communities, while keeping the government from taking sides in matters of religion.

Religious expression is not threatened by the enforcement of the Establishment Clause, but it is protected by it. The Establishment Clause promotes religious freedom for all by protecting against government sponsorship of religion, leaving religion to flourish on its own merits. As Justice Sandra Day O'Connor put it in her last religious liberty opinion, "Voluntary religious belief and expression may be threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices." McCreary County, Kentucky v. ACLU (2005).

The protections of the First Amendment, however, are not self-enforcing. If someone is forced to sue the government to enjoy their constitutional rights, justice and fundamental fairness dictate they be able to recover their legal fees expended to do so.

Governmental entities should be encouraged to uphold constitutional values, not invited to ignore them. Yet, passage of the legislation would encourage elected officials to violate the Establishment Clause whenever they find it politically advantageous to do so. The bill limits the remedy available to plaintiffs bringing Establishment Clause lawsuits (those who can afford litigation costs without the possibility of reimbursement) to injunctive and declaratory relief. The lack of opportunity to recover attorneys' fees surely would have a chilling effect on Establishment Clause enforcement. Furthermore, if passed, it would mark the first time Congress has singled out one area of constitutional protections under the Bill of Rights and discouraged its full enforcement.