September 30, 2006


Legislating Violations of the Constitution (Erwin Chemerinsky, September 30, 2006,

With little public attention or even notice, the House of Representatives has passed a bill that undermines enforcement of the First Amendment's separation of church and state. The Public Expression of Religion Act - H.R. 2679 - provides that attorneys who successfully challenge government actions as violating the Establishment Clause of the First Amendment shall not be entitled to recover attorneys fees. The bill has only one purpose: to prevent suits challenging unconstitutional government actions advancing religion.

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. [...]

The attorneys' fees statute has worked well for almost 30 years.

Yet, somehow, the Republic fared just fine for nearly 200 years without it. Bet we'll be okay.

Posted by Orrin Judd at September 30, 2006 6:11 PM

Are you kidding me? This is huge. I'm speechless. I can't wait to see the drop off in cases filed.

Posted by: Pepys at September 30, 2006 7:06 PM

How'd they slip this past the ACLU? Won't it have the effect of forcing them to go out and get real jobs? (or at least protect real civil rights?)

"almost 30 years"

So at what point does a bad decision that the Left favors become so established that its irreversible, and why doesn't the same irreversability apply to traditions like marriage?

Posted by: Raoul Ortega at September 30, 2006 9:08 PM

. . . or abortion.

Posted by: obc at September 30, 2006 9:40 PM

Raoul: That's just what it is. A kind of Brezhenev doctrine: "What's mine is mine forever, and what's yours is negotiable."

Funny, I know of a certain RICO masquerading as a world religion that takes the same exact position.

Posted by: Lou Gots at September 30, 2006 9:47 PM

Of course Chemerinsky is upset - he's Valerie Plame's lawyer. Her 'case' doesn't involve the establishment clause or religious issues, but it's just another attempt to intimidate.

Wouldn't it be sweet if the ACLU decided to defend Armitage?

Posted by: ratbert at September 30, 2006 9:48 PM

Will the people recommending the law also be willing to apply it to law firms defending property rights?

Posted by: Joseph Hertzlinger at October 1, 2006 2:10 AM

There has to be some hitch, right?

If true, this is the end of Establishment Clause litigation.

It can't be true.

Posted by: Pepys at October 1, 2006 2:19 AM

Don't get too excited folks. The bill passed the House, not the Senate. Comes Nov., we'll have a different House and a different Senate. Everything has to start all over again. That means the Bill is worthless, not worth the paper it is printed on. WaPo is gathering the faithfuls now to oppose similar Bill in the next Congress. It ain't easy to undo 30 years of 'tradition'.

Posted by: ic at October 1, 2006 3:25 AM