Establishment Clause and Attorney's Fees

MOJ friend Pat Shrake asks :

Tom's recent postings on the MOJ blog regarding religion and legislation, combined with a news story I just saw about the Public Expression of Religion Act of 2005 (HR 2679), led me to wonder about a couple of things.

      1) What does the MOJ Blogosphere think of that proposed Act (which attempts to prevent payment of attorney fees for Establishment Clause challenges).

      2) Would there be any legal reason that Congress couldn't enact a similar ban on payment of attorney fees for abortion legislation challenges? I'm wondering about that because the South Dakota ballot question regarding its abortion ban will probably have some language indicating that the state might have to pay the attorney fees for the opponents of the ban (i.e. - Planned Parenthood) (see this story).

With respect to Pat's first question, my reaction to the proposed Public Expression of Religion Act is negative.

      1.  I'm puzzled and disturbed by the text of the bill as found on Thomas.gov, the Library of Congress website tracking legislation.  The link above is to Thomas, but it may not work, so I'm pasting the text here:

a) Civil Action for Deprivation of Rights- Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended--

(1) by inserting `(a)' before the first sentence; and

(2) by adding at the end the following:

`(b) The remedies with respect to a claim under this section where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion shall be limited to injunctive relief.'.

(b) Attorneys Fees- Section 722(b) of the Revised Statutes of the United States (42 U.S.C. 1988(b)) is amended by adding at the end the following: `However, no fees shall be awarded under this subsection with respect to a claim described in subsection (b) of section nineteen hundred and seventy nine.'.

      From the title "Public Expression of Religion," I had assumed that the concern of this bill was to rein in the Establishment Clause some, e.g. to hinder lawsuits that would try to strike down noncoercive or mildly coercive official religious expressions in public schools, on public property (creches, 10 Commandments, etc.).  But the text by its terms denies attorney's fees for any Establishment Clause suit under section 1983.  It would deny fees in a case where a government official plainly imposed religion on students in a coercive manner that most all would agree is impermissible -- for example, if a teacher gave a sermon on her interpretation of the Bible to her first-grade class every day.  (You could try to wrench that into a free exercise case, but the constitutional problem sounds much more naturally in the Establishment Clause.)  It would deny fees to any plaintiffs challenging government funding of religious institutions, which I suppose moves in a direction some of us would like to see.  But again it goes way too far -- no fees for a challenge to a funding law blatantly preferring Southern Baptists in Alabama or Mormons in Utah? -- and goes way beyond the category "public expression of religion" referred to in the title.

      It's disturbing enough that the bill would empower truly coercive official impositions of religion.  Equally disturbing is that it would cover claims by religious institutions that government interference in their internal affairs violates the Establishment Clause.  As we've touched on before here, in the wake of the decline of free exercise claims after Employment Division v. Smith, churches seeking to protect their autonomy may rely more and more on the religion-protective elements of the church-state separation derived from the Establishment Clause.

      So the title of the bill is a mistake or a fraud.  The text reaches far beyond the mere "public expression of religion" claims and would hamper claims that are much more compelling constitutionally and morally -- including some claims that you'd think the "pro-religion" types would like, which is puzzling.

      2.  All the above, of course, assumes for sake of argument that we should try to empower (by shielding from fee awards) all instances of  mere "public expression of religion" by government -- creches, 10 Commandments, prayers without direct coercion, etc.  For lots of reasons, familar to many of us here, I think that a fair number of such official expressions ought to be deemed unconstitutional, or deemed morally and theologically unwise by thoughtful Christians.  Therefore, I'm not happy with shielding from challenge everything that might be called a mere "public expression of religion."  But to reiterate, I don't have to rest on this point, it seems, because the text of the bill reaches other Establishment Clause claims that are unquestionably compelling constitutionally or morally.

      3.  I imagine there are constitutional questions about whether Congress can disfavor a class of claims in terms of procedure or remedies.  This has been debated in the context of jurisdiction-stripping proposals, with Tribe saying that stripping federal courts of jurisdiction to hear claims asserting a certain right is a presumptively unconstitutional burden on the right, and others disagreeing.  Even if Tribe were right, though, a denial of fees in federal court is less of a burden than closing the federal forum altogether (though the fee denial also lacks a specific constitutional authorization like Congress's power to control federal court jurisdiction).  Moreover, perhaps here the breadth of the text -- all Establishment Clause challenges -- would actually reduce the sense that Congress was trying to tip the scales against one particular set of plaintiffs or constitutional interests.  (But you couldn't make this last point in defense of fee stripping in the abortion context; that would be more clearly aimed at one distinct set of constitutional interests.)

      Tom