Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the gentleman from Texas has a complaint, but his complaint is not against the American Civil Liberties Union, nor is it against section 1983 of the Code. His complaint is against the first amendment of the United States Constitution.
The authors of this bill do not like the protection the courts have given to plaintiffs who allege that their constitutional rights against the establishment of religion in the first amendment have been violated. So he says let us be punitive for winning.
The law says that anyone who brings a lawsuit against the government, Federal, State or local government, and alleges that that government, under color of law, is violating their constitutional rights, if that plaintiff wins, if the court says, and it is not just one judge because it is appealable up to the Supreme Court, but if the court says, yes, Mr. Plaintiff, that government official, mayor so and so, police commissioner so and so, or whatever violated your constitutional rights, you can get damages if you have, in fact, been damaged, monetary damages as you can in any civil lawsuit. You can get an injunction, stop, do not keep doing it, do not keep violating constitutional rights. And you can apply for attorneys' fees.
That is a very important provision. Because these lawsuits can be expensive, and if you cannot get attorneys' fees, it is very difficult to sue, even if you have a very well-established violation of your constitutional rights, and these attorneys' fees are only if you win the lawsuit.
So what does his bill come along and say? Only for establishment cases. We do not like establishment cases. We do not like the Establishment Clause of the Constitution. Only for Establishment Clause violations, you cannot get damages if you prove the government has violated your rights. Only for Establishment Clause cases, you cannot get attorneys' fees if you prove the government has violated your rights.
For any other deprivation of rights under law, violation of the free exercise clause of religion, violation of freedom of speech, freedom of press, whatever, you can get damages; you can get attorneys' fees.
This puts at a disadvantage in enforcing the law one class of people, religious minorities, basically, people who will sue the government for violating their rights under the Establishment Clause.
In more than a century, nothing like this has ever been done. We have always expanded rights under section 1983, our Nation's oldest and most durable civil rights laws. We have never curtailed them.
Just to be sure, I checked with the Congressional Research Service; and I place their memorandum to that effect in the RECORD at this point.
CONGRESSIONAL RESEARCH SERVICE,
July 25, 2006.
To: House Judiciary Committee.
From: Kenneth R. Thomas, Legislative Attorney, American Law Division.
Subject: Scope of the Proposed Public Expression of Religion Act of 2005.
The memorandum is in response to your request to examine the scope of H.R. 2679, the Public Expression of Religion Act of 2005, which would limit the relief available and the payment of attorney's fees for cases brought under 42 U.S.C. §1983 when the underlying case involves the Establishment Clause of the First Amendment of the Constitution. Specifically, you requested an analysis of whether Congress had previously limited the types of damages available under 1983 as regards particular constitutional provisions. Second, you requested an analysis as to whether the bill would be limited to the public expression of religious faith in a governmental context, or whether this bill would also affect other Establishment Clause issues.
42 U.S.C. §1983 addresses a broad array of rights and privileges protected by the United States Constitution. It provides that:
``Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.''
The proposed Public Expression of Religion Act of 2005 would appear to limit certain litigants from receiving either damages or attorneys fees. Specifically, the proposed Act provides that ``[t]he remedies with respect to a claim under [42 U.S.C. §1983] where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion shall be limited to injunctive relief.'' The bill also amends 42 U.S.C. 1988(b) to provide that no attorney's fees shall be awarded with respect to a claim under 42 U.S.C. §1983 regarding the Establishment Clause.
42 U.S.C. §1983 was first passed in 1871. Although it has been recodified and relatively recently amended, it has not been substantially altered since 1871. It does not appear that it has been amended so as to limit the type of damages available to litigants who choose to utilize its provisions regarding particular constitutional issues. Whether such a limitation is constitutional is beyond the scope of this memorandum.
The provisions of the proposed Public Expression of Religion Act of 2005, despite its title, would appear to include both the public expression of religion under governmental auspices and a variety of other issues. The types of cases which the bill would cover would appear to include, among other things, cases involving financial assistance to church-related institutions, governmental encouragement of religion in public schools (prayers, bible reading), access of religious groups to public property, tax exemptions of religious property, exemption of religious organizations from generally applicable laws, Sunday closing laws, conscientious objectors, regulation of religious solicitation, religion in governmental observances, and religious displays on government property.
It is especially ironic because my friends who today are supporting this bill only yesterday brought forward a bill that would expand the rights of real estate developers, garbage dumps and adult bookstores under section 1983. So the rights they would give to adult bookstores, we would take away from people whose religious freedom rights are violated. That is, I guess, what has become of the party of Lincoln. That is their civil rights agenda in 2001.
This bill is aimed at people who have proved in court that the government has violated their religious liberty protected by the first amendment. By denying them their normal relief for monetary damages and the bill to petition for attorneys' fees, we will deny them not just their day in court, we would also be telling government officials everywhere that Congress thinks it is okay for them to violate people's religious liberty with impunity.
It is especially galling after everyone here, well, almost everyone, has taken a victory lap for reauthorizing the Voting Rights Act, in which we actually enhanced the attorneys' fees provisions by adding a right to be awarded the cost of expert witnesses in addition to the right to be awarded the cost of lawyers.
As the Judiciary Committee stated in its report on the Voting Rights Act, ``The committee received substantial testimony indicating that much of the burden associated with either proving or defending a section 2 vote dilution claim is established by information that only an expert can prepare. In harmonizing the Voting Rights Act of 1965 with other Federal civil rights laws, the committee also seeks to ensure that those minority voters who have been victimized by continued acts of discrimination are made whole.''
But here we want to say that people with minority religious views who are victimized by government breaking of the Establishment Clause, they shall not be made whole because we do not like them.
I would warn my colleagues that starting down this path will only lead to depriving other unpopular groups of their civil rights remedies. It wasn't so long ago that attacks on unelected judges and ACLU lawyers, as we heard a few moments ago, stirring up trouble, was the common language of the militant segregationists. It is distressing, and sadly ironic, that today that language is being used to gut the Nation's oldest and most durable civil rights law.
It is all chillingly reminiscent of the infamous 1963 inauguration speech of Alabama's Governor George Wallace who said, ``From this day, from this hour, from this minute we give the word of a race of honor that we will tolerate their boot in our face no longer, and let those certain judges put that in their opium pipes of power and smoke it for what it is worth.'' I think the Governor would feel right at home in this House today.
Or consider the notorious ``Southern Manifesto'' signed by Members of both houses in defiance of the Supreme Court's school desegregation decision several decades ago:
``We regard the decisions of the Supreme Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.''
Does any of this sound familiar? I would observe that abuses of judicial power are in the eyes of the beholder.
This is not to suggest that any Members of this House are segregationists. Far from it. I only recall the overheated rhetoric of a half century ago to urge Members to take care with their words. Unpopular minorities and decisions defending the rights of unpopular minorities against the will of the majority have always inflamed passions. People have always questioned our system of checks and balances, and especially the role of the independent judiciary.
Recourse to an independent judiciary is a bulwark of our liberties. We recognize this by allowing people to go to court and sue the government and force the government to respect their rights. We recognize this by allowing people victimized by the government to receive damage awards when the government has done damage. We recognize this by ensuring, just as we have done with the Voting Rights Act, that people who can prove their rights have been violated can get attorneys fees paid so that people with valid claims will be able to afford to go to court to vindicate those claims.
I would remind my friends that this legislation is not limited to religious symbols in public places. This legislation applies to any violation of the establishment clause. This would include forced prayer. If government forcing your child to say a prayer of another faith is not the establishment of religion, then the phrase has no meaning. If government at some locality decided that that locality was Hindu or Muslim or Wicca, or whatever, pick another unpopular or less popular religion, and all children in school must start the day by saying the profession of faith for that religion, you could go to court. It is a violation of the establishment clause. But under this, you couldn't get damages. You couldn't get attorneys fees. You would have to bear the burden of that lawsuit by yourself.
I want to lay to rest right now the red herring, the lie, that was put into this bill when its title was changed from the Public Expression of Religion Act to the Veterans' Memorials, Boy Scouts, Public Seals, and other Public Expressions of Religion Protection Act of 2006. I know that many sincere people have been misled into believing the ACLU, for example, wants to use section 1983 to force the removal of religious symbols from the individual gravestones of thousands of veterans across the Nation and around the world, hence the new title, hence the citation of these specific instances in this bill.
We received testimony from the American Legion to this effect and Members have received a great deal of mail on the subject because people are spreading misinformation. This assertion is a myth. If you are voting for this bill because you are concerned about national cemeteries, don't bother. Neither the ACLU nor anyone else has ever brought such a lawsuit.
As a matter of fact, I have a letter here from the ACLU taking the opposite position: that individual veterans have a first amendment right to have a religious symbol of their or their family's choice on their gravestones.
Mr. Speaker, it is an election year, and the months leading up to elections have long been known as the ``silly season.'' We all understand that. But get an earmark for a bridge to nowhere or something, and leave the first amendment and our civil rights out of it.
Mr. Speaker, I reserve the balance of my time.