Take church, take state, mix well

defending the First Amendment against the Christian right ...

... because if Jews don't speak out, they'll think we don't mind

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Take church, take state, mix well

Opinon column by John Brummett, The Arkansas News Bureau, October 9, 2006

A couple of days before they became preoccupied with their resigned colleague who turned out to be a homosexual predator of minor congressional pages, House Republicans had pandered to their right-wing religious base.

They did their best to make it easier to mix their church and our state. That's the model that works so well in the Mideast.

House Republicans passed a bill saying this: If you file a federal court lawsuit against a public agency under the establishment clause of the First Amendment, which says the government shall make no law establishing a religion, and if you allege in that suit that the public agency has taken action to advance religion, and if you prevail in a court of law, then you may not receive reimbursement for your legal fees.

Practically every other lawsuit in practically every jurisdiction allows awarding of legal fees to the prevailing side. Currently, the U.S. Code permits them in establishment clause cases on the premise that persons without means ought to be able to seek justice if they feel aggrieved by religion in the public square.

But the Republican House of Representatives has declared that if you want to sue over the imposition of a religious symbol or practice by your government, then you may feel free to do so, of course, this being a free country, but you're on your own financially.

In other words, we're not going to pay your out-of-pocket costs in forcing us to abide by our own Constitution. We're not going to sponsor your lawyers. And if that deters you from bringing your suit, thereby making it easier for us to blow off the First Amendment and lather up our government with our conservative religious notions, all the better.

As with any outrage of this sort, the advocates managed by their rhetoric to make the measure seem almost reasonable.

Here's what House Republicans said to justify this affront: Often a public entity permits a religious expression that is harmless, or at least fails to establish a religion, and gets sued by dreaded left-wing secular humanists whose problem isn't a specific religion, but the very notion of God. Though the public entity has a perfectly defensible position legally, it chooses not to take the financial risk of losing the case and having to fork over precious money to the plaintiffs' attorneys. So, the public entity often chooses to limit its exposure by settling the matter by agreeing to cease the offending activity though the activity was perfectly fine. This legislation merely gives the public entity a level playing field to counter this harassment, and ends what has amounted to a kind of blackmail.

One other thing: Many of these suits are brought by the American Civil Liberties Union. House Republicans don't like the ACLU. They don't want to have to reimburse the ACLU.

I suspect the Senate will kill this bill, but not before I get a letter from the ACLU making a desperate appeal for money because the vital legal fees to which its fully entitled in its valiant fight to protect our liberties are under grave threat.

Polar political opposites, such as religious conservatives and the ACLU, feed on each other, you know. One gains strength when obliged by pandering politicians. The other goes out and raises more money to make the fight. Divisions deepen. Compromise solutions become more remote.

There's a better way. It is for religion to be kept separate from government, religiously. It is for persons to sue when they believe religion hasn't been kept out. It is for courts to rule based on the law. It is for the courts to exercise normal discretion on attorneys' fees.

The Republicans now have the Supreme Court they want. They ought to trust it to do its job.

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