Court-stripping and Legislating Against the First Amendment
Below in this section: A constitutional amendment to undo the First Amendment | State laws to strip courts of jurisdiction over religious issues | PERA: Bill designed to deny ACLU legal fees | Miscellaneous federal court-stripping proposals
The Pledge of Allegiance "protection" act
Reform Jewish Leader Condemns House Passage of Court-Stripping Bill
Pelavin: Today’s House adoption of the so-called “Pledge Protection Act” is a shameful effort to strip our federal courts of their ability to uphold the rights of all Americans.
Religious Action Center, July 21, 2006
Washington DC July 19, 2006 - In response to today’s House passage of the so-called “Pledge Protection Act,” Mark J. Pelavin, Associate Director of the Religious Action Center of Reform Judaism, issued the following statement:
Today’s House adoption of the so-called “Pledge Protection Act” is a shameful effort to strip our federal courts of their ability to uphold the rights of all Americans. By removing the jurisdiction of federal courts, including the Supreme Court, from cases involving the Pledge, this legislation sets a dangerous precedent: threatening religious liberty, compromising the vital system of checks and balances upon which our government was founded, and granting Congress the authority to strip the courts’ jurisdiction on any issue it wishes. Today, the issue was the Pledge of Allegiance, but tomorrow it could be reproductive rights, civil rights, or any other fundamental concern. Continue
Why the Republicans waved the flag amendment this week
By Bob Dart, The Oxford Press (Oxford, Ohio), June 28, 2006
WASHINGTON - By a single vote, the Senate failed to pass a constitutional amendment Tuesday to give Congress the power to protect the American flag.
The 66-34 vote was one short of the two-thirds majority needed to send the amendment to the state legislatures, where ratification was likely. Continue
Americans United Blasts House Passage Of 'Pledge Protection Act'
'Court-Stripping' Measure Jeopardizes The Constitutional Rights Of Religious Minorities, Says Americans United's Lynn
News release, Americans United for the Separation of Church and State, July 19, 2006
The U.S. House of Representatives today passed a bill that would severely limit the rights of religious minorities, charges Americans United for Separation of Church and State.
By a vote of 260 to 167, the House approved the so-called “Pledge Protection Act of 2005.” H.R. 2389 would strip the Supreme Court and other federal courts of the authority to hear legal challenges dealing with the Pledge of Allegiance. Continue
Americans United Welcomes Defeat Of 'Pledge Protection Act'
Dangerous 'Court-Stripping' Measure Fails In Committee On Tie Vote
News Release, Americans United for the Separation of Church and State, June 28, 2006
Americans United for Separation of Church and State today hailed the House Judiciary Committee’s defeat of a bill that would have stripped the federal courts of their ability to hear cases involving the Pledge of Allegiance.
The so-called “Pledge Protection Act” (H.R. 2389) failed on a 15-15 vote this morning. One Republican, U.S. Rep. Bob Inglis of South Carolina, voted with 14 Democrats to scuttle the measure. Continue
Memo to Congress: Judges must get out of our faith
Lawmakers suggest 'gift' to courts: No more religious speech disputes
By Bob Unruh, WorldNetDaily, December 19, 2006
The Louisiana state Legislature has announced a desire to give a "gift" to the federal judiciary, especially those members who of late have debated the constitutionality of "Merry Christmas" greetings and other acknowledgments that there is, actually, a reason for the season.
"Whereas, the Louisiana Legislature recognizes that this is the season to give gifts and be charitable and an integral part of the season is the inclusion and acknowledgment of Jesus Christ," state senators said, "Therefore, be it resolved that the Legislature of Louisiana memorializes the Congress of the United States to adopt the Constitution Restoration Act, thereby reducing the caseload of our federal courts by removing from their jurisdiction any and all cases involving the acknowledgment of God as the sovereign source of law, liberty, or government as authorized by Article III, Section 2, of the United States Constitution."
The issue, according to a retired Louisiana judge who now is a consultant, was approved unanimously in both houses of the Legislature, which was meeting in special session to deal with budgetary issues. Continue.
Bill would halt legal fees for ACLU in church-state cases
Baptist Press, Dustin McNab, March 19, 2007
It’s not fair for taxpayers to pay the legal bills for organizations such as the American Civil Liberties Union (ACLU), says Sen. Sam Brownback.
The Kansas Republican has reintroduced the Public Expression of Religion Act (PERA), which seeks to change how attorneys’ fees are granted in cases involving the Establishment Clause of the First Amendment.
Current law allows attorneys to recover their fees in many kinds of cases, including suits against government dealing with civil rights and the Establishment Clause, which says "Congress shall make no law respecting an establishment of religion." For instance, if an attorney wins an Establishment Clause case asking a city government to remove the Ten Commandments from a courthouse, the city may be required to pay for the removal and the legal fees for both sides of the case. Continue
Legion Lauds Reintroduction of PERA in 110th Congress
American Legion news release, January 31, 2007
INDIANAPOLIS, Jan. 31 /PRNewswire-USNewswire/ -- The leader of the nation's largest wartime veterans' organization today applauded Sen. Sam Brownback (R-Kan) for reintroducing the Veterans' Memorials, Boy Scouts, Public Seals and Other Expressions of Religion Protection Act of 2007 (S. 415) in the U.S. Senate, a measure that would stop the award of taxpayer dollars in legal fees to groups filing lawsuits against veterans' memorials and public displays of religion.Continue.
American Legion Calls on Lame Duck Senate to Pass 'Religious Expression' Bill
INDIANAPOLIS, Nov. 3 /Christian Newswire/ -- The leader of the nation’s largest veterans organization today called for a full mobilization of America’s veterans, indeed, all Americans to contact their U.S. senators to pass the Veterans’ Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2006, S. 3696 before the 109th Congress adjourns. Continue.
House of Representatives passes bill dealing blow to Establishment Clause
"Public Expression of Religion Act" denying attorney fees a pre-election gift to religious right "base"
Background by JewsOnFirst.org, September 30, 2006
On September 26, 2006 House Republicans passed a measure that would deny attorney fees to plaintiffs who successfully sue a government for violations of church-state separation. Limiting the courts to only "injunctive and declaratory" relief, the "Public Expression of Religion Act" also denies damages to plaintiffs such as the Delaware families who endured religious persecution when they pressed for policy changes. (Please see our reports.)
Republicans passed the legislation, H.R. 2679, to please their religious-right base, presenting the measure as a way to stop the ACLU from "profiting" at public expense. (The offensive graphic from the Family Research Council is intended to "illustrate" that point.)The bill is unlikely to survive the Senate or the end of the current session; nevertheless, its passage dismayed Jewish organizations and supporters of the First Amendment. Please click here for reports on reaction to the measure.
Take Action: Contact your elected representatives
Oppose the Passage of the Public Expression of Religion Act
Religious Action Center of the Reform Movement, September 17, 2006
With the passage of the Civil Rights Attorneys’ Fees Award Act of 1976 Congress recognized the importance of ensuring that Americans of all financial means could afford to have their Constitutional rights upheld. Under that law, reasonable attorney’s fees and costs are awarded to parties who prevail in actions brought to enforce their rights. The fear was that if the cost of private enforcement was too high for individuals, litigation to uphold rights would not occur. This practice has now been standard for three decades. Yet PERA would eliminate the awarding of those fees in cases applying to the Establishment Clause of the First Amendment to the U.S. Constitution. Click here to go to the Religious Action Center's website and action.
Americans United Condemns House Committee Passage Of Bill Cutting Off Attorneys' Fees In Church-State Cases
Measure Is More Pandering To The Religious Right, Says AU's Lynn
News release, Americans United for Separation of Church and State via Common Dreams, September 7, 2006
WASHINGTON - September 7 - Americans United for Separation of Church and State today blasted the House Judiciary Committee’s approval of a bill that would make it more difficult for Americans to challenge church-state violations in court.
The so-called “Public Expression of Religion Act” targets those who stand up to church-state infringements by government officials. The measure, H.R. 2679, denies legal fees and out-of-pocket expenses to plaintiffs who win lawsuits under the First Amendment’s Establishment Clause, which bans the government from promoting religion.
The committee passed the bill on a voice vote today, and it is now headed to the House floor. Continue.
War Vets Call on Americans to Urge Congress to Preclude Attacks on Veterans Memorials
News release, American Legion via Standard Newswire, September 12, 2006
INDIANAPOLIS, Sept. 12 /U.S. Newswire/ -- Following markup of a bill by the House Judiciary Committee last week that would stop courts from awarding taxpayer dollars in attorney's fees in litigation against religious symbols on veterans memorials, the leader of the nation's largest wartime veterans organization today called on all Americans to urge their congressman and senators to pass it and a companion measure in the Senate.
"With only 18 legislative days left in this Congress before the election recess, I ask every American that cherishes the religious heritage given to us by our Founding Fathers to take a minute today to call their Congressman and both Senators," said American Legion National Commander Paul A. Morin. "Legal attacks against veterans memorials that display religious symbols must not be rewarded by judges reaching into taxpayer pockets to enlarge the coffers of organizations such as the American Civil Liberties Union (ACLU) to encourage more lawsuits against our traditions and memorials." Continue.
Take church, take state, mix well
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. Continue.
Hearings held on "Public Expression of Religion Act"
Bill would limit attorneys fees in cases challenging government-sponsored religion
by JewsOnFirst.org, June 28, 2006
The House Subcommittee on the Constitution held hearings June 22nd on a bill designed to ward off the chill of lawsuits over government-sponsored prayers and religious displays by denying attorneys fees and limiting damages to litigants.
Religious right backers of the bill are stating as received wisdom that the ACLU is only in it for the money. The American Legion representative insisted in his testimony that the ACLU pursues First Amendment litigation to profit from court-awarded fees.
According to Focus on the Family, Rees Lloyd of the American Legion testified: "We're told that the ACLU and others will not fight battles for what they believe to be the civil rights under the Establishment Clause unless they are enriched at taxpayer expense."
The ACLU of Southern California told JewsOnFirst that only about ten percent of its revenue comes from court awarded fees. And some of those fee come from defending the constitutional rights of the religious right -- for example, Rev. Jerry Falwell and Grover Norquist. The rest of the ACLU's operating funds come from donations. Marc Stern, testifying at the hearing for the American Jewish Congress, called Lloyd's statement "demagoguery."
The bill's author, John Hostettler (R-Indiana), describes the purpose of his "Public Expression of Religion Act of 2005" (H.R. 2679), introduced in May 2005 and cosponsored by 40 like-minded Republicans, as being "to limit the remedy to injunctive relief and deny attorneys' fees in a civil action against a state or local official for deprivation of rights where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion."
The ACLU and other civil liberties groups warn that this bill will deny access to the courts to injured individuals.
For the text and sponsors of H.R. 2679, click here.
For earlier reports on the "Public Expression of Religion Act," please click here.
Bill to send religion, flag cases straight to new Supreme Court
Law introduced to give Supreme Court sole jurisdiction over Ten Commandments, flag cases
The legislation, introduced by Rep. "Chip" Pickering, a Mississippi Republican, in December 2005, would make the Supreme Court the sole arbiter of "cases and controversies involving the Ten Commandments, the Pledge of Allegiance, and the National Motto." Click here to read Pickering's bill, HR 4576.
See also: Coverage of Pickering's bill by Focus on the Family quotes Rep. Walter Jones (R, NC) saying in support of the legislation: "We are guaranteed that First Amendment right [the issue of 'God in the public square'] and yet I see it eroded by the federal courts on a regular basis. And I think what Mr. Pickering is doing is trying to get this issue to the floor of the House so that the Congress will have to take a stand before the American people." Click here for the full text.
Flag Amendment Fails by Single Vote
Fox News, June 28, 2006
The narrow defeat of a proposal to ban flag desecration marks the second time in a month Senate Republicans have lost bids to amend the Constitution in ways designed to inspire social conservatives to vote in the midterm elections.
The 66-34 tally on the flag amendment Tuesday was one less than the two-thirds, or 67 votes, required to send it to the states for ratification. The House cleared the two-thirds threshold last year, 286-130. Continue
On June 30, 2005, all but unnoticed by the major media, one hundred Republican members of Congress introduced an amendment to the Constitution that would permit prayer and religious symbols in public settings. The measure, House Joint Resolution 57, which would effectively cancel out the First Amendment, reads in full:
To secure the people's right to acknowledge God according to the dictates of conscience:
The principal author is Rep. Ernest Istook of Oklahoma, whose earlier effort to amend the Constitution was defeated in 1998 (see below). To see the printed version of H.J.Res. 57 listing the sponsors, please click here.
Rep. Istook's Introductory Statement
In his remarks introducing H.J.Res. 57, Rep. Istook scarcely sugar-coated the measure's clear intent: to impose Christianity at school and in the public square. His conclusion, especially, left little to inference:
The courts are using the First Amendment to attack religion, when they should be using it to protect religion.
The proper standard is the one applied by the U.S. Supreme Court in 1948 involving the Pledge of Allegiance. They ruled that no child can be compelled to say it, but their opposition to it does not give them the right to silence their classmates who do wish to say it. That is the standard that should be applied to religious expression on public property, and the standard that the Religious Freedom Amendment follows. Abstain if you wish, but don't try to censor everyone else. It's a lesson in tolerance that we all need to learn.
A Congressional website "billboard" for H.J. Res. 57 leaves even less to the imagination.
That public billboard leaves little to the imagination about the sponsors' intent. The quote that follows is from a "Q and A" page on the site, which has the Congressional seal on every page.
So I'm a school student, and a fellow student wants to say a prayer over the intercom and I don't want to hear it. Or, I'm a parent and I don't want my children to hear it.
Jewish organizations oppose Istook's Religious Freedom Amendment
The American Jewish Committee
The American Jewish Committee issued a statement noting that "We already have a Religious Freedom Amendment-the First Amendment to the Constitution -- which safeguards truly voluntary religious expression." Click here to read the statement.
The Anti-Defamation League
The Anti-Defamation League said "it poses the most significant church-state separation threat of the 105th Congress."Click here to read the ADL's statement.
1997 effort to undo the First Amendment
Separation of Church, State Targeted
Constitutional Change Would Restore School Prayer, Religious Displays
By Laurie Goodstein and John E. Yang, Washington Post, March 25 1997
In 1997 Congressional conservatives, backed by right-wing religious groups, worked on drafting a constitutional amendment that would permit prayer and religious symbols in schools and other public settings. After compromise proved elusive Rep. Ernest Istook introduced a measure. Click here to read more.
Earlier Istook "Religious Freedom" amendment defeated
The Istook amendment was narrowly defeated in the House in 1998. An "Online Forum" from June 1998 on the Public Broadcasting System website gives a sense of the debate at the time. Click here to read the PBS forum.
Florida Amendment Would Hold Activist Courts in Check
By Jim Brown and Jody Brown, Agape Press, March 23, 2006
"In an attempt to resurrect their state's school voucher program, Florida lawmakers are considering a proposed constitutional amendment that would limit when the state's courts can declare a law unconstitutional.
"The bill introduced by Representative David Simmons was drafted in response to a January decision the Florida Supreme Court that struck down Governor Jeb Bush's school voucher law. Click here.
Kentucky: Constitutional Amendment: Bill would limit courts on three fronts
Commandments: 'Historic display' would be allowed
By John Stamper, Lexington Herald-Leader, (Lexington, Kentucky), March 2, 2006
Republicans in Kentucky's legislature put up for rapid passage a ballot measure that would amend the state constitution to strip judges of the power to: prohibit public displays of the Ten Commandments; allow local governments to enforce ordinances protecting minorities without the permission of the legislature; and order the legislature to fund programs. One of the sponsors said: "We see the legislative branch being trampled on by the judicial branch." Click here for the report.
Kentucky: Will they never learn?
Legislators keep repeating Commandments error
Editorial, Lexington Herald-Leader, March 14, 2006
"After the U.S. Supreme Court ruling last summer against two Kentucky counties' displays of the Ten Commandments, another push for posting religious doctrine in government buildings was inevitable. Continue.
Indiana U.S. Representative Sodrel: Prayer measure fights 'judicial activism'
By Bill Ruthhart, Indianapolis Star, February 22, 2006
"U.S. Rep. Mike Sodrel, R-Ind., said Tuesday he is confident Congress would vote to strip federal courts of jurisdiction over the content of speech in state legislatures. Sodrel introduced a bill last week that would do just that after U.S. District Judge David Hamilton's ruling in November that banned prayers during Indiana House proceedings from mentioning Jesus Christ or endorsing any particular religion." Click here to read the report.