Americans United reports:
The measure would essentially make it much more difficult for citizens to challenge government-backed religious activities.
Today’s hearing before the Judiciary Committee’s Subcommittee on the Constitution included four panelists, all but one of whom argued that federal jurisprudence on the First Amendment principle of church-state separation is so confusing that lawsuits seeking to uphold the principle should be discouraged.
This lack of balance is understandable given the how the primary supporters — John Hostettler (R-Ind.), Joseph Pitts (R-Pa.), and Walter Jones (R-N.C.), are all long-time opponents of the separation of church and state.
Subcommittee Chairman Rep. Steve Chabot (R-Ohio) claimed that the threat of lawsuits based on church-state separation “often forces states and localities to cave in to demands to remove even small religious references on public property.” According to Chabot, government entities do so because they don’t want to spend large sums of money on litigation, including their opponents’ attorneys’ fees.
In his opening comments, Chabot claimed that the bill would “level the playing field” of First Amendment jurisprudence. According to Chabot and Rees Lloyd, a commander in the American Legion, and one of the four panelists, the ACLU routinely collects unwarranted attorneys’ fees in its cases advocating the principle of church-state separation.
Hostettler also argued that the ACLU was using the threat of recouping attorneys’ fees to intimidate public schools or other government entities with lawsuits seeking to uphold church-state separation.
Notice the double-standard: the exact same things could be said about threats of lawsuits in cases where the government allegedly infringes upon people's free exercise of religion. This isn't an accident.
As an example, let's say a teacher decides to lead her class in prayer (despite the multiple court rulings that forbid this in the public schools). If the school allows her to do so and the family of one of the students in her class files suit on establishment clause grounds, they must bear the full cost of the litigation. Even if they win the case, if it costs a million dollars to fight such a case all the way to the Supreme Court - and it likely would - they have to be prepared to pay that million dollars even though the government has clearly acted in an unconstitutional manner here.
But let's reverse the example. Let's say that the school refuses to allow the teacher to lead her class in prayer and the teacher decides to sue, claiming that this ruling violates her right to free speech and free exercise of religion. Because the suit is on grounds other than the establishment clause, this legislation would not apply and the teacher could recover the legal costs if she wins the suit, while those objecting to the policy on the other side, because their suit would be on establishment clause grounds, would not.
I think that what Brayton here describes isn't an accident — it's precisely the point of this proposed law. Christian Nationalists want to put up barriers to challenges government establishments of religion because those establishments will invariably be Christian in nature, promoted by the Christian Right, and to the benefit of Christian conservatives. They invariably lose cases where they have convinced local governments to promote and their religion, but they hope that if they can make even successful challenges too expense, people won't stand up to their bullying anymore.
On the other hand, they don't want to increase the barriers to challenges made to infringements on the free exercise of religion. This is because such infringements — whether legitimate or imagined — often fall on Christians. This is inevitable, given how Christians are a numerical majority in America. When complaints are legitimate, it's usually because of an overzealous official trying to uphold the separation of church and state by going too far — and they are always corrected. When the infringements are only imagined, they are due to a loss of special privileges they never had a right to in the first place. In either case, they don't want successful challenges to be made more expense for them.
Separation of Church & State:
- Separation of Church and State 101
- Secularism 101
- What is the Separation of Church and State?
- Religion's Place in the Public Square
- Myths About Church/State Separation
- Church and State News
- Church & State Polls
Christian & Religious Privilege: