Another STACLU contributor, John Bambenek, has jumped into the dispute over HR 2679 and the fee shifting provisions in establishment clause cases. Naturally, he's for ending such fee shifting, but I don't think his argument is at all consistent. Here's his argument:
However, the money schools have is not their own. The money sitting in government accounts is not their own. They are merely stewards of assets they have been given to perform tasks they have been assigned. Their masters are the citizens who fund those organizations and who elect their leaders.
There is something profoundly wrong when, because of the actions of a politician, the entire society that funds that politician's organization is made to pay. There is much talk about making politicians and bureaucrats accountable, awarding legal fees for cases like this don't make the politicians accountable, it makes society accountable. It is irresponsible in the extreme to make other people pay for someone's "bad" actions.
The problem here is that his argument applies equally well in any lawsuit, not just establishment clause cases. If it's "profoundly wrong" and "irresponsible in the extreme" to make the taxpayers pay for the bad actions of those they elect to run government agencies, then it's profoundly wrong when someone sues to over free exercise of religion as well. Or in any free speech case, or any other case where the government has violated someone's rights.
So what Bambenek is really saying, though he may not realize it, is that when the government arrests someone for preaching on a public sidewalk, for example, that person should have to pay up to millions of dollars in order to get the government to stop doing that. When a school tells a 6th grader that he can't pass out candy canes with a religious message on them, and thus violates the student's rights, that child's family should have to pay the full cost of making the school stop violating his rights. And if the family can't afford it? Well, that's just too bad.
I think it's profoundly wrong and irresponsible in the extreme for government agencies to violate the Constitution and then force the person whose rights are violated to bear the burden of paying for a suit to make them stop. Congress thought so too, and that's why they passed the law allowing fee shifting. So I'm curious to see, will Bambenek apply his argument consistently and coherently and say that we should do away with fee shifting in all civil rights cases? Or will he be illogical and irrational in applying it? Time will tell.
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Maybe he is saying that, when the politician violates another's rights, it should be the politician who has to pay, not society. In other words, do away with qualified immunity. (Actually, I doubt that's what he really means, but that's the implication.)
(By the way, "qualified immunity" is one of those things that is not in any statute or the constitution, but was invented by judges. However, since it protects the politicians, you never hear them complaining about how it was created by an "activist" court.)
Bambeneck was saying that those who violate the rights of others should pay, not the victims and not those that employ them, and not the taxpayer. And the reason people want this to apply to the Establishment Clause is because that is the clause that is being abused. The way it is going now the ACLU uses the attorney fees to intimidate and bully the small local governments, and schools.
If you are actually honest with yourself you can see how it is being abused. What would your suggestion be to stop that abuse from happening. People are tired of paying the ACLU's fees to tear down crosses and destroy the Boy Scouts. We think they should pay for that from their donations.
The Establishment Clause is being abused? I haven't seen that yet. Many people seem to forget that the main intention of the Bill of Rights was to prevent the majority from riding roughshod over minorities. The fact that the majority holds a particular religious view does not empower them to shove it down the minority's throat. Let the fee shifting stand. And let the courts determine which way the legal decisions, and the fees, should go.
Jay wrote:
All this really means is that you disagree with the outcome of the cases. The legal fees are just as much a deterrent in free exercise cases or free speech cases as they are in establishment clause cases, and attorneys in those cases say the same when they're dealing with a government agency acting unconstitutionally - do you really want to take on the cost of this case? The only difference is that you don't like the outcome of establishment clause cases most of the time. You can't win them in court, so you want to prevent people from bringing them to court.
And that's proof that I'm right. You're not bothered by the fee shifting, you're bothered by the fee shifting for those cases you don't like. And of course, the notion that the ACLU is trying to "destroy the boy scouts" is nonsense. Will the Boy Scouts be "destroyed" if they have to stop discriminating? Will they be "destroyed" if they don't get the benefit of millions in Pentagon money for their jamboree or have to pay for access on equal footing with other groups? Of course not. The Boy Scouts are a private group. As such, they have the right to control their own membership. But if they're going to engage in discrimination, as they choose to do, then they have no more claim on government funding than any other private group. They want to have it both ways, they want to keep out atheists and gays and still receive special benefits from the government. Ending that public feeding won't destroy the boy scouts, it will return them to the truly private status that they claim as the basis for their ability to discriminate.
Jay: "... the reason people want this to apply to the Establishment Clause is because that is the clause that is being abused..."
Precisely. Politicians are abusing the Establishment Clause; judges are ruling against them; and now they want to discourage plaintiffs from challenging their violations. That's it in a nutshell, isn't it??
The fundemental fault in Bambeneck's opinion is that he see's politicians and the citizens as two seperate entities, they are not. They are our elected representatives it is their jobs to do the actions that we explicitly or implicitly approved when we voted for him.
He represents all citizens (not just the ones that voted for him) and if he holds ideas and opinions that were not apparent at the election, its our own fault for not sufficiently vetting him.
Its like if the board of directors said that the company shouldent pay because the CEO organised a corporate tax dodge.
I guess Bambeneck just dosent want to pay the price when he votes for politicians who hold unconstitutional opinions and promptly get sued when they act on it.
As for myself im gonna chalk this up on good ol "its not my fault/responsibility" society. After all why should it be your fault when it can be somebody elses.
A+
In all respect to Ed Brayton, because most of the time I can see your side. I really and truly can not this time. I'm sure you will just say it is because I am of inferior intelligence and all that.
Here is my point of view in an honest nutshell:
When it comes to the free speech clause I am, as suprisingly as it may seem, most likely in agreement with you Ed. It does not have any restrictions on it. No matter how radical. Personally I don't mind putting limits on where and when people can protest. However, if the ACLU wants to argue that Fred Phelps can rant is fag hate at Soldier's funerals and they win all the way to the top courts, then I don't mind their attorney's fees being payed out of my pocket. Really I do, but not on principle.
However, we come in strong disagreement when it comes to their interpretation of the Establishment Clause. In all honesty I don't like the outcomes and that comes down to a entirely different argument. It could go very deeply. Wouldn't mind having an actual voice conversation on that with you. You are invited to talk on this with me on my radio show between 1 p.m. and 3 p.m. this Saturday at http://www.widawakesradio.com
Anyway....I must admit you have made me think. This particular legislation should be more clarifiying that when actual injuries such as coercison to religion at schools and other like examples should be exempt. However, on the side of Bambeneck, I wouldn't mind that the offender pay the full price in these particular cases instead of me. Also, in cases of being offended by a cross or exluded from a private organization like the boyscouts...I don't want to pay for it no matter what the ruling is.
Let's give him the most charitable interpretation of his argument, that we should make the politicians responsible pay out of their own pocket for the violation. How would that change the incentive structure involved?
I think it would actually magnify the influence the ACLU has. If it's the school district on the hook for millions of taxpayer dollars, that's one thing, but if the actual school-board members were personally liable for the damage they did, do you really think a single one would ever dare thumb his nose at the courts with a Dover-type agenda? No way!
But, clearly that's not what John wants, is it? He wants legal fees to be ended. Why? Well, his truncated discussion of the economics of lawsuits forgets at least one of the reasons why we award fees in the first place. Public interest groups would take cases on a contingent basis (John's history imagines that without the award of fees there were no cases, wrong!). But after a while, wily defendants realized that the interests of the plaintiff and her attorney were often at cross-purposes, the plaintiff wanted to redress her own damages, while the attorney wanted to vindicate the rights of society at large. So, these wily defendants would strike deals with the plaintiff, "I'll give you X, which will cover your damages only, pay your lawyer out of that." Net result: Plaintiff wins, society as a whole loses, and the attorney loses (because 1/3 of 1 plaintiff's damages is significantly less than 1/3 of society's damages). So, if you value lawyers vindicating public rights, it makes sense to award statutory fees. The other time it makes sense is when the actual measurable damages are so difficult to ascertain that no attorney would take the case. Both of these come into play when we're talking about Constitutional claims.
So, I guess, at its heart, John's argument is that we should no longer care about vindicating the public's right to be free of governmental establishment of religion. All other civil rights, we love, we care about, we pay for their vindication, but establishment, not so much. If that's the case, if that's his true argument (and Jay, I'm looking at you too) then perhaps he'd be better served by a constitutional amendment.
well Jay, the establishment clause does not apply to the boy scouts, they are, as both you and Ed have stated a private organization.
So a person being excluded from them would not be affected by the proposed legislation.
The government however is bound by the establishment clause. As such they cannot support organisations that discriminate on grounds of religion.
Really, read Ed's argument just a couple of posts above, it states it clearly.
Also you make it about being "offended" by a cross, which is the wrong way around, its the government that is in conflict with the constitution using public funds and public property to establish religion, thats not an opinion, thats a fact support by numerous court decisions. The government is breaking the constitution, and thats the issue.
Perhaps it would cloud your mind less if you imagined a city council sacrificing a goat to Baal in the town square twice a day, instead of the putting a cross there.
Would you still argue that you don't want to pay for a case against that no matter what? Its just people getting offended, and public money being spend establishing a religion, not any real damage.
After Dover was presented with the $1M bill for legal costs, letters to the editor appeared in the local papers for months suggesting who shouuld pay. Not surprisingly, many who disagreed with the decision felt the parents who brought suit should; others felt the school board members should. The school board proceeded with their offending action despite a warning from their solicitor, and had an opportunity to settle before the case went to court. Rather than being bullied, the school board was informed of legal and financial consequences, and accepted the risk.
Jay wrote:
Well, I don't believe that there are no restrictions at all on the free speech clause, nor does anyone else that I know. We have restrictions for libel, fraud, perjury, and threats, for example, and all are reasonable and necessary limitations. And as I've written, I'm a bit torn on the issue of the funeral protests. In the end, I think the ACLU is right to challenge the laws as written, but I say that while holding my nose. Then again, I feel the same way about defending Nazis and NAMBLA, as I'm sure the ACLU attorneys do as well. But it's necessary to defend free speech even for speech that infuriates us, as all of those do. But I'm glad to hear that you believe in an expansive free speech clause interpretation, and that you don't have a principled objection to fee shifting in such cases.
But isn't this an admission that I'm right when I say that your real objection to fee shifting has nothing to do with principle and everything to do with just disagreeing with the outcomes of such cases and wanting those cases to stop? You don't have a principled objection to fee shifting, certainly not one that doesn't apply just as well to cases where you support fee shifting. The only time you object to fee shifting is when you think the case was decided wrongly (remember, they have to win the case to have the fees shifted). I think it's a fundamentally inconsistent position, because you claim to have a principled objection to fee shifting when you really don't. You just see this bill as a way to prevent rulings you don't like. Ironically, it's the same sort of outcome-based argument that conservatives so often criticize liberals for in judicial interpretation.
Let me also note that I don't always agree with the ACLU's interpretation of the establishment clause either. I've written lately, for example, of my opposition to their position in the Brittany McCombs case (they aren't actually involved in the case, but an ACLU spokesman made statements supporting the school's decision on the basis of the establishment clause). I think the Rutherford Institute is correct and I hope the court rules that way. But I don't think it's a defensible position to say, "Okay, I don't think they should get fees in that case if they win, because I disagree with the outcome." The fee shifting provisions were put in to insure that citizens could challenge the government's actions when they believed they were unconstitutional without being wealthy, and that is a very important goal. Inevitably, there will be rulings that we all disagree with that involve fee shifting, but we cannot pass a law that says we will allow fee shifting unless Jay disagrees with it.
I would frankly prefer to keep things in writing. I can reach far more people by writing here than I can on a radio show with double digit listeners at best. I just don't see what I would get out of it.
But this is the same argument. What you're really arguing for is for the courts to apply a different standard of interpretation for the first amendment. And that's fine with me. I think there's a solid argument to be made for the accomodationist position, which would involve a coercion standard (I don't ultimately support that position, but I think it's credible and coherent and easily traceable to a large faction among the founding fathers themselves). So make that argument, refine that argument, and make it a winning one in court. That's the reasonable thing to do. Stopping fee shifting for all establishment clause cases is nothing more than an unprincipled attempt to get your way through other means, by hobbling the opposition so they have a difficult time bringing such cases. Frankly, it's cowardly. It's an admission that your arguments can't win in court. And it still comes down to "I don't agree with fee shifting if I don't agree with the outcome of the case."
As Greg notes above, that's a very bad position for you to take. It would only make school officials even less likely to do anything that leads to a lawsuit, less likely to fight such lawsuits, and more easily intimidated by the threat of a lawsuit. That would only give the ACLU more influence, not less. I think you may wanna rethink that idea.
I think you misinterpret the legal argument in cases involving religious symbols. No one goes to court and says "that offends me, make it stop". The legal argument has several bases. First, by allowing only Christian symbols to be displayed prominently on government property, using government money, sends a message of endorsement. It amounts to the government endorsing Christianity, which it is forbidden to do. Second, it sends a message of exclusion, telling non-Christians that they are second class citizens. Thirdly, that the spending of our tax dollars to support a particular religion is, in and of itself, tyrannical (as Jefferson noted so eloquently in his religious freedom statute in Virginia).
I know that you like to dismiss those arguments flippantly, but stop and think about them for a moment. Just take this hypothetical for a moment. Suppose a group of Muslims managed to get elected to the city council in the town that you live in (unlikely, I know, but that's irrelevant as this is a hypothetical). Suppose also that they vote to erect a huge Muslim star and crescent symbol at the city park - no other religious symbols, just that one. Or suppose that they put up a large monument in City Hall that includes verses from the Quran and no other. I have no doubt that you would fight to stop those things, using the very same arguments that others use to try and stop Christian symbols from being used in the same manner (and I'd be right by your side in doing so). And that's why I think that you don't really mean what you say. I don't think you really mean it when you say you reject those arguments; I think you just reject those arguments when they're applied to symbols you support. But there is no principled difference between these two situations. From a constitutional standpoint, they are precisely identical - both are government giving preference to one religion above others. That bothers you if the religion being preferred is not your own, but you're fine with it if the religion being preferred is yours. Why not just be honest about that?
For any religion to be expressed is guaranteed in the Constitution. If I were to argue against an identical situation with Muslim symbols instead...I would only do so to show hypocrisy. What I'm saying is that if this hypothetical situation arose and was ignored by the ACLU, I would point that out and ask why? Why ignore this when you go after identical situations when it comes to Christian viewpoints. The answer is not to stifle religious free speech, but to counter it with more free speech. There have been cases where I argued just this. The ACLU ignored situations where the religion was Muslim. They would have been all over it if it were Christian. I'll point it out again the next time it happens....and it will happen.
But that's nonsense. For an individual to express their religious views is protected. But a government agency allowing only one religion to have access to express their religious views is endorsement, not expression. The government cannot choose to give access to expression to only one group. Go back to my hypothetical: if your city council decided to put up a monument to the Quran in city hall, or a huge star and crescent in the city park, but not any other religion, that is not individual expression of religion, it's government endorsement of religion.
Even if the ACLU was hypocritical, that would not justify you also being hypocritical.
If the ACLU ignores those situations - and I'm not aware of any instance where it was even an issue - that has nothing to do with the legal question of the establishment clause. The issue is how to interpret the establishement clause, not whether someone else not in this conversation interprets it correctly.