To suspend temporarily the duty on certain chemicals and chemical mixtures.

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.

Sec. 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. Sec. 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. Sec. 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. Sec. 1983 regarding the Establishment

Clause.

42 U.S.C. Sec. 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.

American Civil

Liberties Union,

Washington, DC, July 25, 2006.

Re the Public Expression of Religion Act (H.R. 2679).

House of Representatives,

Committee on the Judiciary,

Washington, DC.

Dear Representative, On behalf of the American Civil

Liberties Union (ACLU), and its hundreds of thousands of

members, activists, and fifty-three affiliates nationwide, we

urge you to oppose H.R. 2679, the ``Public Expression of

Religion Act of 2005.'' This bill would bar damages and

awards of attorneys' fees to prevailing parties asserting

their fundamental constitutional rights in cases brought

under the Establishment Clause of the First Amendment to the

U.S. Constitution. H.R. 2679 would limit the longstanding

remedies available in cases brought under the Establishment

Clause under 42 U.S.C. 1988, which provides for attorneys'

fees and costs in all successful cases involving

constitutional and civil rights violations.

H.R. 2679 Shuts the Courthouse Doors

If this bill were to become law, Congress would, for the

first time, single out one area protected by the Bill of

Rights and prevent its full enforcement. The only remedy

available to plaintiffs bringing Establishment Clause

lawsuits would be injunctive relief. This prohibition would

apply even to cases involving illegal religious coercion of

public school students or blatant discrimination against

particular religions.

Congress has determined that attorneys' fee awards in civil

rights and constitutional cases, including Establishment

Clause cases, are necessary to help prevailing parties

vindicate their civil rights, and to enable vigorous

enforcement of these protections. The Senate Judiciary

Committee has found these fees to be ``an integral part of

the remedies necessary to obtain . . . compliance.'' The

Senate emphasized that ``[i]f the cost of private enforcement

actions becomes too great, there will be no private

enforcement. If our civil rights laws are not to become mere

hollow pronouncements which the average citizen cannot

enforce, we must maintain the traditionally effective remedy

of fee shifting in these cases.

Unfortunately, H.R. 2679 would turn the Establishment

Clause into a hollow pronouncement. Indeed, the very purpose

of this bill is to make it more difficult for citizens to

challenge violations of the Establishment Clause. It would

require plaintiffs who have successfully proven that the

government has violated their constitutional rights to pay

their legal fees--often totaling tens, if not hundreds, of

thousands of dollars. Few citizens can afford to do so, but

more importantly, citizens should not be required to do so

where there is a finding that our government has engaged in

unconstitutional behavior.

The elimination of attorneys' fees for Establishment Clause

cases would deter attorneys from taking cases in which the

government has violated the Constitution; thereby leaving

injured parties without representation and insulating serious

constitutional violations from judicial review. This

effectively leaves religious minorities unable to obtain

counsel in pursuit of their First Amendment rights under the

Establishment Clause.

H.R. 2679 Denies Just Compensation

Despite proponents' assertions to the contrary, attorneys'

fees are not awarded in Establishment Clause cases as a

punitive measure. Rather, as in any case where the government

violates its citizens' civil or constitutional rights, the

award of attorneys' fees is reasonable compensation for the

expenses of litigation awarded at the discretion of the

court. After intensive fact-finding, Congress determined that

these fees ``are adequate to attract competent counsel, but .

. . do not produce windfalls to attorneys.'' H.R. 2679 is

contrary to good public policy--it reduces enforcement of

constitutional rights; it has a chilling effect on those who

have been harmed by the government; and it prevents attorneys

from acting in the public's good.

The award of fees in Establishment Clause cases is not a

means for attorneys to receive unjust windfalls--it is

designed to assist those whose government has failed them.

H.R. 2679 Favors Enforcement of the Free Exercise Clause Over the

Establishment Clause

Among the greatest religious protections granted to

American citizens are the Establishment Clause and the Free

Exercise Clause. The right to practice religion, or no

religion at all, is among the most fundamental of the

freedoms guaranteed by the Bill of Rights. Religious liberty

can only truly flourish when a government protects the Free

Exercise of religion while prohibiting government-sponsored

endorsement, coercion and funding of religion. H.R. 2679

creates an arbitrary congressional policy in favor of the

enforcement of the Free Exercise Clause, while simultaneously

impeding individuals wronged by the government under the

Establishment Clause.

Through the denial of attorneys' fee awards under H.R.

2679, plaintiffs will be able to afford the expense of

litigation only when they are seeking to protect certain

constitutional rights but not others. This bad congressional

policy serves to create a dangerous double standard by

favoring cases brought under the Free Exercise Clause, but

severely restricting cases under the Establishment clause.

Proponents of this bill have been spreading the urban myth

that religious symbols on gravestones at military cemeteries

will be threatened without passage of H.R. 2679. The

supposedly ``threatened'' religious markers on gravestones

has become a red-herring--indeed it is an urban myth--that

has been invoked as a reason for the denial of attorneys'

fees in Establishment Clause cases. It should be noted--in

light of the wildly inaccurate statements that have

repeatedly been made--that religious symbols on soldiers'

grave markers in military cemeteries (including Arlington

National Cemetery) are entirely constitutional.

Religious symbols on personal gravestones are vastly

different from government-sponsored religious symbols or

sectarian religious symbols on government-owned property.

Gravestones and the symbols placed upon them are the choice

of individual service members and their families. The ACLU

would in fact vigorously defend the first amendment rights of

all veteran Americans and service members to display the

religious symbol of their choosing on their gravestone.

If the Constitution is to be meaningful, every American

should have equal access to the federal courts to vindicate

his or her fundamental constitutional rights. The ability to

recover attorneys' fees in successful cases is an essential

component of the enforcement of these rights, as Congress has

long recognized. The bill is a direct attack on the religious

freedoms of individuals, as it effectively shuts the door for

redress for all suits involving the Establishment Clause. We

urge members of Congress to oppose H.R. 2679.

If you have any questions, please contact Terri Schroeder,

Senior Lobbyist.

Sincerely,

Caroline Fredrickson,

Director.

Terri Ann Schroeder

Senior Lobbyist.

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.

Mr. Speaker, I now yield 4 minutes to the distinguished gentleman from Maryland (Mr. Van Hollen).

Mr. Speaker, I yield 4 minutes to the distinguished gentleman from Virginia (Mr. Scott).

Mr. Speaker, I reserve my time.

I now recognize the gentleman from Virginia for a unanimous consent request.

Mr. Speaker, I yield 2 minutes to the distinguished gentlewoman from California.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, we have heard a lot of rhetoric that is really beside the point on this bill. We all agree, I hope, that the United States Constitution governs. We all agree, I hope, that the Bill of Rights confers certain rights on Americans, whether citizens or not. We all agree that freedom of religion, freedom to exercise religion, and freedom from establishment of religion are among those rights. We all agree, I hope, that the courts are there to enforce those rights. And then the disagreement begins.

This bill would seek to put a thumb on the scale and say, and we heard this rhetoric: We don't like the ACLU. We don't like what they are doing, even if the courts say they are right in a given case. Because we don't like what they are doing, because their winning court decisions violates our concept of what the Establishment Clause means, we are going to put a thumb on the scale and say that people who win lawsuits, who establish to the court's satisfaction that the government has violated their rights under the first amendment, the Establishment Clause, they cannot get damages, they cannot get attorneys' fees. We are going to put a poll tax on the Establishment Clause. Only people with a lot of money had better sue to enforce their first amendment rights.

If you don't have a lot of money but the government is violating your rights under the Establishment Clause, you can't sue. Because even if your attorney tells you you have got a 99 percent chance of winning because these people know they are wrong, it may still cost you a couple hundred thousand dollars. And they paint the picture of these poor cities and towns and governments having to kowtow to an organization, but the fact is, who generally has more money for a lawsuit? The City of New York, the City of Galveston, the town of whatever, or an individual?

You are putting a means test on protecting your rights to freedom of religion. I don't think that is what this country ought to be about. Because, after all, someone has got to pay for that lawsuit. Someone has got to pay the attorneys' fees, and that is either going to be the plaintiff who alleges a violation of his rights, or it is going to be the government that allegedly violated his rights.

The law says, current law, that if you prove that the government violated your rights, the government should pay the cost of that lawsuit, not you.

This bill says that, for most things, that is still true; but for the Establishment Clause rights, it no longer true, and you have got to pay for the lawsuit that the government made you bring by willfully, or perhaps not willfully, violating your rights.

They say, well, look at the City of San Diego. It is costing them hundreds of thousands of dollars. Well, if they listened to their attorney who said, gee, what you are doing may very well violate the first amendment or does violate the first amendment, then maybe they wouldn't have had to pay those hundreds of thousands of dollars. With this bill, there will be no financial incentive to obey the Establishment Clause.

Second, this bill does not, as I said before, cover only the cases they are talking about; it covers all establishment cases. And let's think of an establishment case. Let's assume, and we know that throughout the history of this country different ethnic groups, different religious groups have different political weights at different times. Let's assume that in some town the Sunni Muslims became a majority, and let's assume that they decided in that town that everybody, Christians, Jews, Muslims, in school had to recite every day on pain of expulsion from class there is no God but Allah, and Mohammed is his prophet. Pretty clear violation of the Establishment Clause in the first amendment.

Now, somebody who is not a Muslim in that case, someone who is Jewish or Christian or something else, decides to sue and wins the lawsuit; and they say you can't do that. You can't get attorneys' fees. He has got to bear the cost of that. Why? Because of hostility on the part of the sponsors of this bill to the Establishment Clause of the first amendment. Because they think that only the majority religion is ever going to be in the position to dominate a local government or any government.

Maybe so. But the real reason we have the first amendment is that you can never be sure. It may be that in the future some group that isn't the majority now will be the majority in some local area; and if you make it difficult to enforce the Establishment Clause of the first amendment, you or your children could be the ones imposed upon.

Now, we heard about this horrible situation, about the challenge to this or challenge to that. But, as I said before, the real complaint is not with the attorneys' fees, the real complaint is with the first amendment. You think you ought to be able to do whatever it was and what the courts have said, no, you can't. Well, maybe you shouldn't or maybe we should amend the Constitution. Which I wouldn't suggest, but that would be the right way to do it. Or maybe we should get different judges or whatever.

But if the courts say you are violating the first amendment, you shouldn't continue to do it. You should be able to get damages if you continue to do it. And the plaintiff, vindicating his own constitutional rights, should be able to bring a lawsuit without having a lot of money.

Now, we heard also that, well, the various organizations say that even if you pass this bill, they will still sue. But that is not the question. The first amendment does not belong, the Constitution of the United States does not belong to the American Civil Liberties Union or to Americans United for Separation of Church and State or United Americans Against the Separation of Church and State.

It is the individual right that you are violating here. It is an individual's right, or maybe a whole class of individuals, that you are violating when you violate the establishment clause of the first amendment, and any individual should have the right and the ability to go to court and if he wins, to get attorneys fees.

We have made a decision, we have made a decision in this country, and maybe you want to challenge that decision, but this bill doesn't do that. That decision is that when your constitutional rights are violated and you can prove it to the court, that the government violated your constitutional rights, then the government should pay for the cost of your vindicating the Constitution and vindicating your rights against the government that broke the law by violating your rights. That is a general principle.

Maybe you want to say no, we don't care that much about individual rights any more, first amendment, second amendment, whatever. From now on you want to sue the government because they violated your rights, you pay no matter what, even if you win. Okay, that is a different bill. I would oppose it, but that is a different bill. That is not this bill. This bill says we think all rights are important. If you think that the government violated your second amendment right to own a gun and you go to court and you prove it, the government pays for that lawsuit, and properly so.

But if you think the government violated your right to practice your religion by violating the establishment clause, and you prove it, the government doesn't pay. You have to pay for it because your right to own a gun is a heck of a lot more important than your freedom of religion, apparently. That doesn't make sense.

Mr. Speaker, if we believe in the individual rights enshrined in the Bill of Rights, if we believe in the first amendment and the freedom of religion in this country, and if we believe we shouldn't single out freedom of religion and say that freedom is less important, that freedom if you win, and forget the merits of these cases, if you lose, you don't get attorneys fees or damages.

We are talking about where you are right and the government is wrong. The government is violating your rights, and this bill says you shouldn't get damages or attorneys fees anyway

because we don't like your point of view. That is wrong. It is demeaning to this Congress, and if we believe in freedom of religion and the Bill of Rights, we will defeat this bill.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, pursuant to House Resolution 1038, I call up the bill (H.R. 2679) to amend the Revised Statutes of the United States to eliminate the chilling effect on the constitutionally protected expression of religion by State and local officials that results from the threat that potential litigants may seek damages and attorney's fees, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous materials on H.R. 2679, currently under consideration.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise today in support of H.R. 2679, the Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2006, which was introduced by our colleague from Indiana (Mr. Hostettler); and I would like to thank him for his leadership on this issue.

Mr. Speaker, this legislation was reported out of the House Judiciary Committee on November 7 by voice vote. Let me describe the unfair situation that this legislation addresses.

Today, under Federal law, attorneys' fees can be demanded in lawsuits against States or localities brought in under the Constitution's Establishment Clause.

These lawsuits could mandate, for example, that veterans' memorials must be torn down because they happen to have religious symbols on them; that the Ten Commandments must be removed from public buildings; and that the Boy Scouts cannot use public property.

The case law under the Establishment clause is so confused that States and localities know defending themselves in such lawsuits is simply unpredictable.

In 2005, for example, the Supreme Court issued two rulings on the same day that contained opposite holdings in cases involving the public display of the Ten Commandments. In one case, the court found a framed copy of the Ten Commandments in a courthouse hallway to be an unconstitutional establishment of religion, but in the other case the court upheld a Ten Commandments monument on the grounds of the Texas State Capitol. Not only were these two rulings different, but different constitutional tests were used in each case.

The threat to States and towns having to pay attorneys' fees in such cases, should they happen to lose at any level, often leads those States and localities to give up whatever rights they might have under the Constitution, even before such cases go to trial.

This bill will prevent the legal extortion that currently makes State and local governments, and the Federal Government, accede to demands for the removal of religious imagery when such removal is not even constitutionally compelled by the Constitution.

The Supreme Court has stated that ``the State may not establish a religion of secularism in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe.''

Contrary to that principle, current litigation rules are hostile to religion because they allow some groups to coerce States and localities into removing any reference to religion in public places.

This unfair result is made possible because 42 United States Code, section 1983, and 42 United States Code, section 1988, allow advocacy organizations to put the following choice to localities: either do what we want and remove religious words and imagery from the public square, or risk a single adverse judgment by a single judge that requires you to pay tens or hundreds of thousands of dollars in legal fees in a case you cannot afford to litigate.

Consequently, local governments are being forced to accede to the demands of those seeking to remove religious words or tear down symbols, and ban religious people from using the public square, even when allowing those uses might, in fact, be constitutional.

H.R. 2679 amends 42 U.S.C. so that attorneys' fees could not be awarded to prevailing parties in Establishment Clause cases. It amends 42 U.S.C. to make clear that while Establishment Clause cases can continue to be brought against State and local governments, they can be brought only for injunctive or declaratory relief.

This means that a court can still order that a State official or local government stop doing whatever was an alleged violation of the Establishment Clause.

One example of the unfairness this legislation would prevent is a recent case in which the County of Los Angeles was forced to remove a tiny cross from its official county seal that symbolized the founding of that city by missionaries. This tiny cross was on the seal for 47 years. This is costing the county $1 million, as it entailed changing the seal on some 90,000 uniforms, 6,000 buildings, and 12,000 county vehicles.

In Redlands, California, the city council reluctantly gave in to demands and agreed to change their official seal. But Redlands did not have the municipal funds to replace the seal. As reported by the Sacramento Bee, ``rather than face the likelihood of costly litigation,'' Redlands residents now ``see blue tape covering the cross on city trucks, while some firefighters have taken electric drills to `obliterate it' from their badges.''

Mr. Speaker, this is just the kind of injustice this bill seeks to correct.

Finally, Mr. Speaker, H.R. 2679 is clearly constitutional. It has a secular legislative purpose, namely that of preventing the use of the legal system in a manner that extorts money from State and local governments, and the Federal Government, and inhibits their constitutional actions. In doing so, this bill restores the original purpose of 42 U.S.C., which was to protect individual rights, not Establishment Clause claims.

H.R. 2679 also does not have the primary effect of either promoting or inhibiting religion. Rather, it simply removes the burdensome effects of the current legal rules.

So, again, Mr. Speaker, this bill is constitutional and does not prevent lawsuits from being filed.

I urge my colleagues to join me in supporting this legislation and protect the religious rights of all citizens.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 6 minutes to the gentleman from Indiana (Mr. Hostettler), who is the author of this legislation.

(Mr. HOSTETTLER asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 2 minutes to the gentlewoman

from Florida (Ms. Ginny Brown-Waite).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, some opponents of this legislation are arguing that attorneys fees are needed and that establishment clause lawsuits will be deterred unless the people bringing these lawsuits have their attorneys fees paid. This is simply not true.

First, we are aware of no organization that has said they will not bring a good cause case under the establishment clause if they can't be awarded attorneys fees. In fact, the ACLU has said just the opposite. Peter Eliasberg, a staff attorney for the ACLU of Southern California, has said recently, ``Money has never been a deciding factor when we take cases.'' When asked specifically what the ACLU would do if attorneys fees in establishment clause cases were prohibited, he said, ``It wouldn't stop us from bringing lawsuits.''

Second, this section of the U.S. Code H.R. 2676 amends was never intended to apply to establishment clause cases. 42 U.S.C. 1988, which allows attorneys fees in cases brought under 42 U.S.C. 1983, was intended only to allow the award of attorneys fees under civil rights laws enacted by Congress after 1866.

The history of 42 U.S.C. is as follows: in Alaska Pipeline Service Company v. Wilderness Society, the Supreme Court held that Federal courts do not have inherent power to award prevailing party attorneys fees to remedy government violations of the law. The Court observed that the American rule, that is, the rule that each party bears its own attorneys fees ``is deeply rooted in our history and in congressional policy.''

Mr. Speaker, I want to make one more point, and that is to emphasize that under H.R. 2679, establishment clause cases can in fact continue to be brought against State and local governments for injunctive or declaratory relief, which means that the court can still order that a State official or local government stop doing whatever it was in alleged violation of the establishment clause

Mr. Speaker, I yield 5 minutes to the gentleman from Indiana (Mr. Hostettler).

Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr. Bilbray).

Mr. Speaker, I would like to yield 4 minutes to the gentleman from Indiana (Mr. Pence).

(Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, we have just had a speaker arrive on the House floor, and I would like to yield 1\1/2\ minutes to the gentleman from Pennsylvania (Mr. Pitts) if the gentleman from New York doesn't object.

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, today under Federal law, attorneys fees can be demanded from the winning side in lawsuits against States or localities, or the Federal Government, brought under the Constitution's establishment clause.

Current litigation rules are hostile to religion because they allow some groups to force States and localities into removing any reference to religion in public places.

H.R. 2679 would prevent the legal extortion that currently forces State and local governments, and the Federal Government, to accede to demands for removal of religious text and imagery when such removal is not compelled by the Constitution.

Current laws allow plaintiffs to put the following choice to localities: either do what we want and remove religious words and imagery from your public square or risk a single adverse judgment from a single judge that requires you to pay tens or hundreds of thousands of dollars in legal fees in a case that you can't afford to litigate through the appeals process.

Mr. Speaker, local governments are being forced to accede to the demands of opponents, even when their actions are in fact constitutional.

The section of the U.S. code H.R. 2679 amends was never intended to apply to establishment clause claims. 42 U.S.C. 1988, which allows attorneys fees, was intended only to allow the award of attorneys fees civil rights laws enacted by Congress after 1866. We need to return to that original purpose and pass this legislation. I urge my colleagues to support it

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I rise in opposition to H.R. 2679, the so-called ``Public Expression of Religion Act of 2005.'' The central purpose of this legislation is to bar damages and awards of attorneys' fees to prevailing parties asserting their fundamental constitutional rights in cases brought under the Establishment Clause of the First Amendment to the U.S. Constitution. H.R. 2679 would limit the longstanding remedies available in cases brought under the Establishment Clause under 42 U.S.C. 1988, which provides for attorneys' fees and costs in all successful cases involving constitutional and civil rights violations.

I oppose H.R. 2679 for three very important reasons. First, the bill limits access to justice and makes it virtually impossible for an injured party to obtain remedial relief from a serious deprivation of a fundamental, constitutionally protected right. Second, H.R. 2679 would jettison a legal and constitutional principle that has stood the nation in good stead for over two centuries: that an injured party is entitled to just compensation for the injury he or she has sustained caused by the intentional wrongdoing or negligent conduct of others. Third, H.R. 2679 discriminates against the Establishment Clause of the First Amendment in favor of the Free Exercise Clause. I will address each of the fatal deficiencies in turn.

1. H.R. 2679 limits access to justice for those seeking to vindicate Constitutional Rights.

If H.R. 2679 were to become law, Congress would, for the first time, single out one area protected by the Bill of Rights and prevent its full enforcement. The only remedy available to plaintiffs bringing Establishment Clause lawsuits would be injunctive relief. This prohibition would apply even to cases involving illegal religious coercion of public school students or blatant discrimination against particular religions.

Awards of attorneys' fees in civil rights and constitutional cases, including Establishment Clause cases, are necessary not merely to help prevailing parties vindicate their civil rights but also to provide an incentive for vigorous enforcement of these protections, which the Framers put in place to protect the Nation. Since widespread observance of the rights and protections set forth in the First Amendment is above a collective good, it is vitally important that there be an incentive for individuals to act as ``private Attorneys General'' to vindicate their individual rights and the public interest in a robust First Amendment. Our sister committee in the other body has found these fees ``an integral part of the remedies necessary to obtain . . . compliance'' and emphasized that ``[i]f the cost of private enforcement actions becomes too great, there will be no private enforcement.''

H.R. 2679 would turn the Establishment Clause into a hollow pronouncement. Indeed, the very purpose of this bill is to make it more difficult for citizens to challenge violations of the Establishment Clause. It would require plaintiffs who have successfully proven that the government has violated their constitutional rights to pay their legal fees--often totaling tens, if not hundreds, of thousands of dollars. Few citizens can afford to do so, but more importantly, citizens should not be required to do so where there is a finding that our government has engaged in unconstitutional behavior.

If our civil rights laws are not to become empty words written on parchment which the average citizen cannot enforce, we must maintain the traditionally effective remedy of fee shifting in these cases.''

In sum, I oppose H.R. 2679 because I believe the elimination of attorneys' fees for Establishment Clause cases would deter attorneys from taking cases in which the Government has violated the Constitution; thereby leaving injured parties without representation and without a remedy. It will insulate serious constitutional violations from judicial review. This effectively leaves religious minorities subject to the unbridled whims of the majority, which is precisely the evil the First Amendment, including its Establishment Clause, was intended to combat.

2. H.R. 2679 Denies Just Compensation.

I am a former judge and, like many members of this Committee, an attorney. We know that attorneys' fees are not awarded in Establishment Clause cases as a punitive measure. Rather, as in any case where the Government violates its citizens' civil or constitutional rights, the award of attorneys' fees is reasonable compensation for the expenses of litigation awarded at the discretion of the court. In fact, after intensive fact-finding, Congress determined that the amount of attorneys fees awarded after review by the court ``are adequate to attract competent counsel, but . . . do not produce windfalls to attorneys.''

Thus, H.R. 2679 is contrary to good public policy because it reduces enforcement of constitutional rights; it has a chilling effect on those who have been harmed by the Government; it makes it exceedingly difficult for plaintiffs to avail themselves of the services of attorneys experienced and skilled in constitutional litigation, and it prevents attorneys from acting in the public's good.

3. H.R. 2679 Favors Enforcement of the Free Exercise Clause Over the Establishment Clause.

Finally, one cannot help but notice that H.R. 2679 creates an arbitrary congressional policy in favor of the enforcement of the Free Exercise Clause, while simultaneously impeding individuals injured by governmental conduct under the Establishment Clause.

Among the greatest religious protections granted to American citizens are the Establishment Clause and the Free Exercise Clause. The right to practice religion, or no religion at all, is among the most fundamental of the freedoms guaranteed by the Bill of Rights. Religious liberty can only truly flourish when a government protects the Free Exercise of religion while prohibiting government-sponsored endorsement, coercion and funding of religion.

Through the denial of attorneys' fee awards under H.R. 2679, plaintiffs will be able to afford the expense of litigation only when they are seeking to protect certain constitutional rights but not others. This bad congressional policy serves to create a dangerous double standard by favoring cases brought under the Free Exercise Clause, but severely restricting cases under the Establishment clause.

4. Conclusion

If the Constitution is to be meaningful, every American must have equal access to the federal courts to vindicate his or her fundamental constitutional rights. The ability to recover attorneys' fees in successful cases is an essential component of the enforcement of these rights, as Congress has long recognized. H.R. 2679 is a direct attack on the religious freedoms of individuals. Therefore, I cannot support it.

I am pleased to learn that I am supported in my opposition to this ill-conceived and unwarranted assault on the First Amendment's Establishment Clause by some of the most thoughtful and knowledgeable groups on this subject in America, including: African American Ministers in Action, American Jewish Committee, American Jewish Congress, American Civil Liberties Unions, Americans United for Separation of Church and State, Jewish Counsel for Public Affairs, People for the American Way, The Urban League, American-Arab Anti- Discrimination Committee, Asian Pacific American Legal Center, Mexican American Legal Defense and Education Fund, National Association for the Advancement of Colored People (NAACP), National Senior Citizens Law Center.

I urge my colleagues to uphold the First Amendment's Establishment Clause and join me in opposing this shameful piece of legislation.

I thank the gentleman from Texas for yielding.

Mr. Speaker, I rise in support of H.R. 2679, the Public Expression of Religion Act. This legislation would allow establishment clause cases to go to court unfettered by fear or coercion on the part of the defendant. And as an aside, I want to thank the gentleman from New York for clarifying a position earlier made by that side of the aisle when it was suggested by the gentleman from Texas and the gentleman from Massachusetts that somehow this bill would actually affect free exercise cases. But as the gentleman from New

York pointed out, this bill does not address free exercise cases.

The Public Expression of Religion Act would amend 42 U.S.C. sections 1983 and 1988 to prevent the mere threats of the legal system to intimidate communities, States, and groups like the American Legion into relenting without ever darkening the doorsteps of a Federal courthouse.

I first introduced the Public Expression of Religion Act in the 105th Congress after I realized that the mention of attorneys fees in these kinds of cases were jeopardizing our constituents' constitutional rights. An example of this was in 1993, when the Indiana Civil Liberties Union, which is affiliated with the American Civil Liberties Union, mailed a letter to all the public educators in the State of Indiana. In this letter, the ICLU informs the educators that should they support a prayer at graduation, the ICLU will sue both the school and any individuals who approve the graduation prayer. The letter plainly states the ICLU will win and that whoever is sued will have to pay not only their attorneys fees but the ICLU fees as well.

These threats to teachers, who are highly unlikely to be able to pay their own attorneys fees let alone the exorbitant attorneys fees of the ICLU, make it very likely educators would capitulate to the ICLU before even checking to make sure the ICLU has their facts right.

What makes this even more difficult for States and localities is that the jurisprudence in establishment clause cases is about as clear as mud. Different districts and even the Supreme Court itself flipflops on issues. For instance, last year, the Supreme Court handed down two Ten Commandments case decisions on the same day with a different decision in each.

In the Van Orden case, the court applied the Marsh test of historical perspective to determine the Ten Commandments in a public venue was constitutional in Texas; while the McCreary case used the Lemon test to determine the Ten Commandments in a public venue in Kentucky was unconstitutional. Clear as mud.

Our constituents who are being threatened with those lawsuits know even if they are right they will still have to pay their own attorneys fees to take the gamble the court will muddle through the jurisprudential mess of the establishment clause and come out on their side. If the court chooses to use the Marsh test, they might win. If the court chooses to use the Lemon test, they might lose. It is a toss- up.

Unfortunately, many of our constituents do not have the means by which to set aside a small fortune each year to defend their constitutional rights against intimidating liberal organizations. Nor do they look kindly on the fact that their constitutional rights have become subject to the whims of unelected judges; but, Mr. Speaker, that issue is for another legislative day. Regardless, many do not wish to roll the dice to have their day in court, so they capitulate to these organizations and their often questionable pronouncement of what is or is not constitutional.

A majority of the cases the ACLU and its affiliates represent are facilitated by staff attorneys or through pro bono work, so any attorneys fees awarded to them is icing on the cake. It is a win-win situation for them right now. On the other hand, States and localities have limited resources with which to fight court battles, thus another reason they are capitulating before they even go to court.

This was the case recently with the Los Angeles County seal. The ACLU threatened to sue L.A. County if they did not remove the tiny cross from the county seal. The cross symbolized Los Angeles' birth as a Spanish mission town. The county was forced to choose between paying to change the seal or paying to go to court and possibly pay exorbitant attorneys fees to the ACLU.

In the end, the L.A. county supervisors, in a 3-2 vote, decided to ignore the will of the people of Los Angeles County and pay to change the seal instead of paying to go to court. They had been advised by their attorneys that if they lost in court they would not only have to change the seal but they would additionally have to pay attorneys fees of the ACLU.

Mr. Speaker, I believe it is time to bring this extortion to an end. The Public Expression of Religion Act would make sure these cases are tried on their merits and are not merely used to extort behavior via settlements outside our judicial system.

As the ICLU said at the end of their letter: ``The ICLU does not enjoy litigation. We, and you, have better things to do with our time.'' I for one would like to make sure the ICLU has to think long and hard before litigating, and this would be the case if they knew they would actually have to convince a court of their twisted view of the Constitution. I urge my colleagues to support the legislation.

Mr. Speaker, in response to a discussion earlier about the notion of ``false advertising'' in relationship to this piece of legislation, I have developed some fairly thick skin over the last several years in this job, but I think that I should draw the line today with regard to suggesting that people such as the American Legion would engage in false advertising in their support of the Public Expression of Religion Act.

In a booklet published by the American Legion entitled ``In the Footsteps of the Founders,'' the American Legion set out a course of action, a battle plan, if you will, in their desire to ``mobilize America to urge passage of the Public Expression of Religion Act, or

Mr. Speaker, I am grateful for the gentleman's leadership on this issue. I rise in strong support of the Public Expression of Religion Act; and I do so with particular gratitude to my Hoosier colleague, John Hostettler, who, during the course of his career in the United States House of Representatives, has stood for the freedom of religion as perhaps no other American.

And I say that with understandable parochial Hoosier pride, but I also say it as an objective observation, that the gentleman from Indiana has stood for a constitutional accommodationist view of respect for the expression of religion and its importance in American heritage. Mr. Speaker, I commend him for his outstanding work on this legislation.

In 1976, a statute was passed in this Congress called the Civil Rights Attorney's Fees Awards Act. Very simply and plainly, this statute was intended to protect the constitutional rights of citizens and level the legal playing field.

Under this Act, a citizen who felt that his or her constitutional rights had been violated could sue a government official or entity and receive attorney's fees if they win.

This was important legislation, and it has served a great public good. But it has also served to catalyze a form of litigation since the advent of decisions by the United States Supreme Court in the 1960s and 1970s that moved away from our historical view that the freedom of religion was not the freedom from religion, and it has become a tool, I say very respectfully, to their cause. It has become the tool of elements who would advance a radical secularist view of the public square in America, and who have used the opportunity to access the public Treasury in the form of attorney's fees to not only finance massive litigations against government entities to scrub our public square of any vestige of reference to God or reference to the religious heritage of the American people, but also it has been used to prevent that day in court from happening.

The availability of massive amounts of attorney's fees have caused many municipalities, even some in Indiana, to relent in their fight to preserve the public display of the Ten Commandments or references to God in the public square because of the local government's inability to access Federal funds to pay their attorney's fees.

So in a very real sense the unintended consequence of the 1976 law was to take a playing field that was imbalanced to one side and make it imbalanced to the other. And today, because of Congressman John Hostettler's leadership in the Public Expression of Religion Act, we are leveling the playing field once again. We are saying to every American who believes in their heart that ``In God We Trust'' should not appear in the well of this Congress as it does behind me, that every American who thinks there should be no reference to religion in the public square whatsoever, it says to every American whose view of the Constitution is that the Establishment Clause is somehow an antiseptic to remove any reference to our religious heritage in this country, it says: The courts are open to you, but the Treasury is not.

As we might say in Indiana, where I was born and raised and lived, that, to put it very plainly, I may fight to the death for your right to hold the views that you hold, but that doesn't mean that I have to pay for it.

And because of Congressman Hostettler's leadership on the Public Expression of Religion Act, we say the courthouse doors are open to anyone who would challenge the public expression by local governors or government officials the acknowledgement of the deep and rich heritage over hundreds and hundreds of years of the American people, who we would say, in this instance, in these cases, the public treasury is not open. Raise your money, bring your challenges, and let the court work its will.