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A new online petition asks Congress to change a specific civil-rights statute in hopes of preventing the American Civil Liberties Union from collecting attorney fees from taxpayers of local governments the organization takes to court.
The effort – spearheaded by Craig McCarthy of CourtZero.org, a site dedicated to stemming judicial activism – seeks to change 42 U.S.C., Section 1988, of the United States Code. The statute now allows judges to award attorney fees to plaintiffs in civil-rights cases brought against local governments, thereby putting the taxpayers on the hook and oftentimes funneling public money to the ACLU. McCarthy wants the law changed so cases involving the Establishment Clause of the First Amendment would not apply.
When the ACLU takes a city to court claiming a Christmas display violates the Establishment Clause, for example, if the municipality loses, the city’s taxpayers would not have to pay ACLU attorneys. Ending the financial incentive, McCarthy says, would cause the ACLU to decrease their anti-religion litigation.
“Asking the ACLU directly to cease their destructive behavior is unlikely to have much impact,” McCarthy told WND, “but cutting off public funding of their activities would be both doable and effective.”
McCarthy gave some examples of the effect of the current law, citing the case of Los Angeles County, which was threatened by the ACLU over its seal, which contained a small cross. Many law firms offered to defend the county against the ACLU for free in that instance, but the county didn’t accept the offer. McCarthy says it’s because the real expense for the county would be in paying the ACLU’s attorney fees if it ultimately were to lose the case.
“Even if they get free attorneys, if they lose, the county’s on the hook,” he explained.
McCarthy also mentioned the Ten Commandments case in Alabama involving Judge Roy Moore, saying taxpayers there were ordered to pay the ACLU “at least half a million dollars.”
Though he says he understands the reasons for the fees, he thinks the Establishment Clause cases have gotten out of hand.
“I don’t want to throw out the baby with the bathwater,” McCarthy said, “but I think it would resonate with most people. The Establishment Clause cases have gotten silly. We’ve been doing this for 30 years about everything … it’s like the ACLU is going from town to town” looking for things to sue over.
“If you want to litigate Establishment Clause cases, have at it,” he said, “but it shouldn’t be taxpayer-supported anymore.”
The online petition states, in part: “The ACLU has declared war on the Boy Scouts of America, the military of the United States, Christmas displays, public buildings that display the Ten Commandments, and many other American traditions. …
“The vast majority of taxpayers do not want to be forced to pay the ACLU to sue their neighbors and friends in the ACLU’s efforts to strip America of all signs of faith. …
“We, The People, call upon our elected representatives to amend U.S.C., Section 1988, so that fees are not awarded to the ACLU or any other plaintiff in Establishment Clause cases. We wish for the Free Expression Clause to implicate at least the same financial incentives as attacks upon faith currently have.”
The Establishment Clause of the Constitution says, ” Congress shall make no law respecting an establishment of religion. …”
Stop ACLU before going to court
Attorney Mathew Staver says he understands McCarthy’s point but believes there’s a better way to go about it. Staver is president and general counsel of Liberty Counsel, a nonprofit religious-liberties law firm.
“What Congress ought to do is pass a statute that cuts back the standing of the ability to bring Establishment Clause claims,” Staver said, which would limit who could file such a suit.
He says currently anyone who is “offended” by what they see, a Ten Commandments display, for example, can bring suit.
“You can’t do that in any other area of litigation,” Staver said. “You’ve got to have a personal, direct injury. …
“They need to get to the root of it, and the root of it is not whether the ACLU can get attorneys’ fees,” he told WND. “The root of it is who can bring these lawsuits.”
Staver noted that the Supreme Court ruled against atheist Michael Newdow in the Pledge of Allegiance case because he didn’t have “standing” or authority to actually bring the suit.
He said he’s opposed to eliminating the provision for attorney fees for Establishment Clause cases.
Instead, he said, “you ought to stop them before they can get to the courtroom.”
The attorney said there are some discussions on the federal level about limiting the standing on Establishment Clause cases.
Destroying the cross
The American Legion Department of California earlier this year passed a resolution also calling on Congress to eliminate the financial incentives for the ACLU in Establishment Clause cases.
It asks Congress to “amend 42 U.S.C., Section 1988, to expressly preclude the courts from awarding attorney fees under that statute, in lawsuits brought to remove or destroy religious symbols.”
According to a report in the Record Gazette or Banning, Calif., the resolution was sparked by the decision of the Ninth Circuit Court of Appeals upholding the ACLU’s claim that the solitary cross at what is now officially the Mojave Desert Veterans Memorial violates the First Amendment and must be taken down.
Robert Castillo is a member of the veterans group and was part of the D-Day Normandy operation of World War II.
“I can’t believe that Congress is allowing judges to give the ACLU thousands of dollars to sue to get rid of a cross at a veterans memorial when we are sending kids to war again to defend our freedom against terrorists,” Castillo told the paper.
“The ACLU has gone too far. There are 9,000 crosses and Stars of David at Normandy. My buddies are buried there. If the ACLU can destroy the cross at the Mojave Desert Veterans Memorial, then they can destroy the crosses at Normandy, or Riverside Veterans Memorial Cemetery, or Arlington National.”
McCarthy says he hopes to get some signatures on the petition and then begin “shopping it around” Capitol Hill for sponsorship.
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