Those who oppose a pending Congressional plan to prevent judges from awarding huge attorneys’ fees in lawsuits over old Ten Commandments monuments or crosses on remote rocks are summoning an old political adage for help in their fight.
It goes: If you can’t beat them with facts, baffle them with, well, something else.
An example comes from this week’s Los Angeles Times, in which a report said the Public Expression of Religion Act, just approved in the U.S. House and pending in the Senate, would “prevent plaintiffs from recovering legal costs in any lawsuit based on the Establishment Clause.”
“False,” said Rees Lloyd, a former American Civil Liberties Union attorney and now commander of American Legion District 21 (California). “PERA only affects attorney fees, the traditional costs are not affected.”
The distinction is important because those costs are legitimate awards in court cases that have a valid point, Lloyd told WND in an interview. But the target of the legislation is the massive – sometimes millions of dollars at a shot – “fees” awarded to attorneys by activist judges.
He said the “wrath of the ACLU” has been ignited because that organization, probably more than any other, has used the attorney fees privilege under present law to threaten cities and counties with devastating bills if they don’t buckle to ACLU demands.
An example, he said, is Los Angeles itself, where the governmental board not many years back decided to change its formal seal to meet a demand from the ACLU. The seal had included a tiny cross, which acknowledged the region’s founding by Christian missionaries.
The ACLU threatened a lawsuit, and with the current legal authorization for just about any amount of attorneys’ “fees” that the government would have to pay if the case was resolved in favor of the ACLU, the leaders opted for the less-expensive resolution of buckling under.
If PERA is signed into law, it still will allow a judge to make an independent decision in such cases, and still will allow the awarding of the “costs,” such as filing fees and witness expenses.
It just removes the ability of ACLU lawyers to file lawsuits against Nebraska counties, Montana cities and Iowa jurisdictions and threaten those small-budget groups with million-dollar legal fees.
Congressman John Hostettler
Indiana Congressman John Hostettler sponsored the House measure, approved this week 244-173, and his spokesman, Matthew Faraci, called the current provision a “sword of Damocles” hanging over every potential defendant in such cases.
“It is outrageous,” said Hostettler, “that public officials have been threatened with the prospect of financial ruin merely because they wish to defend their constitutional rights in a court of law. My legislation allows these folks to have their case heard before a judge rather than settling it out of court.”
Lloyd said the American Legion has been unable to intervene as a full party in such cases and is limited to participation through friend of the court briefs because the law would allow a judge to assess even those parties budget-busting legal “fees.”
“Los Angeles Times on one end of the country and Washington Post on the other both informed Americans that plaintiffs in Establishment Clause cases will no longer be able to recover their ‘costs’ because of PERA,” Lloyd told WND.
But he said that’s just wrong.
Lloyd, who now is director of Defense of Veterans Memorials Project, also said the ACLU is repeating the claim that veterans are “spreading the myth” that veterans cemeteries are potential subjects of Establishment Clause attacks – and the subsequent demands for attorney fees.
But that is, in fact, a fact, he said.
He said a representative for the American Jewish Congress, a supporter of ACLU efforts on the subject, admitted in Congressional hearings they view the attorney fees “as a club” to be used against local governments.
And Lloyd also said that the ACLU in California, during the dispute over a cross at the Mt. Soledad Veteran’s Memorial in California, said it wanted to use that case to set a “national precedent” affecting “all religious symbols.”
“That means the ACLU would like to run the U.S. with one lawyer sitting as a judge and decide for 300 million Americans how to honor veterans,” Lloyd told WND.
On March 15, 2001, county officials in Iowa succumbed to pressure and removed a historic Ten Commandments monument from a courthouse grounds, and Ben Stone of the Iowa Civil Liberties Union said a goal was “to spare the community a divisive and costly lawsuit.”
In another case, a “civil liberties” group went even further, sending letters to teachers and principals at schools, telling them if they had a “prayer” at a school event, they would be sued, officials told WND.
Hostettler’s plan is H.R. 2679, which would change the 1976 Civil Rights Attorney’s Fees Awards Act.
That act was intended to help individual people bring suit against state officials who had deprived them of constitutional rights.
It developed, however, into a situation that has been “used” by groups like the ACLU, which alleges that any public official who expresses religious beliefs or displays a memorial with religious imagery – like crosses at Arlington National Cemetery – is promoting “an establishment of religion”
In a recent column for WND, Lloyd noted that the ACLU was given $63,000 for suing to have a solitary cross erected by veterans in 1934 on a remote rock outcrop in the Mojave Desert removed. The organization tried to include as a plaintiff one man who admitted he never had even seen the cross before suing to destroy it.
“The American Legion remains committed to preserving Veterans’ memorials from the greedy litigations brought on by the ACLU,” said Paul Morin, the current Legion national commander.
Sen. Sam Brownback has sponsored a companion piece in the Senate, and since that body already formally has endorsed the idea addressed by the law, in a decision to protect the cross monument at Mt. Soledad, Faraci and Lloyd believe there should be approval for this plan, too.
Disputed Mt. Soledad cross near San Diego
“It’s our hope because PERA passed with such a resounding success in the House the Senate will notice that and see how much the American people want this bill,” Faraci told WND.
Lloyd said the ACLU’s assurance that it “won’t sue” over grave marker crosses at Arlington and other such symbols doesn’t mean much, either. “There are jihadists perfectly willing to sue.”
Lloyd also noted the ACLU has claimed nationally that gravestones have been “deemed” constitutional because families, not the government, choose the religious symbols. However, he said the truth is no court of precedent has ever “deemed” that it is constitutional for the government to allow and pay for gravestones bearing religious symbols at veteran cemeteries, on the basis that families, rather than the government, chose the symbol. The ACLU has cited no such decision; and none has been found to exist, he said.
The ACLU said it was “dismayed” as the bill moved through the House, saying it would bar attorney fees to those who are “asserting their fundamental constitutional and civil rights.”
However, Lloyd said virtually all of those cases are filed because someone is “offended” at the sight of an almost-always Christian symbol, and there’s no constitutional guarantee against being offended by symbols of the nation’s founding heritage.
The Mt. Soledad lawsuit cites someone who is “discomfited” by seeing the cross.
One comment by Jim, on Stop the ACLU summed it up: “The ACLU, drive-by media and liberals everywhere will no doubt respond by promoting their leftist interpretation of one of the Constitution’s simplest statements.”
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” he quoted. “As with every sentence of the Constitution, this clause limits the power of government, NOT the power of individuals. So, where does the ACLU get off using the power of government to limit an individual’s ‘free exercise of religion?'”
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