Dembski’s Sycophant-in-Chief has a brief post supporting the passage of HR 2679. It’s predictably ill-reasoned.
This bill, introduced in the U.S. House with 50 cosponsers, seeks to bar awarding attorney’s fees in lawsuits involving the 1st amendment establishment clause and limit the awards to injunctive relief. The multi-million dollar attorney fees collected by the ACLU have had a chilling effect on the religious freedom clause of the 1st amendment.
One can argue, of course, over the proper balance between the establishment clause and the free exercise clause. But even if one believes that things have tilted too far toward establishment clause overreach, it isn’t the awarding of attorney’s fees that is the cause of it, it’s the fact that the plaintiffs in such cases have arguments that win in court. Remember, you only get awarded attorney’s fees if you win the case, which means that trying to take away the reimbursement is, in effect, trying to punish the side with the better arguments. The fact that such a change is only being pushed by those generally on the losing end proves that to be true. In essence, they are trying to rig the game because they’re losing the game. But the fact is that plaintiffs in free exercise cases also get reimbursed. The ACLU has taken lots of free exercise cases to court as well, and won them, and gotten legal fees awarded.
The premise behind this is that a citizen should not have to pay an enormous legal bill in order to keep the government from violating the Constitution (and remember, the only way to stop the government from acting unconstitutionally is to file a suit, the courts cannot rule in the absence of one). Without the possibility of such reimbursement, only the wealthy could ever afford to file such suits. As it is, however, if you have a winning case you can find a law firm to take your case with the confidence that they’ve got a winning argument and can at least break even on the case (and that’s all they generally do; the legal fees awarded are typically on the order of 1/3 of the total legal bill).
So what these folks want to do is keep the same rules for those trying to keep the government from violating any other part of the Constitution, but change the rules in the one area in which they have a tough time winning. And why? Because they want the government to violate that clause of the Constitution (or at least the way the courts have interpreted it), and by making it financially impossible for people to bring such suits, the government will be given carte blanche to do so.
Because of this public officials no longer ask “is this the right thing to do?” but rather “can we afford to lose a legal battle with a vast hoard of ACLU attorneys?”. Financial intimidation like this is just plain un-American and wrong.
There isn’t a shred of evidence for this claim. In fact, there is considerable evidence against it. Public officials continue to do things that are clearly unconstitutional under court precedent even when advised of that. Just look at the Dover school board. They were told by their own attorney that if they passed their ID policy, they would lose in court and it would cost them a fortune. They were told even by the main ID organization that this would happen. They did it anyway.
And bear in mind that it’s only “financial intimidation” if one disagrees with the outcome. The high school in Henderson, Nevada who cut the microphone on the valedictorian speech is also facing a lawsuit that may cost them millions in legal fees due to the very same Federal law. Is that “financial intimidation” and “un-American”?I doubt DaveScot would say so (nor would I, since I think the school was wrong as well). If the school can make their case in court, they’ve got nothing to be intimidated about. If they can’t, they shouldn’t be doing it anyway.