Dispatches from the Creation Wars

DaveScot on HR 2679

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.


  1. #1 kehrsam
    June 28, 2006

    It’s not as if it is easy to get a lawyer for these types of cases now. A local Ten Commandments case was delayed for years while the plaintiff sought a law firm willing to see the case through to completion. By the time one was found (100+ miles away) the Plaintiff had died and the case was mooted. Unless you live in a major city, this is not at all unusual.

    With the exception of freedom of the press issues, civil rights law is not considered a plum field. The hours are long, the pay is lousy (comparitively) and usually the deck is stacked against you. And if you take a local case, the media calls you names and your kids get harrassed at school. So, yeah, take away the payday and all that’s left is the glamour.

  2. #2 Ed Brayton
    June 28, 2006

    That’s what many people don’t realize about the ACLU – they don’t handle many cases themselves, especially ones that go to trial. Each ACLU affiliate has one staff attorney, and even that is a relatively recent phenomenon (prior to that, many chapters had none at all). When a potential case comes up, they have to find attorneys or firms who will agree to take the case pro bono and hope that they’ll win the case so they’ll get a portion of the cost reimbursed. That fact alone acts as a check on outrageous lawsuits – what firm is going to take on a case they aren’t relatively certain they can win and risk the enormous revenue loss from it? That’s why this whole issue over reimbursement is all about rigging the game – the problem is that the other side keeps losing those cases and they’re upset about it.

    Sometimes those cases are taken on by large law firms, like in the Dover case where Pepper Hamilton stepped up big time. Most firms do pro bono work, but they generally give the case to their newest associates, ones that need experience and don’t have a big client list. Pepper Hamilton assigned 3 partners and 2 associates to the Dover case, which is almost unheard of. Conversely, in the Cobb County case going on right now, the case is being handled by a volunteer attorney named Michael Manely who is a one-man firm without the deep pockets of a Pepper Hamilton. If he doesn’t get some of those costs reimbursed, he’s gonna take a hell of a hit financially. He’s not in it alone, there are a couple of ACLU staff attorneys helping out, but they’ve got other cases going and so does he. So he’s devoting a ton of otherwise billable hours to a case he may end up making no money on. That’s a hell of a risk to take and it restrains the kinds of cases that can be brought. The only exceptions, like the cases Michael Newdow has brought, are there only because he represents himself.

  3. #3 mark
    June 28, 2006

    The Dover case is a good one to bring up because the $1M cost had consequences–the pro-Creationist school board was voted out, likely in large part because they were responsible for that cost. I think other school districts have looked at that cost if they’ve been considering bringing Creationism into their classes. If that cost did not have to be paid, some districts might go ahead and try to get away with unconstitutional actions. Like a child who might try to disobey his parents unless threatened with a spanking.

  4. #4 Ed Brayton
    June 28, 2006


    And that’s exactly why the right is pushing this bill. They keep losing those cases, and they want the school boards to be able to push such policies with impunity, so they’re seeking a way to keep those suits out of the courts to make up for their lack of ability to win them. Let’s call it the Tonya Harding strategy – they know they can’t beat em in court, so they have to hobble them on the courthouse steps.

  5. #5 Troublesome Frog
    June 28, 2006

    It looks like DaveScot is now pushing the idea that constitutional issues should be settled by a jury rather than by egghead constitutional scholars like judges.

New comments have been disabled.