Dispatches from the Creation Wars

Gribbit’s Predictable Absurdity

Gribbit is proving to be the political equivalent of Old Faithful – every 8 minutes or so, you can be assured that he’s going to spew some utter nonsense into the air. His latest concerns HR 2679, the bill that would eliminate legal fee reimbursement for establishment clause cases. In it, he demonstrates all of the irrationality and hypocrisy we’ve come to expect from him:

PERA would eliminate the ability for judges to award attorney’s fees compensation to groups like the ACLU in Establishment Clause cases only. These fees where originally authorized by CONGRESS so that good attorneys wouldn’t be dissuaded from accepting civil rights cases pro bono.

But in the hands of the ACLU it has become a source of income for the organization. In any other type of lawsuit, ie: personal injury, the attorney’s fee if any comes out of the settlement with their client if they prevail. But not under the law authorizing these fees.

But of course the exact same thing is true of any organization that represents clients in any civil rights cases. For the Alliance Defense Fund, the Christian Legal Society, the American Center for Law and Justice, the Thomas More Law Center and other conservative legal groups who file frequent lawsuits against governmental bodies in free exercise, free speech and even establishment clause cases, it is precisely the same “source of income” for those organizations. If they win their case, they get a portion of the legal fees reimbursed.

Gribbit recognizes the rationale behind the law as it stands now. Fee shifting was designed to do two things – allow plaintiffs to attract quality legal representation, and insure that no citizen had to bear the cost of stopping the government from acting outside the bounds of its constitutional authority. What Gribbit is not bright enough to do is come up with any coherent reason why such principles should apply in all cases except establishment clause cases. That’s because there is no coherent reason for such a distinction. If the government is acting beyond it’s constitutional authority, regardless of what provision it is violating, a citizen should not have to be independently wealthy in order to bring a suit to force it to stop acting in that manner. And that is precisely what HR 2679 would do.

The ACLU actively shops around for reasons to challenge any public displays of religion in order to collect these “attorneys’ fees”. This has led to a systematic removal of your Constitutional protections under the 1st Amendment to freely exercise your religious beliefs. They accomplish this by judge shopping. They shop for a district to present a case in. A district in which one of their “best buddies” activist judges will hear the case and more often than not, rule in the favor of the ACLU.

This, to put it mildly, is utter bullshit. The ACLU has zero control over what judge gets assigned a case. Every judicial district has a mixture of judges and when a suit is filed in that district, they have no idea what judge is going to get the case. Look at the Dover case, where it was assigned to a conservative Christian judge appointed by Bush, much to the delight of the anti-ACLU crowd. Yet the outcome was a big disappointment for them. The same is true of the EFF case against the NSA, where the other side was thrilled to have gotten a very conservative judge – who promptly ruled the other way.

Like it or not, most judges are not swayed by political motivations. They hear the case in front of them and do their best to make a solid, well-reasoned ruling based on the precedents as applied to the facts in the case. What Gribbit and the rest of the STACLU crowd are bothered by is the fact that the ACLU wins so many of their cases, and they want that to stop. And rather than doing that the right way, by coming up with stronger legal arguments to use in court, they want to rig the game to make it more difficult to bring such cases in the first place. This is intellectual cowardice.

The ACLU prefers to bring these types of lawsuits against cities, towns, and states which are usually cash strapped. First it is a matter of sending a letter to the governing body recommending that they cease and desist from further allowing public displays of religion. That if they fail to do so, it will cost the city, town, or state massive amounts of money to defend against them in court. And usually, a city or town is likely to not challenge. They will capitulate to the will of the ACLU. But if it does come to trial and they prevail, the amounts awarded to the prevailing party are often compounded by the amounts awarded to the ACLU attorney(s) for fees that had they NOT prevailed, would have gone uncollected.

More nonsense. In establishment clause cases, there are virtually never anything more than nominal damages asked for or awarded. So this notion that the awarding of legal fees “compounds” the amounts awarded to the prevailing party is simply false. In Dover, for example, they asked for $1 per plaintiff, and that is standard in establishment clause cases. I can’t think of a single establishment clause case that asked for damages beyond the most nominal, and only then for strategic reasons.

Note also that there is an internal contradiction here. On the one hand, they claim that the ACLU is getting rich be fighting so many cases against cities and towns; on the other hand, they claim that cities and towns immediately capitulate because of the threat of having to pay legal fees. Well which is it? If they immediately capitulate to avoid having to pay the fees, then there wouldn’t so many cases in which legal fees could be awarded. The fact is that cities and towns fight the ACLU all the time (and sometimes they’re even correct to do so), but it’s only if they lose in court that they have to pay the fees.

This is extortion. Do what we tell you or something bad is going to happen. Pure unadulterated extortion.

But there’s no logical reason why this is extortion but the ADF suing the Cupertino school district, for instance, is not. Had they won the case, they would have been awarded legal fees as well. As it turns out, they caved in when it became clear they were going to lose in court. The same is true in every similar case. If the ADF is successful in its suit against the University of California system, it will be awarded legal fees. If the Rutherford Institute is successful in their suit representing Brittany McComb (as I hope they will be), they will be awarded legal fees. But they are doing nothing different from what the ACLU is doing, representing a client against the government because they believe the government is acting unconstitutionally. And when a citizen believes the government is acting unconstitutionally, and they prove their case in court and win, they should not have to pay the cost of fighting the government.

It is these practices that the Public Display of Religion Act of 2005 (H.R. 2679) promises to eliminate so of course the ACLU would be opposed to its passage. They aren’t interested in protecting your right to freely express your religious beliefs in public.

Typical anti-ACLU rhetoric, skipping right over that distinction between an individual’s right to freely express their religious beliefs in public (which the ACLU consistently supports) and having the government endorse a given religious belief (which they oppose, if sometimes a bit too zealously). It is a lie to claim that the ACLU aren’t interested in protecting the individual’s right to express their religious beliefs in public. If that was true, then why would they defend the right of preachers to preach on public sidewalks all over the country? Or the right of churches to use public parks for baptisms?

But here’s my favorite idiotic argument:

The so-call establishment clause only appears one place, in the first Amendment.

Uh, okay. It only appears one time…and therefore….what? The free exercise clause only appears one time. In fact, all constitutional provisions only appear one time. What’s the magic number before it becomes important, 2? 3? This is rank stupidity. Then he gives the standard rhetoric we hear from his side all the time:

The leftists at the ACLU are addicted to abusing the so-call protection of separation of church and state. Which is a fantasy created by people like the ACLU in order to have grounds in which to remove religion from the public sphere. Here’s what it actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Amendment I of the United States Constitution

Where is this phantom “separation of church and state”? I don’t see it mentioned.

Such a stupid argument. Gee, I don’t see “checks and balances” or “separation of powers” anywhere in the Constitution either. Does that mean they don’t exist? Of course not. Those phrases are descriptions of various constitutional provisions. Those descriptions were given not by the ACLU or by “liberal judges” but by the founding fathers themselves. James Madison, the man who wrote the first amendment, used that phrase, and similar ones, to describe the intent of the first amendment. Other founders differed with him on the scope and meaning of those clauses, of course, but only an idiot or a liar would claim that the analogy was invented by the ACLU.

To be continued…the next time Old Faithful spews its nonsense.


  1. #1 kehrsam
    July 28, 2006

    Wow, Gribbit is wrong on so many levels and details that it boggles the mind. He thinks that GOVERNMENT does not have sufficient resources to bring these cases to trial? I guess Norquist’s plan of “drowning it in the bathtub” has been a success and nobody bothered to tell me.

  2. #2 llDayo
    July 28, 2006

    Let’s see, the government doesn’t have the money to fight these cases but it can spend billions on the failed “War” on drugs or the Iraqi war. The government wastes so much money on stupid things already but to turn around and claim they can’t afford the resources for trials is damn near neurotic!

  3. #3 Ed Brayton
    July 28, 2006

    To be fair, he’s speaking of local school districts like Dover, and he’s right that they can’t really afford to lose million dollar verdicts. There’s not just one big pool of money called “government”; some government agencies are far less able to absorb that kind of loss than others, and in a local school district a loss can indeed be disasterous. What he’s ignoring, of course, is that the exact same thing is true when groups he supports sue a school district for a free exercise clause violation (like in Lamb’s Chapel or the Cupertino case, or the McCombs case in Nevada, or any of a thousand other cases. He doesn’t really object to suing school districts, he just doesn’t agree with the outcomes in those cases. Thus, his dishonest and inconsistent rhetoric – if he doesn’t like the outcome of the case then it’s “bullying” or “extortion” by the big bad ACLU against those helpless school districts; when he likes the outcome, it’s the brave David (the ADF or the ACLJ) fighting against the big bad Goliath of the government.

  4. #4 qetzal
    July 28, 2006

    I love the extortion argument. I wonder if I can use that myself?

    No more speed limit – that’s extortion: Do what we tell you (drive at the posted speeds) or something bad is going to happen (speeding tickets and fines).

    Income taxes? Pure unadulterated extortion: Do what we tell you (pay taxes) or something bad is going to happen (we’ll seize your assests and put you in jail).

    In the words of the immortal Inigo Montoya: “You keep using that word. I do not think it means what you think it means.”

  5. #5 mark
    July 28, 2006

    With respect to Dover, if it only cost the school district a couple dollars, it would hardly serve as a deterrent to other districts trying the same thing (or to Dover for trying it again). And since the Court found Dover was wrong (acted in an unconstitutional manner) to do what it did, it is proper to provide a deterrence.

  6. #6 Matthew
    July 29, 2006

    I don’t understand how something can be called extortion when the law is on your side. It doesn’t have the same cowering-in-fear factor as, you know, roughing up the local diner owner for not paying his protection tax on time.

  7. #7 CPT_Doom
    July 29, 2006

    Well, you have to hand it to the guy – he has discovered the secret, hidden truth: Lawyers get paid for their work! And I thought they were in it for their love of the law – sheesh!

    Of course, the other not-so-secret argument he is making is that the evil ACLU is getting rich off of these cases – it’s one of the classic anti-gay arguments, and fund-raising appeals, conservatives love as well – the gays are all rich so we need more of your $$ t o fight them. Now I have never been to any ACLU offices, but I am going to guess they don’t use a lot of marble and gold plating in their decor.

  8. #8 Matthew
    July 29, 2006

    That certainly is true, and this is about as intellectually dishonest as one can get. HR 2679 is targeted at one particular group that is disliked. It has an arbitrary exemption meant to make it more difficult to bring up establishment cases. Effectively it rewrites the first amendment by making it almost nonenforceable. I can’t imagine every voting for someone who supports it, because it’s basically an admittance that they have no principles.

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