Left wing crusades to shut down religious expression are becoming big business in America, with funding from you, the American taxpayer.
Federal legislation enacted 30 years ago provides that attorneys successfully suing federal, state or local governments for violations of constitutional or civil rights are entitled to recover attorneys’ fees from the Defendant government. This law is highly desirable for low and moderate income citizens to protect their basic rights in court, for they are likely to be unable to finance costs and legal fees for such litigation on their own.
But no one thought at the time that this meant taxpayers would have to pay organizations like the ACLU for legal fees for suing local governments to force the Boy Scouts out of public facilities. Or for suing to shut down Christmas displays, or to tear down monuments including the Ten Commandments, or to rip crosses out of veterans memorials.
Yet, this is exactly what the attorneys fees statute is being used for today. The ACLU received $950,000 from the City of San Diego for a lawsuit demanding that the City throw the Boy Scouts out of a city park where the Scouts had operated camping and recreational facilities open to the public for decades. In financing those facilities themselves, the Scouts had saved city taxpayers millions over the years.
In Virginia, the ACLU received $106,000 for a lawsuit alleging that local government library policies preventing children from accessing pornography on public library computers violated the constitutional rights of the children.
In Alabama, the ACLU received $549,000 from the state for a lawsuit to remove a Ten Commandments monument from a courthouse. In Indiana, the ACLU received $63,000 in attorney’s fees for just threatening to sue over another Ten Commandments monument.
Again, when federal, state or local governments have to pay attorneys’ fees to the ACLU for such cases, the money comes from the taxpayers. But these cases do not involve the kinds of basic rights that should warrant such taxpayer funding.
If the members of the ACLU object to the association of a government with the Boy Scouts, or to the expression of religious sentiments on public property, they can pool their money and finance that lawsuit themselves. When the ACLU brings such a lawsuit and loses, it does not now have to pay back the taxpayers for the costs and attorneys fees they incurred to defend against the lawsuit.
Indeed, the ACLU uses the federal attorneys’ fee statute today to get government funds even when it doesn’t win, but just settles the lawsuit. The ACLU simply tells the government defendant that it will not settle the case unless the settlement includes the attorneys’ fees the organization could get if it won the case in court.
Moreover, the ACLU is even using the attorneys’ fees statute to receive fees for just threatening a lawsuit. It tells local governments that if it is not paid attorneys fees in response to a threat of legal action, it will go ahead and file the suit, regardless of the merits.
Even worse, the ACLU uses the threat of an award of attorneys fees to intimidate financially strapped local governments to give in to ACLU policy demands even when the organization’s legal position is not valid. Many of these local governments cannot afford to pay a million dollars to the ACLU for supposed attorneys fees, besides paying for its own defense. Even when the ACLU appears to be wrong under the law and the local government correct, the local government cannot take the financial risk of defending against the lawsuit.
Legislation is now pending in Congress to stop this travesty and abuse of taxpayers. On September 26, 2006, the U.S. House of Representatives passed the Public Expression of Religion Act.
That bill would end the Federal mandate for the ACLU and other plaintiffs to recover attorneys’ fees from taxpayers in cases based on the establishment of religion. That would stop most of the abuses like those discussed above. A companion bill has been introduced in the Senate. But that bill must be passed before the current Congress ends its last session before Congress.
More needs to be done to stop organizations like the ACLU from winning huge awards of taxpayer funds for pursuing cases involving their ideologically driven far left agenda rather than true basic rights. But the currently pending legislation would be a huge step in the right direction.
Peter Ferrara is General Counsel of the American Civil Rights Union