The rule here [in the United States] has long been that attorneys' fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor.

– The United States Supreme Court, 1967 (Fleischmann Distilling Corp. v. Maier Brewing Co.)

Last week the U.S. House of Representatives passed the Public Expression of Religion Act of 2006, H.R. 2679, a bill that stops the ACLU and other public-interest law firms from collecting taxpayer-funded attorneys' fees in Establishment Clause cases. Co-sponsored by Rep. Robert Aderholt of Alabama, the important measure has stalled in the Senate because it was not given priority before the members headed home to campaign prior to the November elections. It deserves to be considered in the lame duck session or resurrected next year!

The American Rule in lawsuits, which the United States Supreme Court stated in 1967, is that unless otherwise stated in the law or by contract, each party is responsible for paying its own attorneys' fees regardless of who wins the case. The rationale behind the rule is simply that a person should not be discouraged from seeking redress for a perceived wrong in the courts because of the fear of having to pay the opposing party's fee in addition to his or her own if he or she should lose the case.

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Nevertheless, in 1976, Congress amended provisions of the Civil Rights Act of 1964 to allow a prevailing plaintiff in a case involving a violation of his or her constitutional rights to recover attorneys' fees from the defendant. According to the Senate report on the amendment, Congress passed this legislation to encourage poor victims to seek vindication of their rights and to discourage federal, state and local governments from committing such violations.

However, the Public Expression of Religion Act now properly recognizes that this "loser pays" rule is antiquated in Establishment Clause challenges because nearly all of them are brought by wealthy public-interest law firms – such as the ACLU and Americans United for Separation of Church and State, or AU – that represent their clients for free. Instead of declining to accept these fees, these anti-Christian law firms use the fee awards as legal blackmail against small county and municipal defendants that do not have the tax revenue to cover such fees if they lose. Establishment Clause jurisprudence has become so antagonistic to expressions of our faith that many local governments are not willing to gamble with taxpayer money and therefore surrender to ACLU demands that every vestige of religion be removed from the public square. Often a threatening letter or phone call from the ACLU is all it takes for these governments to give up without a fight.

A survey of recent legal fee awards in these cases shows why governments are reluctant to defend the right to publicly acknowledge God. In San Diego, Calif., the ACLU received $940,000 for kicking the Boy Scouts out of Balboa Park. In Barrow County, Ga., the county paid the ACLU $150,000 to avoid a trial for its posting the Ten Commandments in the county courthouse. Not to be outdone, in Dover, Pa., the trial court ordered the district's school board to pay the ACLU and AU $2 million for attempting to teach intelligent design in the schools.

Not surprisingly, Barry Lynn, the executive director of AU, expressed displeasure over the House's approval of the proposed legislation, stating, "The bill seeks to slam the courthouse doors on citizens who challenge government-sponsored religious activities. It is a repugnant affront to the civil rights of all Americans." The ACLU joined Lynn with a press release warning that passage of the Public Expression of Religion Act would "deter attorneys from taking cases in which the government has acted unconstitutionally."

In essence, Mr. Lynn and the ACLU are admitting that if this bill passes, their "public interest" groups will no longer take these cases because they will not be able to recover attorneys' fees from the government. But that is precisely the point! Attorneys for such groups are actually forbidden from charging their clients fees for their services because they are designated as nonprofit organizations. Thus, the fee awards they receive from these Establishment Clause cases amount to profiteering. The national ACLU takes in over $48 million per year and Barry Lynn's group averages over $8 million annually. It is preposterous to claim that such wealthy and ideologically driven organizations would not be able to afford such lawsuits if they could not get their legal fees paid by the losing party.

What these organizations are really afraid of is that if the legislation passes, they will lose a valuable intimidation tool against state and local governments in these kinds of cases. Indeed, in the Dover intelligent design case, the school board settled with the ACLU and AU for $1 million in legal fees after the court had ordered them to pay a larger award. Upon reaching the legal fee settlement, AU assistant legal director Richard Katskee stated, "Any board thinking of trying to do what the Dover board did is going to have to look for a bill in excess of $2 million." Could there be more blatant proof that such groups use the "loser pays" rule to bully and punish local governments?

If state and local governments did not have to face the prospect of paying such legal fees, more of them would stand up for our religious freedom. Eventually, anti-Christian organization like the ACLU and Barry Lynn's organization would realize that picking these fights is no longer profitable. I encourage you to support the Public Expression of Religion Act in 2007 to ensure that our most valuable right, that of religious liberty, is made secure.

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