49–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 109–657 

VETERANS’ MEMORIALS, BOY SCOUTS, PUBLIC SEALS, 

AND OTHER PUBLIC EXPRESSIONS OF RELIGION PROTECTION ACT OF 2006 

SEPTEMBER 14, 2006.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 2679] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 2679) to amend the Revised Statutes of the United States to 

eliminate the chilling effect on the constitutionally protected expression of religion by State and local officials that results from the 

threat that potential litigants may seek damages and attorney’s 

fees, having considered the same, report favorably thereon with 

amendments and recommend that the bill as amended do pass. 

The amendments are as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Veterans’ Memorials, Boy Scouts, Public Seals, and 

Other Public Expressions of Religion Protection Act of 2006’’. 

SEC. 2. LIMITATIONS ON CERTAIN LAWSUITS AGAINST STATE AND LOCAL OFFICIALS. 

(a) CIVIL ACTION FOR DEPRIVATION OF RIGHTS.—Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended— 

(1) by inserting ‘‘(a)’’ before the first sentence; and 

(2) by adding at the end the following: 

‘‘(b) The remedies with respect to a claim under this section are limited to injunctive and declaratory relief where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion, including, but not limited to, a violation resulting from— 

‘‘(1) a veterans’ memorial’s containing religious words or imagery; 

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/1/For example, the Fifth Circuit Court of Appeals has called the Supreme Court’s Establishment Clause jurisprudence ‘‘rife with confusion.’’ Freiler v. Tangipahoa Parish Bd. of Educ., 185 

F.3d 337, 343 (5th Cir. 1999). And as one professor has written, ‘‘[T]he Supreme Court’s establishment clause jurisprudence has unified critical opinion: people who disagree about nearly everything else in the law agree that establishment doctrine is seriously, perhaps distinctively, 

defective.’’ Steven D. Smith, ‘‘Separation and the ’Secular’: Reconstructing the Disestablishment 

Decision,’’ 67 Tex. L. Rev. 955, 956 (1989). 

‘‘(2) a public building’s containing religious words or imagery; ‘‘(3) the presence of religious words or imagery in the official seals of the several States and the political subdivisions thereof; or ‘‘(4) the chartering of Boy Scout units by components of States and political 

subdivisions, and the Boy Scouts’ using public buildings of States and political 

subdivisions.’’. (b) ATTORNEY’S FEES.—Section 722(b) of the Revised Statutes of the United States 

(42 U.S.C. 1988(b)) is amended by adding at the end the following: ‘‘However, no 

fees shall be awarded under this subsection with respect to a claim described in subsection (b) of section nineteen hundred and seventy nine.’’. 

SEC. 3. LIMITATIONS ON CERTAIN LAWSUITS AGAINST THE UNITED STATES AND FEDERAL 

OFFICIALS. 

(a) IN GENERAL.—Notwithstanding any other provision of law, a court shall not 

award reasonable fees and expenses of attorneys to the prevailing party on a claim 

of injury consisting of the violation of a prohibition in the Constitution against the 

establishment of religion brought against the United States or any agency or any 

official of the United States acting in his or her official capacity in any court having 

jurisdiction over such claim, and the remedies with respect to such a claim shall 

be limited to injunctive and declaratory relief. 

(b) DEFINITION.—As used in this section, the term ‘‘a claim of injury consisting 

of the violation of a prohibition in the Constitution against the establishment of religion’’ includes, but is not limited to, a claim of injury resulting from— (1) a veterans’ memorial’s containing religious words or imagery; 

(2) a Federal building’s containing religious words or imagery; 

(3) the presence of religious words or imagery in the official seal of the United 

States and in its currency and official Pledge; or 

(4) the chartering of Boy Scout units by components of the Armed Forces of 

the United States and by other public entities, and the Boy Scouts’ using Department of Defense and other public installations. 

SEC. 4. EFFECTIVE DATE. 

This Act and the amendments made by this Act take effect on the date of the enactment of this Act and apply to any case that— (1) is pending on such date of enactment; or 

(2) is commenced on or after such date of enactment. 

Amend the title so as to read: 

A bill to amend the Revised Statutes of the United States to prevent the use 

of the legal system in a manner that extorts money from State and local governments, and the Federal Government, and inhibits such governments’ constitutional 

actions under the first, tenth, and fourteenth amendments. 

PURPOSE AND SUMMARY

Under current law, attorneys’ fees can be demanded by the winning side in lawsuits against States or localities and the Federal 

government—brought under the Constitution’s Establishment 

Clause—demanding that veterans’ memorials be torn down because 

they happen to have religious symbols on them; that the Ten Commandments be removed from public buildings; that the Boy Scouts 

be forced off public property; and that crosses be eliminated from 

official county seals, among other things. Caselaw under the Establishment Clause is so unpredictable that States and localities know 

defending themselves in such lawsuits is fraught with uncertainty./ 

1/ The threat of having to pay attorneys’ fees in such cases should 

they happen to lose sometimes leads States and localities to forego 

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/2/School District of Abington Township v. Schempp, 374 U.S. 203, 225 (1963) (quotations and 

citations omitted). 

/3/Local governments, but not State governments, are persons subject to §1983 liability. See 

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70 (1989); Monell v. New York City Dep’t 

of Soc. Serv., 436 U.S. 658, 690 (1978). However, State and local government officials are also 

persons under § 1983. As the Supreme Court stated in Will v. Michigan Dep’t of State Police, 

‘‘a state official in his or her official capacity, when sued for injunctive relief, would be a person 

under § 1983 because official-capacity actions for prospective relief are not treated as actions 

against the State.’’ Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989) (citing 

Kentucky v. Graham, 473 U.S. 159, at 167 n.14 (1985)). Section 2 of H.R. 2679 applies only to 

cases for prospective relief, namely injunctive and declaratory relief. 

/4/The First Amendment to the Constitution provides that ‘‘Congress shall make no law respecting an establishment of religion ...’’

/5/The Supreme Court has read fee-shifting statutes in such a way that they only operate to 

the benefit of those filing the lawsuits, not those defending the lawsuits. See e.g., Christianburg 

Continued 

suits—often before such cases even go to trial. H.R. 2679, the ‘‘Veterans’’ Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2006,’’ will address concerns 

that current law compels local, State, and Federal government entities to accede to demands for the removal of religious text and imagery when such removal is not compelled by the Constitution. 

BACKGROUND AND NEED FOR THE LEGISLATION

The Supreme Court has held that ‘‘the State may not establish 

a religion of secularism in the sense of affirmatively opposing or 

showing hostility to religion, thus preferring those who believe in 

no religion over those who do believe.’’/2/ However, contrary to that 

principle, current litigation rules allow some groups to compel 

States and localities into removing any reference to religion in public places. 

42 U.S.C. § 1983 is the Federal statute that allows people to sue 

States and local governments for alleged constitutional violations of 

their individual rights. 42 U.S.C. § 1988 is the Federal fee-shifting 

statute that allows prevailing plaintiffs in lawsuits filed under 

§ 1983 to be awarded attorneys’ fees from the defendant. Consequently, under 42 U.S.C. § 1983, anyone can sue State and local 

governments claiming their individual rights were violated and demand attorneys’ fees in the case if they prevail at any stage of judicial review./3/ Using these Federal statutes, groups like the American Civil Liberties Union (‘‘ACLU’’) can threaten to file lawsuits 

claiming cities and towns have violated the Establishment Clause./ 

4/ Towns know that a single adverse judgment at any level of the 

court system will require them to pay not only their own legal fees, 

but the ACLU’s as well. Localities could file an appeal of any such 

adverse judgment, but the appeal would cost additional money, 

money most towns don’t have to spend, especially when they face 

competing claims for spending on education and health care. As a 

result, localities are often required to capitulate to the ACLU’s demands at the outset of litigation because the costs to the town of 

complying with the ACLU’s demands are less than the costs of successfully litigating the case to a final judgment. Even if a locality 

wins the case after an extremely costly appeal, the locality will 

most likely not be awarded attorneys’ fees because the Supreme 

Court has set the standard for an award of attorneys’ fees to a prevailing defendant very high. Consequently, localities that are sued 

have little hope of being awarded attorneys’ fees even if they win 

the case./5/ 

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Garment Co. v. EEOC, 434 U.S. 412, 420 0922 (1978). In Christianburg, the Supreme held that, 

even though the statute on its face provided ‘‘no indication whatever of the circumstances under 

which either a plaintiff or defendant should be entitled to attorney’s fees,’’ an award of attorneys’ fees may be made to a successful defendant, rather than a successful plaintiff, in a Title 

VII action only if the court found that the plaintiff’s action was ‘‘frivolous, unreasonable, or without foundation.’’ Id. at 418, 421. This was because ‘‘Congress wanted to clear the way for suits 

to be brought under [Title VII],’’ id. at 420, in a manner that did not unduly stifle a plaintiff’s incentives to bring such claims. See id. at 412 (‘‘To take the further step of assessing attorney’s fees against plaintiffs simply because they do not finally prevail would substantially add to the 

risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. ‘‘). The Court elaborated in Hughes v. Rowe, 449 U.S. 5, 14 (1980) that, for a defendant to benefit from cost-shifting, ‘‘The plaintiff’s action 

must be meritless in the sense that it is groundless or without foundation. The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of 

fees.’’

/6/125 S. Ct. 2722 (2005). 

/7/25 S. Ct. 2854 (2005). 

This legal dynamic has provided enormous leverage to groups 

like the ACLU to require that State and local governments: tear 

down veterans’ memorials that happen to have religious symbols on 

them; remove the Ten Commandments from public buildings; force 

the Boy Scouts off public property; and eliminate crosses from official county seals. In short, 42 U.S.C. § 1983 and 42 U.S.C. § 1988 

often force localities to make the following choice: accede to the demands of the ACLU or similar organizations to remove religious 

words and imagery from the public square, or risk a single adverse 

judgment by a single judge that requires the payment of tens or 

hundreds of thousands of dollars in legal fees in a case too expensive to litigate through the appeals process. Consequently, local 

governments are being forced to agree to the demands of those 

seeking to tear down religious words or symbols and ban religious 

people from using the public square, even when permitting those 

religious words and expressions is constitutional. 

Contributing to this result is the fact that Establishment Clause 

law is one of the most unpredictable and confusing areas of law. 

As Professor Patrick Garry testified before the Constitution Subcommittee on June 22, 2006: 

The threat of an attorney’s fee award is particularly 

chilling because of the highly uncertain and inconsistent 

status of current constitutional doctrines governing the Establishment Clause. Over the past several decades, the 

courts have not only used an array of different constitutional tests for determining Establishment Clause violations, but have applied those tests in confusing and inconsistent ways. In 2005, for instance, the Supreme Court 

issued rulings on the same day in two cases involving the 

public display of the Ten Commandments. Those rulings, 

however, contained opposite holdings. In McCreary County 

v. ACLU,/6/ the Court found a framed copy of the Ten 

Commandments in a courthouse hallway to be an unconstitutional establishment of religion. But in Van Orden v. 

Perry,/7/ the Court upheld a Ten Commandments monument on the grounds of the Texas state capitol. Not only 

were the rulings different in the two cases, but different 

constitutional tests were used in each case. In Van Orden, 

the plurality opinion did not even mention what had, up 

to that time, become the most prominent test for judging 

public displays or expressions of religion—the endorsement 

test—nor did Van Orden employ the infamous Lemon test./ 

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/8/125 S. Ct. at 2861 (calling the Lemon test inappropriate for ‘‘passive’’ religious expressions). 

/9/463 U.S. 783, 792 (1983) (upholding the Nebraska legislature’s practice of opening sessions 

with a prayer by a state-employed clergy). 

/10/Van Orden, 125 S. Ct. at 2861 0963. 

/11/125 S. Ct. at 2869 (Breyer, J., concurring). 

/12/An injunction is ‘‘a court order commanding or preventing an action. To get an injunction, 

the complainant must show that there is no plain, adequate, and complete remedy at law and 

that an irreparable injury will result unless the relief is granted.’’ Black’s Law Dictionary (8th 

ed. 2004). Injunctions are enforceable by contempt proceedings and contempt is punishable by 

fine or imprisonment. See Black’s Law Dictionary (8th ed. 2004) (contempt). 

8/ Instead, the Court resorted to a somewhat infrequently 

used test articulated in Marsh v. Chambers:/9/ a test looking at whether there has been an unbroken tradition of 

certain religious acknowledgments, such as with the public 

display of the Ten Commandments./10/ Furthermore, the 

crucial fifth vote supplied by Justice Breyer in Van Orden 

appeared to rely on yet a brand new test—a ‘‘legal judgment’’ test that seems to call on justices to exercise their 

[subjective] common sense in cases such as these./11/ 

There have been and remain sharp disagreements between the Justices of the United States Supreme Court 

and lower court judges over the meaning and application 

of the Establishment Clause. A fee shifting statute that 

governs in such a confused area of law allows plaintiffs to 

use the threat of attorneys’ fees to compel government officials to a desired result, whether or not that result is the 

right one. 

WHAT H.R. 2679 DOES

H.R. 2679, the ‘‘Veterans’’ Memorials, Boy Scouts, Public 

Seals, and Other Public Expressions of Religion Protection 

Act of 2006,’’ will remedy current law that requires local, 

State and Federal government to accede to demands for 

the removal of religious text and imagery when such removal is not compelled by the Constitution. 

Section 1 of H.R. 2679 provides the short title of the bill. 

Section 2 of H.R. 2679 amends 42 U.S.C. § 1988 such 

that attorneys’ fees could not be awarded to prevailing parties in Establishment Clause cases. Section 2 also amends 

42 U.S.C. § 1983 to make clear that while Establishment 

Clause cases can continue to be brought against State and 

local governments, cases can be brought only for injunctive 

or declaratory relief./12/ That means the only relief a court 

can order in those cases is for a State official or local government to stop doing whatever it is doing that is an alleged violation of the Establishment Clause or simply declare what the law is. (That is, under Section 2 of H.R. 

2679, a court could not order monetary damages or attorneys’ fees in Establishment Clause cases.) Establishment 

Clause cases covered by Section 2 include cases challenging a veterans’ memorial’s containing religious words 

or imagery; a public building’s containing religious words 

or imagery; the presence of religious words or imagery in 

the official seals of States and localities; the chartering of 

Boy Scout units by components of States and localities; 

and the Boy Scouts’ using public buildings. 

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13These awards include the following: 

• The ACLU received $950,000 in a settlement with the City of San Diego in a case involving 

the San Diego Boy Scouts. See Seth Hettena, ‘‘City of San Diego Settles Boy Scout Suit,’’ AP 

Online (January 8, 2004). 

• The ACLU received $150,000 from Barrow County, Georgia, after a Federal judge ordered 

the county to remove a framed copy of the Ten Commandments from a hallway in the County 

Courthouse. See Cameron McWhirter, ‘‘10 Commandments: Barrow Removes Religious Display; 

County Complies with U.S. Judge,’’ The Atlanta Journal-Constitution (July 20, 2005) at 1B. • The ACLU received $121,500 from Kentucky in a case to remove a Ten Commandments 

monument outside the Capitol. See Jack Brammer, ‘‘State Legislature Foots the Bill for ACLU 

Victory; Group Fought Lawmaker’s Plan for Monument,’’ Lexington Herald Leader (July 8, 2003) 

at B1. • The ACLU received $38,000 in legal fees in a case against Hamilton County, Tennessee, 

to remove the Ten Commandments from a court building. See Chris Joyner and Kimberly 

Greuter, ‘‘Judge Awards Attorneys’’ Fees in Postings Case,’’ Chattanooga Times Free Press (June 

19, 2002) at B1. • The ACLU and two other groups received nearly $550,000 in an Alabama case to remove 

the Ten Commandments from a courthouse. See Kyle Wingfield, ‘‘Legal Battle over Ten Com- mandments Monument Will Cost Alabama Taxpayers More Than $500,000,’’ Associated Press 

(April 14, 2004). • The ACLU received nearly $75,000 from Habersham County, Georgia, in a case involving 

two Ten Commandments displays, one at the county courthouse and one in the county swimming pool building. See http://www.acluga.org/docket.html. 14 Hannity & Colmes (Fox News) (transcript) (December 30, 2005). 

Section 3 of H.R. 2679 applies the same principles embodied in Section 2 to Establishment Clause cases brought 

against the Federal government. Section 3 creates a new 

section in the U.S. Code that provides that a court shall 

not award attorneys’ fees or expenses to the prevailing 

party in Establishment Clause cases brought against the 

United States or any agency or any official of the United 

States acting in his or her official capacity, and that the 

remedies available with respect to such a claim shall be 

limited to injunctive and declaratory relief. The Establishment Clause cases covered by this section include cases 

challenging a veterans’ memorial’s containing religious 

words or imagery; a Federal building’s containing religious 

words or imagery; the presence of religious words or imagery in the official seal of the United States and in its 

currency and official Pledge; the chartering of Boy Scout 

units by components of the Armed Forces of the United 

States and by other public entities; and the Boy Scouts’ using Department of Defense and other public installations. 

The amended title of the bill provides that the secular purpose 

of the bill is to prevent the use of the legal process to unfairly extract money from local, State and Federal governments, or otherwise inhibit constitutional actions by such governments as they 

pertain to public expressions of religion. 

WHY SECTION 2 OF H.R. 2679 IS NECESSARY

Section 2 of H.R. 2679 (which applies to lawsuits against State 

officials and local governments) is necessary because, under existing law, groups such as the ACLU have won millions of dollars in 

attorneys’ fees while forcing localities to tear down unobtrusive religious references on public property.13 Rees Lloyd, a former ACLU 

civil rights attorney who is now with the American Legion, supports H.R. 2679, saying, ‘‘We’re talking about millions of dollars annually. I don’t think it should be forgotten that, in driving the Boy 

Scouts out of Balboa Park in San Diego, that the ACLU ended up 

with $940,000 in attorney fees, taxpayer funds.’’ 14

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15See Troy Anderson, ‘‘Vote on Cross Upheld Before Angry Crowd,’’ The Los Angeles Daily 

News (June 9, 2004) at N1 (‘‘Despite passionate pleas from an overflow crowd of 2,000, Los Angeles County’s Board of Supervisors refused Tuesday to back down on its decision to remove 

a tiny Christian cross on the official seal because of a legal threat from the ACLU.’’). As columnist John Leo observed, ‘‘Last year the ACLU demanded that Los Angeles County eliminate 

from its seal a microscopic cross representing the missions that settled the state of California. 

Under threat of expensive litigation, the county complied. The cross was about one-sixth the size 

of a not-very-big image of a cow tucked away on the lower right segment of the seal, and maybe 

a hundredth of the size of a pagan god (Pomona, goddess of fruit) who dominated the seal. Pomona survived the religious purge. She is not the sort of god that the ACLU worries about, 

whereas the flyspeck-sized cross was a threat to unravel separation of church and state, as we 

know it. What will happen if the ACLU learns that Los Angeles, Santa Monica, Sacramento, 

San Francisco, St. Louis and Corpus Christi actually have religious names? We shudder to 

think.’’ John Leo, ‘‘How Many ACLU Lawyers Can Dance on the Head of a Pin?’’ The Mobile 

Register (October 25, 2005) at A8. 16 Hannity & Colmes (Fox News) (transcript) (December 30, 2005). 17Onell R. Soto, ‘‘City Has 90 Days to Remove Mt. Soledad Cross,’’ The San Diego Union-Tribune (May 4, 2006) at A1; Matthew T. Hall, ‘‘Radio Takes up Effort to Save Cross,’’ The San 

Diego Union-Tribune (March 19, 2005) at B1. 

A huge number of these legal ‘‘victories’’ have been trumpeted in 

ACLU press releases, in which the ACLU often openly acknowledges it was the threat of lawsuits against localities that could 

least afford them that resulted in the ACLU’s getting its way. The 

following are examples of ACLU press releases: 

• ‘‘County Officials in Iowa Agree to Remove Ten Commandments from Courthouse Grounds’’ (March 15, 2001) (‘‘Ben 

Stone, Executive Director of the Iowa Civil Liberties Union 

[said] ‘[w]e . . . wanted to spare the community a divisive and 

costly lawsuit.’ ’’) (emphasis added); 

• ‘‘ACLU of Montana Settles Lawsuit Over Ten Commandments, Nativity Scene Placed on County Property’’ (October 12, 

2000) (‘‘The ACLU said the lawsuit was a ’last attempt’ to 

nudge Custer County into addressing the possible unconstitutionality of the displays.’’) (emphasis added); 

• ‘‘ACLU Action Prompts [Val Verde, California] School 

Board to Abandon Posting of Ten Commandments’’ (November 

24, 1999) (‘‘The school board’s decision came in the wake of the 

filing of a lawsuit last week by the ACLU ...’’) (emphasis 

added); 

• ‘‘ACLU of Illinois Lauds Officials’ Decision to Remove Religious Postings in Harrisburg Schools’’ (December 7, 1999) (The 

‘‘Director of Communications for the ACLU [said] ‘This action 

means the people of Harrisburg can focus all their energies, resources, and attention on the needs of their students, rather 

than worrying about a lengthy, expensive and disruptive court 

battle.’ ’’) (emphasis added); 

• ‘‘Commandments Come Down in West Virginia School’’

(August 27, 1999) (‘‘School board attorney Brian Abraham recommended at a Thursday night meeting that the signs be 

taken down to avoid possible lawsuits.’’) (emphasis added). 

The County of Los Angeles was recently extorted into removing 

a tiny cross from its official county seal (symbolizing the founding 

of the city by missionaries),15 which is costing the county around 

$1 million as it would entail changing the seal on some 90,000 uniforms, 6,000 buildings, and 12,000 county vehicles.16

This summer, in a legal dispute that has continued for 17 years, 

a Federal judge ordered the city of San Diego to remove a cross 

from Mount Soledad that was raised as a veterans’ memorial 50 

years ago on a site where a cross had stood as far back as 1913.17

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18Tony Perry, ‘‘Officials Turn to U.S. to Save Cross,’’ Los Angeles Times (May 12, 2006) at 

B4. 19Troy Anderson, ‘‘Will the Law Wipe L.A. Off the Map? Courts: ACLU Challenge to Cross 

on County Seal Leads Some to Wonder if Holy City Names Are Next,’’ The Long Beach PressTelegram (June 13, 2004) at A1. 20Marjie Lundstrom, ‘‘At a Crossroads for Diversity,’’ Sacramento Bee (June 3, 2004) at A3. 21Marjie Lundstrom, ‘‘At a Crossroads for Diversity,’’ Sacramento Bee (June 3, 2004) at A3. 22See ‘‘Pentagon Agrees to End Direct Sponsorship of Boy Scout Troops in Response to Religious Discrimination Charge’’ (November 15, 2004) (ACLU press release) (‘‘In response to a religious discrimination lawsuits brought by the American Civil Liberties Union of Illinois, the Defense Department today agreed to end direct sponsorship of hundreds of Boy Scouts units, which 

require members to swear religious oaths, on military facilities across the United States and 

overseas.’’). In another case, Buono v. Norton, 371 F.3d 543 (9th Cir. 2004), the Ninth Circuit 

held that a small, approximately six-foot tall cross affixed to the top of a rock that serves as 

a veterans’ memorial was unconstitutional because it was located on federally-owned land in the 

Mojave National Preserve in California, roughly 11 miles from the main highway, and the plaintiff, who lived in Oregon, found it offensive. The ACLU was awarded $63,000 in the case. See 

David Asman, ‘‘Battle to Tear Down a Tribute,’’ Fox News (June 2, 2005). 

According to the plaintiff’s attorney, he is owed more than $500,000 

in legal fees from the city.18

The official name of the City of Los Angeles (known as ‘‘The City 

of Angels’’) is ‘‘The Town of Our Lady the Queen of Angels of the 

Little Portion,’’ which refers to Mary, Mother of Jesus. Many other 

California cities contain religious references, including San 

Clemente, Santa Monica, Sacramento (named for the ‘‘Holy Sacrament’’), San Francisco and San Luis Obispo (named for Saint 

Louis the Bishop). Under precedents groups like the ACLU are setting under 42 U.S.C. § 1983, the very names of these cities are in 

legal jeopardy. According to one prominent legal commentator: ‘ ‘‘I 

think the ACLU may very well bring similar cases in future years 

all over the country,’ said Erwin Chemerinsky, a professor of constitutional law at the University of Southern California. Since 

1999, the ACLU, other groups and individuals have been successful 

in getting crosses on government seals removed in Los Angeles 

County, Redlands and La Mesa; Zion, Illinois; Stow, Ohio; 

Bernalillo, New Mexico; Rolling Meadows, Illinois; and Edmond, 

Oklahoma.’’ 19

In Redlands, California, the city council reluctantly capitulated 

to ACLU’s demands and agreed to change their official seal. But 

Redlands didn’t have the municipal funds to revise police and firefighter badges that contained the old seal so, as reported by the 

Sacramento Bee, ‘‘rather than face the likelihood of costly litigation,’’ Redlands residents now ‘‘see blue tape covering the cross on 

city trucks, while some firefighters have taken drills to ‘obliterate 

it’ from their badges.’’ 20 The old seals are ‘‘everywhere,’’ according 

to a Redlands county spokeswoman, who ‘‘couldn’t even hazard a 

guess what it would cost to replace the logos.’’ 21

Section 2 of H.R. 2679 will protect cities and towns from these 

unfair and coercive practices. 

WHY SECTION 3 OF H.R. 2679 IS NECESSARY

Section 3 of H.R. 2679 is necessary because even the Federal government, with vast superior litigation resources, has been forced to 

bow to similar pressure and stop the Pentagon from sponsoring the 

Boy Scouts.22 Further, section 3 is necessary because, without it, 

extortionist lawsuits will threaten to remove religious references 

from our most prominent Federal buildings and on Federal property, and from some of our Nation’s most important cultural tradicprice-sewell on PROD1PC71 with HEARING

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23See Marsh v. Chambers, 463 U.S. 783, 788 (1983). 24See Senate Rule IV.1, Standing Rules of the Senate, S. Doc. No. 107–1, at 4 (2002); House 

Rule XIV.1, Constitution, Jefferson’s Manual, and Rules of the House of Representatives, H.R. 

Doc. No. 106–320, at 620 (2001). 25S. Doc. No. 82–20, at 27 (1951); 4 U.S.C.A. § 4. 26 John Y. Cole, On These Walls 35 (1995) (Psalms 19:1). 27See County of Allegheny v. ACLU, 492 U.S. 573, 652–53 (1989) (Stevens, J., concurring in 

part and dissenting in part). 28 4 U.S.C. § 4 (historical notes) (Congressional finding (10)). 29See Zorach v. Clauson, 343 U.S. 306, 313 (1952). 30Lynch v. Donnelly, 465 U.S. 668, 677 (1984). 31Zorach v. Clauson, 343 U.S. 306, 313 (1952). 32See Lieutenant Colonel H. Wayne Elliott, The Third Priority: The Battlefield Dead, 1996 

Army Law. 3, 20. 

tions. What sorts of religious references are these? Consider the following. 

The First Congress not only acknowledged a proper role for religion in public life, but it did so at the very time it drafted the Establishment Clause. Just three days before Congress sent the text 

of the First Amendment to the States for ratification, it authorized 

the appointment of legislative chaplains.23 Both Houses of Congress open their daily sessions with prayer and, in recent years, 

recitation of the Pledge of Allegiance.24 Manifestations of the religious faith of our forebears appear throughout the Nation’s Capital. 

The Senate Chamber is inscribed with the words ‘‘In God We 

Trust’’ and the Latin phrase ‘‘Annuit Coeptis’’ or ‘‘God has favored 

our undertakings.’’ 25 The Main Reading Room of the Library of 

Congress prominently displays the Biblical quotation: ‘‘The heavens 

declare the Glory of God, and the firmament showeth His handiwork.’’ 26 Friezes on the North and South walls of the Supreme 

Court chamber depict a procession of historical lawgivers including 

Moses.27

In the Rotunda of the Capitol Building, there are paintings with 

religious themes, such as the Apotheosis of Washington, depicting 

the ascent of George Washington into Heaven, and the Baptism of 

Pocahontas, portraying Pocahontas’ baptism by an Anglican minister. A wall in the Cox Corridor of the Capitol is inscribed with 

this line from Katharyn Lee Bates’ Hymn, America the Beautiful, 

‘‘America! God shed his grace on Thee, and crown thy good with 

brotherhood from sea to shining sea.’’ In the prayer room of the 

House chamber, the following prayer is inscribed: ‘‘preserve me, O 

God—for in thee do I put my trust.’’

On July 20, 1956, Congress proclaimed that the national motto 

of the United States is ‘‘In God We Trust,’’ and that motto is inscribed above the main door of the Senate, behind the Chair of the 

Speaker of the House of Representatives, and on the currency of 

the United States.28

The Supreme Court opens each session with ‘‘God save the 

United States and this Honorable Court.’’ 29 The very chamber in 

which oral arguments are heard before the Supreme Court ‘‘is decorated with a notable and permanent—not seasonal—symbol of religion: Moses with Ten Commandments.’’ 30 Our courtrooms generally include the oath, ‘‘so help me God.’’ 31

The Tomb of the Unknown Soldier is engraved with the words: 

‘‘Here rests in honored glory an American soldier known but to 

God.’’ 32 Arlington National Cemetery maintains thousands of religious inscriptions on state-owned property. 

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33See Lynch v. Donnelly, 465 U.S. 668, 676 (1952). 34St. Patrick, Encarta Encyclopedia (2003). 35See ‘‘Santa Claus,’’ Encarta Encyclopedia (2003). 36 36 U.S.C. § 301(a). 37See Lemon v. Kurtzman, 403 U.S. 602 (1971). 38What is known as the ‘‘American Rule’’ is the rule that each side in a lawsuit shoulders 

the burden of paying their own legal costs whether they win or lose the case. As the Supreme 

Court has stated, ‘‘Under this ‘American Rule,’ we follow a general practice of not awarding fees 

to a prevailing party absent explicit statutory authority.’’ Buckhannon v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 602 (2001). While 42 U.S.C. § 1988 allows 

prevailing parties to be awarded attorneys’ fees in litigation under 42 U.S.C. § 1983, H.R. 2679 

simply removes Establishment Clause cases from coverage under 42 U.S.C. § 1988 and restores 

the application of the American Rule—a rule that governs the vast majority of lawsuits already—in Establishment Clause cases. 

Our National holidays (‘‘holy days’’) include Christmas (‘‘Christ 

Mass’’), Thanksgiving, and the National Day of Prayer.33 Our children celebrate St. Valentine’s Day and St. Patrick’s Day in school. 

(St. Valentine was a Christian martyr, and St. Patrick was a 

Catholic.) 34 Even ‘‘Santa Claus’’ is derived from St. Nicholas 

(‘‘Santa’’ means ‘‘saint’’ and ‘‘Claus’’ is short for ‘‘Nicolaus’’), the 

archbishop of Myra known for distributing his inherited wealth to 

the needy by anonymously throwing bags of gold coins through 

windows.35

And some of our most patriotic songs, such as ‘‘God Bless America,’’ affirm a belief in God. The fourth stanza of the statutorily prescribed National Anthem includes the following: ‘‘Blest with victory 

and peace, may the heaven-rescued land, Praise the Power that 

hath made and preserved us a nation. Then conquer we must, 

when our cause is just, And this be our motto: ‘in God is our 

trust.’ ’’ 36

H.R. 2679 IS CONSTITUTIONAL

H.R. 2679 is constitutional. The Supreme Court has used the following three factors to determine whether a statute violates the 

Establishment Clause. It has asked: (1) does the statute have a religious purpose?; (2) does the statute have the primary effect of either promoting or inhibiting religion?; (3) does the statute create 

an ‘‘excessive entanglement’’ between churches and the government? 37

The clear answer to all three questions regarding H.R. 2679 is 

no. 

First, H.R. 2679 has a secular legislative purpose, namely the 

purpose of preventing the use of the legal system in a manner that 

extorts money from State and local governments, and the Federal 

government, and inhibits their constitutional actions. In doing so, 

it restores the original purpose of 42 U.S.C. §§ 1983 and 1988, 

which was to protect individual rights (not Establishment Clause 

claims). 

Second, H.R. 2679 does not have the primary effect of either promoting or inhibiting religion. Rather, it simply removes the coercive effects of the current legal rules. It does so by: (1) allowing Establishment Clause cases to go forward and allowing violations to 

be ordered stopped; and (2) restoring the ‘‘American rule’’ to Establishment Clause cases such that each side will pay its own legal 

fees.38 (Establishment Clause cases can be brought both by those 

who claim the government is unconstitutionally promoting religion, 

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39The Supreme Court has stated that ‘‘the State may not establish a religion of secularism 

in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who 

believe in no religion over those who do believe.’’ School District of Abington Township v. Schempp, 374 U.S. 203, 225 (1963) (quotations and citations omitted). 40 In recent years, the Supreme Court has conflated the last two prongs of the Lemon test. 

See Agostini v. Felton, 521 U.S. 203, 232 (1997) (‘‘Regardless of how we have characterized the 

issue, however, the factors we use to assess whether an entanglement is ’excessive’ are similar 

to the factors we use to examine ’effect.’ That is, to assess entanglement, we have looked to the 

character and purposes of the institutions that are benefited, the nature of the aid that the 

State provides, and the resulting relationship between the government and religious authority. 

Similarly, we have assessed a law’s ’effect’ by examining the character of the institutions benefited (e.g., whether the religious institutions were ’predominantly religious’), and the nature of 

the aid that the State provided (e.g., whether it was neutral and nonideological). Indeed, in 

Lemon itself, the entanglement that the Court found ’independently’ to necessitate the program’s invalidation also was found to have the effect of inhibiting religion. Thus, it is simplest to recognize why entanglement is significant and treat it ... as an aspect of the inquiry into a statute’s effect.’’) (citations and quotations omitted). 

H.R. 2679 is of course constitutional under these conflated factors as well because (1) the institutions it would benefit are the State, local, and Federal governments (and not, for example, 

inherently religious organizations); (2) the nature of the aid H.R. 2679 provides is simply the 

removal of a legal rule that has an extortionist effect on those State, local, and Federal governments; and (3) the resulting relationship between the government and religious authorities is 

unchanged by H.R. 2679. 41 42 U.S.C. § 1983 (emphasis added). 42 Individual rights are there to protect individuals, whereas the Establishment Clause is a 

structural prohibition against the government’s establishing a national religion. While structural 

limits on government power often expand the sphere in which individuals can act, the purpose 

of structural limits is to confine each governmental branch into its proper sphere, rather than 

to define the sphere of liberties within which individuals are free to act. 43 505 U.S. 577, 591–92 (1992). 44 421 U.S. 240 (1975). 

and by those who claim the government is unconstitutionally hostile to religion,39 and H.R. 2679 affects each group equally.) 

Third, H.R. 2679 does not create an excessive government entanglement with religion because it removes the existing extortionist 

abuse of the legal rules that pressures local governments to give 

up their right to constitutionally protected activity. In doing so, 

H.R. 2679 disentangles Federal authority from religion by removing the major financial incentive that encourages groups like the 

ACLU to bring these cases in the first place.40

Further, 42 U.S.C. § 1983 currently provides that: ‘‘Every person 

who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or 

other person within the jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the Constitution and 

laws, shall be liable to the party injured in an action at law, suit 

in equity, or other proper proceeding for redress . . .’’ 41 Section 

1983 was designed as a mechanism for protecting only individual 

rights. Because the Establishment Clause does not secure an individual right, Establishment Clause lawsuits should not be covered 

under §1983 in the first place.42 As Justice Kennedy made a similar distinction in Lee v. Weisman, ‘‘the Establishment Clause is a 

specific prohibition on the forms of state intervention in religious 

affairs with no precise counterpart in the [free] speech provision [in 

the Constitution].’’ 43

Further, 42 U.S.C. § 1988, which allows attorneys’ fees in cases 

brought under 42 U.S.C. § 1983, was intended only to allow the 

award of attorneys’ fees under civil rights laws enacted by Congress after 1866. The history of 42 U.S.C. § 1988 is as follows. In 

Alyeska Pipeline Service Co. v. Wilderness Society,44 the Supreme 

Court held that Federal courts do not have inherent power to 

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45 421 U.S. at 270. 46 Id. at 269. 47S. Rep. No. 94–1011, at 2 (1976) (emphasis added). 48Testimony of Professor Patrick M. Garry before the Subcommittee on the Constitution in 

support of H.R. 2679, June 22, 2006, at 6. 49 Id. at 6–7. 50 533 U.S. 98 (2001). 51 508 U.S. 384 (1993). 52 515 U.S. 819 (1995). 53Testimony of Professor Patrick M. Garry before the Subcommittee on the Constitution in 

support of H.R. 2679, June 22, 2006, at 7. 54 Id. 

tions of the law. The Court observed that the ‘‘American Rule’’—

that is, the rule that each party bears its own attorneys’’ fees—is 

‘‘deeply rooted in our history and in congressional policy.’’ 45 Accordingly, the Court held that fee-shifting relief can only validly be 

awarded by courts when statutorily authorized by Congress, in specific exceptions to the general rule.46 In response to the Alyeska 

Pipeline decision, Congress enacted 42 U.S.C. § 1988 to allow the 

award of attorneys’ fees in limited cases. Those cases were explained in the Senate Committee report on the legislation, as follows: 

The purpose and effect of S. 2278 are simple—it is designed to allow courts to provide the familiar remedy of 

reasonable counsel fees to prevailing parties in suits to enforce the civil rights acts which Congress has passed since 

1866.47

Clearly, the Establishment Clause is not a civil rights act that 

Congress passed after 1866, and Establishment Clause cases 

should not be covered at all under the attorneys’ fees provisions of 

42 U.S.C. §1988. 

Finally, as Professor Patrick Garry emphasized in his written 

testimony before the Constitution Subcommittee, ‘‘the Public Expression of Religion Act is necessary to avoid a chilling of First 

Amendment rights.’’ 48 As his testimony states, ‘‘[t]he Supreme 

Court has specifically overturned governmental attempts to avoid 

Establishment Clause litigation when those attempts result in the 

chilling or infringement of free speech or religious exercise freedoms.’’ 49 Professor Garry outlined cases, including Good News Club 

v. Milford Central School,50 Lamb’s Chapel v. Center Moriches 

Union Free School District,51 and Rosenberger v. Rector & Visitors 

of the University of Virginia,52 which ‘‘stand for the proposition 

that fears [on the part of the government] of incurring Establishment Clause lawsuits cannot justify viewpoint discrimination 

against religious speech or organizations.’’ 53 As Professor Garry 

states, ‘‘the kind of infringement on First Amendment freedoms 

that occurred in Lamb’s Chapel, Good News, and Rosenberger, all 

because of a fear of facing Establishment Clause lawsuits, is just 

the kind of infringement that can arise because of the chilling effect caused by a fear of being saddled with a Section 1988 award 

for attorney’s fees.’’ 54

ARGUMENTS REGARDING ‘‘THE SEPARATION OF CHURCH AND STATE’’

While opponents of this legislation may rely on arguments that 

H.R. 2679 somehow violates ‘‘the separation of church and state,’’

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55See Philip Hamburger, Separation of Church and State (Harvard University Press 2002) at 

111–12, 151, 161–62 (‘‘During the election of 1800, Republicans had reason to try to separate 

Federalist clergymen from politics. Beginning in the 1790s, and now with renewed effort, Federalist ministers inveighed against Jefferson, often from their pulpits, excoriating his infidelity 

and deism . . . In defense of Jefferson, Republicans argued that clergymen ought not preach 

about politics, and eventually, beginning in 1800, some made such arguments in terms of separation—in particular, a separation of religion and politics. Seizing upon the idea of separation— a concept that until 1800 had been unusual and anything but popular—these Republicans elevated it to a political principle. Although establishment ministers had caricatured dissenters as 

seeking a separation of religion from civil government, and although dissenters had declined to 

seek separation, Republicans now endorsed it as a means of discouraging Federalist clergy, especially in Congregational New England, from preaching against Jefferson . . . [I]n 1815, Jefferson wrote a letter arguing that . . . the clergy should not have ‘the right of discussing public 

affairs in the pulpit’. . . Jefferson’s letter elevated anticlerical rhetoric to constitutional law . . . 

Jefferson adopted the demand of his partisans, arguing that the First Amendment built ‘a wall 

of separation between church and state,’ writing that ‘. . . I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘‘make 

no law respecting an establishment of religion, or prohibiting the free exercise thereof,’’ thus 

building a wall of separation between Church & State.’ . . . Jefferson interpreted the U.S. Constitution to require a version of what his supporters had sought in the heat of the campaign 

. . . If Jefferson had high hopes that his letter would promptly sow useful truths and principles, 

he must have been disappointed, for his epistle was not widely published or even noticed.’’). 56See Philip Hamburger, Separation of Church and State (Harvard University Press 2002) at 

285, 287, 335 (‘‘Contrary to what may be expected, the nineteenth-century advocates who desired the separation of church and state as a constitutional right did not rely upon constitutional 

interpretation to secure this goal. Instead, recognizing separation’s inadequate constitutional 

foundations, they sought constitutional amendments. Only in the twentieth century, after the 

amendment process had been abandoned, did an interpretive approach prevail, and, by this 

means, separation became part of American constitutional law . . . In the 1870s and 1880s antiChristian secularists organized a national campaign to obtain a constitutional amendment guaranteeing a separation of church and state . . . After the failure of the Liberal and Protestant 

proposals for a constitutional amendment, advocates of separation focused on constitutional interpretation. They quickly forgot about arguments that an amendment was necessary and 

claimed instead that American constitutions had already, since their inception, fully guaranteed 

a separation of church and state.’’). 57See Philip Hamburger, Separation of Church and State (Harvard University Press 2002) 

407–09, (‘‘No nativist or Protestant organization more prominently supported the ideal of separation than the Revised [Ku Klux] Klan. Founded in 1915, this second Ku Klux Klan enjoyed 

particular success between 1921 and 1926, when it had about five million members and innumerable sympathizers. It exerted profound political power in states across the country and, 

probably more than any other national group in the first half of the century, drew Americans 

to the principle of separation . . . Separation became a crucial tenet of the Klan. When recruiting members, the Klan sometimes distributed cards listing ‘the separation of church and state’

as one of the organization’s principles . . . Both in the South and the North, members even recited in their ‘Klansman’s Creed’: ‘I believe in the eternal Separation of Church and State.’ Commenting on such vows, an ‘authoritative’ writer—identified only as ‘931KNOIOK’—explained: 

‘The Klan is pledged to maintain inviolate and perpetuate forever the principle of complete separation of Church and State, and the Roman Catholics fight this, because no sincere and devout 

Roman Catholic does or is permitted to believe in the separation of Church and State. The 

Roman Catholic Church is first, last and forever opposed to the separation of Church and State 

Continued 

it is important to keep in mind that no such phrase appears in the 

Constitution. 

In his book entitled ‘‘Separation of Church and State,’’ Philip 

Hamburger, the John P. Wilson Professor of Law at the University 

of Chicago, provides an exhaustively researched account of the history of the oft-repeated notion of ‘‘the separation of church and 

state.’’ Essentially, the phrase originated when Thomas Jefferson (who, 

as the Ambassador to France, was in Paris when the Continental 

Congress framed the First Amendment) used it in a letter intended 

to silence clergyman who were members of the Federalist political 

party who were using their sermons in the Northeast to criticize 

Jefferson, a member of the Republican party.55 The phrase went 

largely unnoticed until, in the eighteenth and nineteenth centuries, 

there were attempts to amend the Constitution to explicitly require 

a separation of church and state.56 Following those failed attempts, 

the Ku Klux Klan officially adopted the phrase as a means of articulating its disapproval of Roman Catholics in government.57 One 

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and in favor of the absolute control and domination of the State by the Roman Catholic 

Church.’’’). 58See Philip Hamburger, Separation of Church and State (Harvard University Press 2002) at 

423, 426–28, 462 (‘‘Hugo Black was more than simply a Baptist and a progressive. He was also 

a Klansman . . . The Klan provided Black with his path to the Senate. In September 1923 

Black joined the powerful Richard E. Lee Klan No. 1 and promptly became Kladd of his 

Klavern—the officer who initiated new members by administering the oath about ‘white supremacy’ and ‘separation of church and state.’ . . . After Black decided to run [for U.S. Senate], 

Grand Dragon Jim Esdale told him, ‘Give me a letter of resignation and I’ll keep it in my safe 

against the day when you’ll need to say you’re not a Klan member.’ Recognizing the wisdom 

of this suggestion, Black gave Esdale a brief letter of resignation, signing it, ‘Yours, I.T.S.U.B. 

[In The Sacred, Unfailing Bond], Hugo L. Black.’ . . . Black appealed directly to Klan and other 

anti-Catholic voters. According to Esdale, ‘I arranged for Hugo to go to Klaverns all over the 

state, making talks on Catholicism. What kinds of talks? Well, just the history of the church 

and what we know about it. Not to talk on politics. Hugo could make the best anti-Catholic 

speech you ever heard.’ . . . Then Imperial Wizard Hiram Evans awarded Black the very rare 

honor of a golden ‘grand passport.’ Upon receiving this, Black spoke of his gratitude for the 

Klan’s support: ‘I know that without the support of the members of this organization I would 

not have been called, even by my enemies, the ‘‘Junior Senator from Alabama.’’ (Applause.) I 

realize that I was elected by men who believe in the principles that I have sought to advocate 

and which are the principles of this organization.’ . . . Black had long . . . sworn, under the 

light of flaming crosses, to preserve ‘the sacred constitutional rights’ of ‘free public schools’ and 

‘separation of church and state.’ Subsequently, he had administered this oath to thousands of 

others in similar ceremonies.’’). 59See Philip Hamburger, Separation of Church and State (Harvard University Press 2002) at 

429, 454–55, 461 (‘‘Hugo Black’s association with the Klan became public little more than a decade later, in 1937, when President Franklin Delano Roosevelt appointed Black as Associate Justice of the Supreme Court . . . The Supreme Court finally interpreted the First and Fourteenth 

Amendments to require separation of church and state in 1947, in the New Jersey case of 

Everson v. Board of Education of the Township of Ewing . .a. Only in 1947 [,] did the Court 

clearly make separation the basis for a decision—opining that the First Amendment required 

separation, that the Fourteenth Amendment applied it to the states, and that New Jersey’s subsidized school busing for both public schools and private schools did not violate the First and 

Fourteenth Amendments. In this way, the Court recognized separation as part of American constitutional law . . . Justice Black, writing for the majority, declared that separation was the 

constitutional standard: ‘In the words of Jefferson, the clause against establishment of religion 

by law was intended to erect a wall of separation between church and State.’’’). 

of those Klan members was Hugo Black,58 who later became a Supreme Court Justice and authored the Supreme Court’s 1947 decision in Everson v. Board of Education, which first enshrined the 

concept of ‘‘the separation of church and state’’ in constitutional 

law.59

HEARINGS 

The Committee’s Subcommittee on the Constitution held a hearing on H.R. 2679 on June 22, 2006. Testimony was received from 

Rees Lloyd, Commander, District 21, The American Legion; 

Mathew D. Staver, Founder and Chairman, Liberty Counsel & Interim Dean, Liberty University School of Law; Marc Stern, General 

Counsel, American Jewish Congress; and Professor Patrick Garry, 

Associate Professor of Law, University of South Dakota School of 

Law, with additional material submitted by individuals and organizations. 

COMMITTEE CONSIDERATION

On July 26, 2006, and September 7, 2006, the Committee met in 

open session and considered H.R. 2679. On September 7, 2006, the 

Committee met in open session and ordered favorably reported the 

bill H.R. 2679 with an amendment by voice vote, a quorum being 

present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that the following 

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rollcall votes occurred during the committee’s consideration of H.R. 

2679. 

1. An amendment was offered by Mr. Nadler to except from the 

bill cases ‘‘involving religious coercion.’’ The amendment was defeated by a rollcall vote of 10 ayes to 17 nays. 

Rollcall No. 1 

Ayes Nays Present 

MR. HYDE.

MR. COBLE .............................................................................................................. X 

MR. SMITH ............................................................................................................... X 

MR. GALLEGLY.

MR. GOODLATTE.

MR. CHABOT ............................................................................................................ X 

MR. LUNGREN ......................................................................................................... X 

MR. JENKINS ............................................................................................................ X 

MR. CANNON ........................................................................................................... X 

MR. BACHUS ........................................................................................................... X 

MR. INGLIS .............................................................................................................. X 

MR. HOSTETTLER ..................................................................................................... X 

MR. GREEN.

MR. KELLER ............................................................................................................. X 

MR. ISSA.

MR. FLAKE.

MR. PENCE .............................................................................................................. X 

MR. FORBES ............................................................................................................ X 

MR. KING ................................................................................................................. X 

MR. FEENEY ............................................................................................................ X 

MR. FRANKS ............................................................................................................ X 

MR. GOHMERT ......................................................................................................... X 

MR. CONYERS ......................................................................................................... X 

MR. BERMAN.

MR. BOUCHER.

MR. NADLER ............................................................................................................ X 

MR. SCOTT .............................................................................................................. X 

MR. WATT ................................................................................................................ X 

MS. LOFGREN .......................................................................................................... X 

MS. JACKSON LEE ................................................................................................... X 

MS. WATERS.

MR. MEEHAN.

MR. DELAHUNT.

MR. WEXLER.

MR. WEINER ............................................................................................................ X 

MR. SCHIFF ............................................................................................................. X 

MS. SANCHEZ .......................................................................................................... X 

MR. VAN HOLLEN.

MRS. WASSERMAN SCHULTZ ................................................................................... X 

MR. SENSENBRENNER, CHAIRMAN ......................................................................... X 

TOTAL ............................................................................................................. 10 17 

2. An amendment was offered by Mr. Scott to except from the bill 

cases ‘‘involving sectarian prayer conducted by a governmental official in a public school.’’ The amendment was defeated by a rollcall 

vote of 12 ayes to 19 nays. 

Rollcall No. 2 

Ayes Nays Present 

MR. HYDE.

MR. COBLE .............................................................................................................. X 

MR. SMITH ............................................................................................................... X 

MR. GALLEGLY ......................................................................................................... X 

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Rollcall No. 2—Continued 

Ayes Nays Present 

MR. GOODLATTE.

MR. CHABOT ............................................................................................................ X 

MR. LUNGREN ......................................................................................................... X 

MR. JENKINS ............................................................................................................ X 

MR. CANNON ........................................................................................................... X 

MR. BACHUS ........................................................................................................... X 

MR. INGLIS .............................................................................................................. X 

MR. HOSTETTLER ..................................................................................................... X 

MR. GREEN .............................................................................................................. X 

MR. KELLER ............................................................................................................. X 

MR. ISSA ................................................................................................................. X 

MR. FLAKE.

MR. PENCE.

MR. FORBES ............................................................................................................ X 

MR. KING ................................................................................................................. X 

MR. FEENEY ............................................................................................................ X 

MR. FRANKS ............................................................................................................ X 

MR. GOHMERT ......................................................................................................... X 

MR. CONYERS ......................................................................................................... X 

MR. BERMAN ........................................................................................................... X 

MR. BOUCHER.

MR. NADLER ............................................................................................................ X 

MR. SCOTT .............................................................................................................. X 

MR. WATT ................................................................................................................ X 

MS. LOFGREN .......................................................................................................... X 

MS. JACKSON LEE ................................................................................................... X 

MS. WATERS.

MR. MEEHAN.

MR. DELAHUNT.

MR. WEXLER.

MR. WEINER ............................................................................................................ X 

MR. SCHIFF ............................................................................................................. X 

MS. SANCHEZ .......................................................................................................... X 

MR. VAN HOLLEN .................................................................................................... X 

MRS. WASSERMAN SCHULTZ ................................................................................... X 

MR. SENSENBRENNER, CHAIRMAN ......................................................................... X 

TOTAL ............................................................................................................. 12 19 

3. An amendment was offered by Ms. Jackson-Lee that would 

allow attorney’s fees to be available to prevailing parties in Establishment Clause cases to the same extent that attorney’s fees are 

available to prevailing parties in cases involving the unconstitutional taking of private property. The amendment was defeated by 

a rollcall vote of 11 ayes to 19 nays. 

Rollcall No. 3 

Ayes Nays Present 

MR. HYDE.

MR. COBLE .............................................................................................................. X 

MR. SMITH ............................................................................................................... X 

MR. GALLEGLY ......................................................................................................... X 

MR. GOODLATTE.

MR. CHABOT ............................................................................................................ X 

MR. LUNGREN ......................................................................................................... X 

MR. JENKINS ............................................................................................................ X 

MR. CANNON ........................................................................................................... X 

MR. BACHUS ........................................................................................................... X 

MR. INGLIS.

MR. HOSTETTLER ..................................................................................................... X 

MR. GREEN .............................................................................................................. X 

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Rollcall No. 3—Continued 

Ayes Nays Present 

MR. KELLER ............................................................................................................. X 

MR. ISSA ................................................................................................................. X 

MR. FLAKE ............................................................................................................... X 

MR. PENCE.

MR. FORBES ............................................................................................................ X 

MR. KING ................................................................................................................. X 

MR. FEENEY ............................................................................................................ X 

MR. FRANKS ............................................................................................................ X 

MR. GOHMERT ......................................................................................................... X 

MR. CONYERS ......................................................................................................... X 

MR. BERMAN ........................................................................................................... X 

MR. BOUCHER.

MR. NADLER ............................................................................................................ X 

MR. SCOTT .............................................................................................................. X 

MR. WATT ................................................................................................................ X 

MS. LOFGREN .......................................................................................................... X 

MS. JACKSON LEE ................................................................................................... X 

MS. WATERS.

MR. MEEHAN.

MR. DELAHUNT.

MR. WEXLER.

MR. WEINER ............................................................................................................ X 

MR. SCHIFF ............................................................................................................. X 

MS. SANCHEZ.

MR. VAN HOLLEN .................................................................................................... X 

MRS. WASSERMAN SCHULTZ ................................................................................... X 

MR. SENSENBRENNER, CHAIRMAN ......................................................................... X 

TOTAL ............................................................................................................. 11 19 

4. An amendment was offered by Mr. Nadler that would except 

from the bill cases ‘‘involving a declaration of an official religion.’’

The amendment was defeated by a rollcall vote of 12 ayes to 20 

nays. 

Rollcall No. 4 

Ayes Nays Present 

MR. HYDE.

MR. COBLE .............................................................................................................. X 

MR. SMITH ............................................................................................................... X 

MR. GALLEGLY ......................................................................................................... X 

MR. GOODLATTE.

MR. CHABOT ............................................................................................................ X 

MR. LUNGREN ......................................................................................................... X 

MR. JENKINS ............................................................................................................ X 

MR. CANNON ........................................................................................................... X 

MR. BACHUS ........................................................................................................... X 

MR. INGLIS .............................................................................................................. X 

MR. HOSTETTLER ..................................................................................................... X 

MR. GREEN .............................................................................................................. X 

MR. KELLER ............................................................................................................. X 

MR. ISSA ................................................................................................................. X 

MR. FLAKE ............................................................................................................... X 

MR. PENCE.

MR. FORBES ............................................................................................................ X 

MR. KING ................................................................................................................. X 

MR. FEENEY ............................................................................................................ X 

MR. FRANKS ............................................................................................................ X 

MR. GOHMERT ......................................................................................................... X 

MR. CONYERS ......................................................................................................... X 

MR. BERMAN ........................................................................................................... X 

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Rollcall No. 4—Continued 

Ayes Nays Present 

MR. BOUCHER.

MR. NADLER ............................................................................................................ X 

MR. SCOTT .............................................................................................................. X 

MR. WATT ................................................................................................................ X 

MS. LOFGREN .......................................................................................................... X 

MS. JACKSON LEE ................................................................................................... X 

MS. WATERS.

MR. MEEHAN ........................................................................................................... X 

MR. DELAHUNT.

MR. WEXLER.

MR. WEINER ............................................................................................................ X 

MR. SCHIFF ............................................................................................................. X 

MS. SANCHEZ.

MR. VAN HOLLEN .................................................................................................... X 

MRS. WASSERMAN SCHULTZ ................................................................................... X 

MR.SENSENBRENNER, CHAIRMAN ........................................................................... X 

TOTAL ............................................................................................................. 12 20 

5. An amendment was offered by Mr. Scott that would except 

from the bill cases in which the court find that the defendant 

knowingly disobeyed a lawful order of the court. The amendment 

was defeated by a rollcall vote of 5 ayes to 17 nays. 

Rollcall No. 5 

Ayes Nays Present 

MR. HYDE.

MR. COBLE .............................................................................................................. X 

MR. SMITH ............................................................................................................... X 

MR. GALLEGLY.

MR. GOODLATTE.

MR. CHABOT ............................................................................................................ X 

MR. LUNGREN ......................................................................................................... X 

MR. JENKINS ............................................................................................................ X 

MR. CANNON ........................................................................................................... X 

MR. BACHUS ........................................................................................................... X 

MR. INGLIS .............................................................................................................. X 

MR. HOSTETTLER ..................................................................................................... X 

MR. GREEN.

MR. KELLER ............................................................................................................. X 

MR. ISSA ................................................................................................................. X 

MR. FLAKE.

MR. PENCE .............................................................................................................. X 

MR. FORBES ............................................................................................................ X 

MR. KING ................................................................................................................. X 

MR. FEENEY ............................................................................................................ X 

MR. FRANKS ............................................................................................................ X 

MR. GOHMERT ......................................................................................................... ....................

MR. CONYERS ......................................................................................................... X 

MR. BERMAN.

MR. BOUCHER.

MR. NADLER.

MR. SCOTT .............................................................................................................. X 

MR. WATT ................................................................................................................ X 

MS. LOFGREN.

MS. JACKSON LEE.

MS. WATERS.

MR. MEEHAN.

MR. DELAHUNT.

MR. WEXLER.

MR. WEINER ............................................................................................................ X 

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Rollcall No. 5—Continued 

Ayes Nays Present 

MR. SCHIFF ............................................................................................................. X 

MS. SANCHEZ.

MR. VAN HOLLEN.

MRS. WASSERMAN SCHULTZ.

MR.SENSENBRENNER, CHAIRMAN ........................................................................... X 

TOTAL ............................................................................................................. 5 17 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 2679, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

SEPTEMBER 11, 2006. 

Hon. F. JAMES SENSENBRENNER, 

Chairman, Committee on the Judiciary, 

U.S. House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2679, the Veterans’ Memorials, Boy Scouts, Public Seals, and Other Public Expressions of 

Religion Protection Act of 2006. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Daniel Hoople. 

Sincerely, 

DONALD B. MARRON, 

Acting Director. 

Enclosure 

H.R. 2679—Veterans’ Memorials, Boy Scouts, Public Seals, and 

Other Public Expressions of Religion Protection Act of 2006 

H.R. 2679 would prevent federal courts from awarding monetary 

relief to parties claiming violations of the Constitutional prohibition on the establishment of religion by federal, state, or local governments. In addition, parties who have prevailed on claims of 

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ment for such violations, CBO expects that enacting H.R. 2679 

would have no significant effect on the federal budget. 

H.R. 2679 contains no intergovernmental mandates as defined in 

the Unfunded Mandates Reform Act (UMRA) and would impose no 

costs on state, local, or tribal governments. H.R. 2679 would impose 

new private-sector mandates, as defined in UMRA, on certain individuals and certain attorneys. Based on information from government and other sources, CBO expects that the direct cost of those 

mandates would fall below the annual threshold established by 

UMRA for private-sector mandates ($128 million in 2006, adjusted 

annually for inflation). 

H.R. 2679 would impose a new private-sector mandate on certain 

individuals by prohibiting them from receiving monetary damages 

and costs in certain lawsuits involving a violation of a prohibition 

in the Constitution against the establishment of religion. Because 

the bill would eliminate existing rights to seek compensation for injury caused by certain acts, it would impose a private-sector mandate. The direct cost of the mandate would be the forgone net value 

of awards and settlements in such claims. The bill also would prohibit awards for attorneys’ fees from lawsuits involving a violation 

of a prohibition in the Constitution against the establishment of religion. Under current law, the courts may award the prevailing 

party a reasonable attorney’s fee. The direct cost of the mandate 

would be the net loss of revenue that certain attorneys would experience as a result of the prohibition on fee awards. 

The CBO staff contact for this estimate is Daniel Hoople. This 

estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 2679, the ‘‘Veterans’ Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2006,’’ will prevent the legal 

extortion that currently requires local, State and the Federal government, to accede to demands for the removal of religious text, imagery, and references when such removal is not compelled by the 

Constitution. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, section 8, clause 3 of the Constitution; article I, 

section 8, clause 9 of the Constitution; article III, section 1, clause 

1 of the Constitution; and article III, section 2, clause 2 of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes the bill as reported by the 

Committee. 

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Sec. 1. Short title 

This section sets forth the title of the bill as the, ‘‘Veterans’ Memorials, Boy Scouts, Public Seals, and Other Public Expressions of 

Religion Protection Act of 2006’’. 

Sec. 2. Limitations on certain lawsuits against State and local officials 

Section 2 amends 42 U.S.C. § 1988 such that attorneys’ fees could 

not be awarded to prevailing parties in Establishment Clause 

cases. This section also amends 42 U.S.C. § 1983 to make clear 

that, while Establishment Clause cases can continue to be brought 

against State and local governments, they can be brought only for 

injunctive or declaratory relief, which means the only relief a court 

could order in those cases is that a State official or local government stop doing whatever it was doing that was an alleged violation of the Establishment Clause or simply declare what the law 

is. (That is, under Section 2 of the bill, a court could not order monetary damages or attorneys’ fees in Establishment Clause cases.) 

The Establishment Clause cases covered by Section 2 include cases 

challenging a veterans’ memorial’s containing religious words or 

imagery; a public building’s containing religious words or imagery; 

the presence of religious words or imagery in the official seals of 

States and localities; the chartering of Boy Scout units by components of States and localities; and the Boy Scouts’ using public 

buildings. 

Sec. 3. Limitations on certain lawsuits against the United States 

and federal officials 

Section 3 of H.R. 2679 applies the same principles embodied in 

Section 2 to Establishment Clause cases brought against the federal government. Section 3 creates a new section in the U.S. Code 

that provides that a court shall not award attorneys fees or expenses to the prevailing party in Establishment Clause cases 

brought against the United States or any agency or any official of 

the United States acting in his or her official capacity, and that the 

remedies available with respect to such a claim shall be limited to 

injunctive or declaratory relief. The Establishment Clause cases 

covered by this section include cases challenging a veterans’ memorial’s containing religious words or imagery; a Federal building’s 

containing religious words or imagery; the presence of religious 

words or imagery in the official seal of the United States and in 

its currency and official Pledge; the chartering of Boy Scout units 

by components of the Armed Forces of the United States and by 

other public entities; and the Boy Scouts’ using Department of Defense and other public installations. 

Sec. 4. Effective date 

Section 4 of the bill provides that the Act and any amendments 

made by the Act take effect on the date of enactment of the Act 

and apply to any case that is pending on such date of enactment 

or is commenced on or after such date of enactment. 

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CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

REVISED STATUTES OF THE UNITED STATES 

T I T L E X I I I 

THE JUDICIARY. 

* * * * * * * 

C H A P T E R T W E L V E. 

PROVISIONS COMMON TO MORE THAN ONE COURT OR JUDGE. 

* * * * * * * 

SEC. 722. (a) * * * 

(b) In any action or proceeding to enforce a provision of sections 

1977, 1977A, 1978, 1979, 1980, and 1981 of the Revised Statutes, 

title IX of Public Law 92–318, the Religious Freedom Restoration 

Act of 1993, the Religious Land Use and Institutionalized Persons 

Act of 2000, title VI of the Civil Rights Act of 1964, or section 

40302 of the Violence Against Women Act of 1994, the court, in its 

discretion, may allow the prevailing party, other than the United 

States, a reasonable attorney’s fee as part of the costs, except that 

in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not 

be held liable for any costs, including attorney’s fees, unless such 

action was clearly in excess of such officer’s jurisdiction. However, 

no fees shall be awarded under this subsection with respect to a 

claim described in subsection (b) of section nineteen hundred and 

seventy nine. 

* * * * * * * 

T I T L E X X I V 

* * * * * * * 

CIVIL RIGHTS. 

* * * * * * * 

SEC. 1979. (a) Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the 

District of Columbia, subjects, or causes to be subjected, any citizen 

of the United States or other person within the jurisdiction thereof 

to the deprivation of any rights, privileges, or immunities secured 

by the Constitution and laws, shall be liable to the party injured 

in an action at law, suit in equity, or other proper proceeding for 

redress, except that in any action brought against a judicial officer 

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junctive relief shall not be granted unless a declaratory decree was 

violated or declaratory relief was unavailable. For the purposes of 

this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District 

of Columbia. 

(b) The remedies with respect to a claim under this section are 

limited to injunctive and declaratory relief where the deprivation 

consists of a violation of a prohibition in the Constitution against 

the establishment of religion, including, but not limited to, a violation resulting from—

(1) a veterans’ memorial’s containing religious words or imagery; 

(2) a public building’s containing religious words or imagery; 

(3) the presence of religious words or imagery in the official 

seals of the several States and the political subdivisions thereof; 

or 

(4) the chartering of Boy Scout units by components of States 

and political subdivisions, and the Boy Scouts’ using public 

buildings of States and political subdivisions. 

* * * * * * * 

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, JULY 26, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in Room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding. 

[Intervening business.] 

Chairman SENSENBRENNER. Pursuant to notice, I now call up the 

bill H.R. 2679, the Public Expression of Religion Act of 2005, for 

purposes of markup and move its favorable recommendation to the 

House. 

[The bill, H.R. 2679, follows:] 

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Chairman SENSENBRENNER. Without objection, the bill will be 

considered as read and open for amendment at any point. And the 

Chair recognizes the author of this legislation, the gentleman from 

Indiana, Mr. Hostettler, for 5 minutes to explain the bill. 

Mr. HOSTETTLER. Thank you, Mr. Chairman. Mr. Chairman, H.R. 

2679, the Public Expression of Religion Act, would amend 42 USC 

Sections 1983 and 1988 to prevent the use of the legal system in 

a manner that extorts behavior from State and local governments 

and inhibits their constitutional actions. 

Title 42 USC § 1983 is the Federal statute that allows people to 

sue State and local governments for alleged constitutional violations of their individual rights. Title 42 USC § 1988 is the Federal 

fee shifting statute that allows prevailing plaintiffs in lawsuits 

filed under 1983 to be awarded attorney’s fees from the defendant. 

Consequently, under 42 USC 1983, parties can sue State and 

local governments claiming their individual rights were violated 

and demand attorney’s fees in the case under 42 USC—— Mr. NADLER. Mr. Chairman, I can’t hear him. Maybe the microphone isn’t working or something. 

Mr. HOSTETTLER. I will move closer. 

Chairman SENSENBRENNER. The gentleman from Indiana will 

enunciate clearly. 

Mr. HOSTETTLER. Consequently, under 42 USC 1983, parties can 

sue State and local governments, claiming their individual rights 

were violated, and demand attorney’s fees in the case under 42 

USC 1988, if they prevail at any stage of judicial review. 

Because of these laws, the threat of litigation against State and 

local officials alleging that they have violated the establishment 

clause often forces States and localities to cave to demands to remove even the smallest religious references on public property. 

Most localities do not have the money to pay not only their fees 

but also the plaintiff’s attorney’s fees, if they receive an adverse 

judgment. PERA addresses this problem by amending 42 USC 1983 

to permit only injunctive relief in cases alleging violations of the 

establishment clause. 

PERA also amends 42 USC 1988 to disallow the award of attorney’s fees to prevailing parties in cases alleging violations of the establishment clause. 

I first introduced the Public Expression of Religion Act in the 

105th Congress, after I realized that the imposition of attorney’s 

fees in establishment clause cases were jeopardizing our constituents’ constitutional rights, causing them, in many cases, to choose 

between defending their rights or giving up in the face of exorbitant attorney’s fees. 

What makes this even more difficult for States and localities is 

that the jurisprudence in establishment clause cases is about as 

clear as mud. Different districts and even the Supreme Court itself 

flip-flops on issues. 

For instance, last year, the Supreme Court handed down two Ten 

Commandments decisions on the same day, with a different decision in each. In the Van Orden case, the court applied the Marsh 

test of historical perspective to determine that the Ten Commandments in a public venue was constitutional, while the McCreary 

case used the Lemon test to determine that the Ten Commandments in a public venue was unconstitutional. 

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It is about as clear as mud. Our constituents who are being 

threatened with these lawsuits know that even if they are right, 

they will still have to pay their own attorney’s fees to take the 

gamble that the court will muddle through the jurisprudential 

mess of the establishment clause and come out on their side. 

If the court chooses to use the Marsh test, they might win. If the 

court chooses to use the Lemon test, they might lose. It is a tossup. 

Unfortunately, many of our constituents do not have the means 

by which to set aside a small fortune each year to defend their constitutional rights against liberal organizations nor do they look 

kindly on the fact that their constitutional rights have become subject to the whims of unelected judges, but that issue is for another 

day. 

Regardless, many do not wish to roll the dice to have their day 

in court, so they capitulate to these organizations and their often 

questionable pronouncement of what is or is not constitutional. 

A majority of the cases the ACLU and its affiliates represent are 

facilitated by staff attorneys or through pro bono work. So any attorney’s fees awarded to them is icing on the cake. 

It is a win-win situation for them right now. On the other hand, 

cities and States have to consider where the attorney’s fees would 

come from if they lose their case and have to pay the ACLU. Where 

would that money come from? From the taxpayers. 

States and localities have limited resources with which to fight 

court battles, thus another reason that they are capitulating before 

they even go to court. This was the case recently with the Los Angeles County seal. The ACLU threatened to sue Los Angeles County if they did not remove the small cross from the county seal. The 

cross symbolized L.A.’s birth as a Spanish mission town. 

The county was forced to choose between paying to change the 

seal or paying to go to court and possibly pay exorbitant attorney’s 

fees to the ACLU. 

In the end, the L.A. County commissions, in a 3-2 vote, decided 

to ignore the will of the people of Los Angeles and pay to change 

the seal instead of paying to go to court. They had been advised 

by their attorneys that if they lost in court, they would not only 

have to change the seal, but they would additionally have to pay 

attorney’s fees. 

Mr. Chairman, I believe it is time to bring this extortion to an 

end. The Public Expression of Religion Act would make sure that 

these cases are tried on their merits and are not merely used to 

extort money either via settlements or attorney’s fees. 

I would urge my colleagues to support the bill and the amendment in the nature of a substitute that I will soon offer. 

I yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler, is recognized for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. I move to strike the last 

word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Mr. Chairman, this bill would, for the first since 

the enactment in 1871 of Section 1983, which bars the deprivation 

of any rights, privileges or immunities secured by the Constitution 

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and laws, under color of law, that is to say, by a State official, this 

bill would, for the first time, single out a particular group of individuals whose constitutional rights have been violated by the government and deny them remedies available to everyone else under 

Section 1983. 

In effect, it disfavors the establishment of religion clause, because it says that people who have proven the violation of their 

constitutional rights under the establishment clause shall be denied remedies available to anyone else who proves violation of any 

other constitutional right. 

In more than a century, nothing like this has ever been done. I 

have checked with CRS, and I ask unanimous consent to place 

their memo to that effect in the record. 

Chairman SENSENBRENNER. Without objection. 

[The memo follows:] 

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Mr. NADLER. This bill is aimed at people who have proved in 

court that the government has violated their constitutional rights. 

By denying them the normal relief of monetary damages and the 

normal ability to petition for attorney’s fees, we would not just 

deny them their day in court, but we would be telling government 

officials everywhere that Congress thinks it is okay to violate people’s religious liberty with impunity. 

It is especially galling that everyone here, well, almost everyone 

has taken a victory lap for reauthorizing the Voting Rights Act, in 

which we enhance the attorney’s fees provisions by adding a right 

to be awarded the cost of extra witnesses. 

As this Committee stated in its report on the Voting Rights Act, 

‘‘The Committee received substantial testimony indicating that 

much of the burden associated with either proving or defending a 

Section 2 vote dilution claim is established by information that only 

an expert can prepare. In harmonizing the Voting Rights Act of 

1965 with other Federal civil rights laws, the Committee also seeks 

to ensure that those minority voters who have been victimized by 

continued acts of discrimination are made whole.’’

But not people who have been victimized by deprivation of their 

constitutional rights under the establishment clause. I would warn 

my colleagues that starting down this path will only lead to depriving other unpopular groups of their civil rights remedies. 

It wasn’t so long ago that attacks on unelected judges and ACLU 

lawyers stirring up trouble was the common language of the militant segregationists. It is distressing and sadly ironic that today 

that language is being used to gut the nation’s oldest and most durable civil rights law. 

It is all chillingly reminiscent of Governor George Wallace’s infamous 1963 inaugural speech, in which he said, ‘‘From this day, 

from this hour, from this minute, we give the word of a race of 

honor that we will tolerate their boot in our faces no longer and 

let those certain judges put that in their opium pipes of power and 

smoke it, for what it is worth.’’

I think the governor would feel right at home with the sponsors 

of this bill today or the notorious seven manifesto signed by Members of both houses, in defiance of the Supreme Court’s school desegregation decisions. ‘‘We regard the decisions of the Supreme 

Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaken to legislate, in 

derogation of the authority of Congress and to encroach upon the 

reserved rights of the States and the people.’’

Does any of this sound familiar? I raise this not to suggest that 

any Members of this House today are segregationists, far from it. 

I only recall the overheated rhetoric of a half-century ago to urge 

Members to take care with what they support. 

Unpopular minorities, and those are the people of these cases 

and decisions, and decisions defending the rights of unpopular minorities against the will of the majority have always inflamed passion. People have always questioned our system of checks and balances and especially the role of the independent judiciary. 

Recourse through an independent judiciary is bulwark of our liberties. We recognizes this by allowing people to go to court and 

force the government to respect their rights. We recognize this by 

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allowing them to receive damages where the government has done 

damage. 

We recognize this by ensuring, just as we have done with the 

Voting Rights Act, that people who can prove their rights have 

been violated can get attorney’s fees paid, so that people with valid 

claims will be able to go to court. 

I would remind my friends that this legislation is not limited to 

religious symbols in public places. This legislation applies to any 

violation of the establishment clause. This would include forced 

prayer. If government forcing your child to say a prayer of another 

faith is not the establishment of religion, the phrase has no meaning. 

The substitute lists certain cases the authors are particularly 

concerned about, but it is not limited to those cases. So it still 

means everything is covered. 

I want to lay to rest right now the red herring about veterans’ gravestones. I know that many sincere people have been misled 

into believing the ACLU wants to use Section 1983—— Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. NADLER. I ask unanimous consent for 11⁄2 additional minutes. 

Chairman SENSENBRENNER. Without objection. 

Mr. NADLER. Thank you. I know that many sincere people have 

been misled into believing that the ACLU wants to use Section 

1983 to force the removal of the religious symbols from the individual gravestones of thousands of veterans across the nation and 

around the world. 

We received testimony from the American Legion to this effect 

and Members have received a great deal of mail on the subject. 

This assertion is a myth. If you are thinking of voting for this bill 

because you are concerned about national cemeteries, don’t bother. 

Neither the ACLU nor anyone else has ever brought such a lawsuit. As a matter of fact, I have a letter here from the ACLU taking 

the opposite position, that individual veterans have a first amendment right to have a religious symbol on their gravestones. 

I should also remind my friends that the one kind of relief this 

bill leaves standing is injunctive relief, precisely the kind of relief 

that you are afraid of. That is the one that gives the court the 

power to say, ‘‘Take down the Ten Commandments monument.’’ So 

if that is really what you are worried about, this bill would do absolutely nothing to stop that. 

It is an election year. The months leading up to elections have 

long been known as a silly season. We all understand that. But getting an earmark for a bridge to nowhere or something is one thing. 

Gutting the ability to have the court enforce the first amendment 

and saying that people who are injured, who prove that their first 

amendment rights under the establishment clause have been violated, should be entitled to less remedies and different remedies 

than those who prove their other constitutional rights have been 

violated is saying, in effect, that the establishment clause is less 

important than other rights and that is a road that we should not 

take. 

Leave the first amendment and our civil rights laws out of it. 

Chairman SENSENBRENNER. The time of the gentleman has once 

again expired. 

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The Chair recognizes the gentleman from Indiana, Mr. 

Hostettler, to offer an amendment in the nature of a substitute. 

The clerk will report the amendment. 

The CLERK. ‘‘Amendment in the nature of a substitute to H.R. 

2679, offered by Mr. Hostettler of Indiana. Strike all after the enacting clause and insert the following. Section 1’’——

[The amendment offered by Mr. Hostettler follows:] 

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1

H.L.C.

AMENDMENT IN THE NATURE OF A SUBSTITUTE

TO H.R. 2679

OFFERED BY MR. HOSTETTLER OF INDIANA

Strike all after the enacting clause and insert the

following:

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Veterans’ Memorials,

3 Boy Scouts, Public Seals, and Other Public Expressions

4 of Religion Protection Act of 2006’’.

5 SEC. 2. LIMITATIONS ON CERTAIN LAWSUITS AGAINST

6 STATE AND LOCAL OFFICIALS.

7 (a) CIVIL ACTION FOR DEPRIVATION OF RIGHTS.—

8 Section 1979 of the Revised Statutes of the United States

9 (42 U.S.C. 1983) is amended—

10 (1) by inserting ‘‘(a)’’ before the first sentence;

11 and

12 (2) by adding at the end the following:

13 ‘‘(b) The remedies with respect to a claim under this

14 section are limited to injunctive and declaratory relief

15 where the deprivation consists of a violation of a prohibi16 tion in the Constitution against the establishment of reli17 gion, including, but not limited to, a violation resulting

18 from—

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2

H.L.C.

1 ‘‘(1) a veterans’ memorial’s containing religious

2 words or imagery;

3 ‘‘(2) a public building’s containing religious

4 words or imagery;

5 ‘‘(3) the presence of religious words or imagery

6 in the official seals of the several States and the po7 litical subdivisions thereof; or

8 ‘‘(4) the chartering of Boy Scout units by com9 ponents of States and political subdivisions, and the

10 Boy Scouts’ using public buildings of States and po11 litical subdivisions.’’.

12 (b) ATTORNEY’S FEES.—Section 722(b) of the Re13 vised Statutes of the United States (42 U.S.C. 1988(b))

14 is amended by adding at the end the following: ‘‘However,

15 no fees shall be awarded under this subsection with re16 spect to a claim described in subsection (b) of section nine17 teen hundred and seventy nine.’’.

18 SEC. 3. LIMITATIONS ON CERTAIN LAWSUITS AGAINST THE

19 UNITED STATES AND FEDERAL OFFICIALS.

20 (a) IN GENERAL.—Notwithstanding any other provi21 sion of law, a court shall not award reasonable fees and

22 expenses of attorneys to the prevailing party on a claim

23 of injury consisting of the violation of a prohibition in the

24 Constitution against the establishment of religion brought

25 against the United States or any agency or any official

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3

H.L.C.

1 of the United States acting in his or her official capacity

2 in any court having jurisdiction over such claim, and the

3 remedies with respect to such a claim shall be limited to

4 injunctive and declaratory relief.

5 (b) DEFINITION.—As used in this section, the term

6 ‘‘a claim of injury consisting of the violation of a prohibi7 tion in the Constitution against the establishment of reli8 gion’’ includes, but is not limited to, a claim of injury re9 sulting from—

10 (1) a veterans’ memorial’s containing religious

11 words or imagery;

12 (2) a Federal building’s containing religious

13 words or imagery;

14 (3) the presence of religious words or imagery

15 in the official seal of the United States and in its

16 currency and official Pledge; or

17 (4) the chartering of Boy Scout units by com18 ponents of the Armed Forces of the United States

19 and by other public entities, and the Boy Scouts’

20 using Department of Defense and other public in21 stallations.

22 SEC. 4. EFFECTIVE DATE.

23 This Act and the amendments made by this Act take

24 effect on the date of the enactment of this Act and apply

25 to any case that—

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4

H.L.C.

1 (1) is pending on such date of enactment; or

2 (2) is commenced on or after such date of en3 actment.

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5

H.L.C.

Amend the title so as to read: ‘‘A bill to amend the

Revised Statutes of the United States to prevent the use

of the legal system in a manner that extorts money from

State and local governments, and the Federal Government, and inhibits such governments’ constitutional actions under the first, tenth, and fourteenth amendments.’’.

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2679B.AAF
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Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. And the gentleman from Indiana is recognized 

for 5 minutes. 

Mr. HOSTETTLER. I thank the Chairman. Briefly, Mr. Chairman, 

at the suggestion of both majority and minority witnesses during 

the June 22 hearing on the Public Expression Religion Act, this 

amendment in the nature of a substitute would provide both injunctive and declaratory relief and would add declaratory relief, because injunctive relief was already possible under the underlying 

bill, as remedies in establishment clause cases under 42 USC 1983. 

This amendment would also apply the same principles embodied 

in my original bill to establishment clause cases brought against 

the Federal Government. This is a necessary addition to the bill, 

since even the Federal Government has given in to pressure from 

the ACLU and stopped the Pentagon, for example, from sponsoring 

the Boy Scouts. 

Religious words and symbols on Federal buildings are also prime 

targets for extortionist threats from some of these groups. My 

amendment in the nature of a substitute clarifies that this legislation, if signed into law, would apply to pending, as well as future 

cases. 

I hope my colleagues support this amendment in the nature of 

a substitute, and yield back. 

Chairman SENSENBRENNER. Are there any second-degree amendments to the amendment in the nature of a substitute? 

For what purpose does the gentleman from New York, Mr. Nadler, seek recognition? 

Mr. NADLER. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. ‘‘Amendment to the amendment in the nature of a 

substitute to H.R. 2679 offered by Mr. Nadler. Page 1, line 17, insert ‘except in a case involving religious coercion’ after ‘religion.’

Page 3, line 4, insert ‘except in a case involving religious coercion’

after ‘relief.’ ’’

[The amendment offered by Mr. Nadler follows:] 

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Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes in support of his amendment. 

Mr. NADLER. Thank you, Mr. Chairman. This amendment would 

allow, would exempt, in effect, from the provisions of this bill people who were subject to religious coercion to have all the remedies 

available under our civil rights law. 

What kind of religious coercion? For example, a teacher forcing 

a child to say a prayer of another faith. How about Jehovah’s Witness children being expelled from school and charged with truancy 

for refusing to say the Pledge of Allegiance, in violation of their religious faith? 

That happened, until the Supreme Court put a stop to it in the 

1943 case of Barnett v. West Virginia. How bout firing someone 

from a government job because they adhered to their own faith instead of that of the boss? 

We are not talking in this amendment about so-called voluntary 

school prayer or posting religious symbols, the Ten Commandants 

on the courthouse lawn or whatever. Those things don’t force anyone to do anything. 

We are talking here about only direct religious coercion, ‘‘Say the 

prayer or you are expelled from school.’’ ‘‘Profess your boss’s belief 

or you are fired.’’ Now, those are, admittedly, I hope, fairly rare instances, but where they occur, there is no reason that, in those 

egregious cases where someone egregiously, under color of law, 

flouts the establishment clause to coerce somebody, that that victim should not have the right to attorney’s fees and damages, like 

any other victim of a deprivation of civil rights under the color of 

law. 

So I hope that this amendment will be accepted, because we are 

not talking about what Mr. Hostettler is talking about. We are 

talking only about—which I would say is bad enough—but we are 

talking only about direct cases of religious coercion. And I hope nobody in this Committee would justify religious coercion or say that 

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victims of it who prove it, that victims who prove religious coercion 

should get less remedies than people who prove other violations of 

their civil rights. 

I yield back. 

Mr. HOSTETTLER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Indiana. 

Mr. HOSTETTLER. Mr. Chairman, I rise in opposition to the 

amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. HOSTETTLER. Mr. Chairman, the concept of coercion is so 

vague that it has been used to find even voluntary recitations of 

the Pledge of Allegiance—— Mr. NADLER. Mr. Chairman, I can’t hear the gentleman. 

Mr. HOSTETTLER. The concept of coercion is so vague that it has 

been used to find even voluntary recitations of the Pledge of Allegiance to be unconstitutional. For that reason, an identical amendment to the Pledge Protection Act was defeated here just a few 

weeks ago. 

This amendment should be similarly defeated. And I would just 

suggest once again to the gentleman from New York that injunctive 

relief is still a remedy and the main remedy that is sought by most 

plaintiffs in these cases. And given that injunctive relief and declaratory relief are allowed under the amendment in the nature of 

a substitute, that if there is, in fact, coercion, that, in fact, that coercion will be stopped as a result of civil rights laws that are on 

the books and will not be eliminated in any way by this bill. 

Mr. NADLER. Would the gentleman yield? 

Mr. HOSTETTLER. I yield to the gentleman from New York. 

Mr. NADLER. Thank you. Well, coercion, under this amendment, 

would have to—since, under the bill, attorney’s fees and damages 

are not available, except under my amendment for coercion, it 

would be an element of getting attorney’s fees and getting damages. You have to prove that there was, in fact, coercion. Not a 

vague concept, but you have to prove—the court would have to find 

that there was coercion. In that case—— Mr. HOSTETTLER. Reclaiming my time. As the gentleman knows, 

in these cases, the courts have often found that a coercive environment has been created as the result of programs that allow for the 

voluntary recitation of the pledge, for example. 

So while the gentleman may have his idea of what the term ‘‘coercion’’ means, that, in fact, the term is a term that will ultimately 

be decided by a court and that court can still find that this coercion 

is inconsistent with the establishment clause in order to end the 

activity, which is what the plaintiff desires and what all desired in 

these cases. 

So I would just remind the gentleman that while he may have 

a notion of what ‘‘coercion’’ is, that as he and I both don’t sit on 

a Federal bench, that that will ultimately be left up to those judges 

and I would just as soon allow for that judge to stop a coercive activity or order the stopping of a coercive activity as a result of 

being tried in court and not the ACLU trying to coerce a local governmental entity that they know what coercion is and they know 

what a judge is going to call coercion and the case never sees the 

light of day in a Federal court. 

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42 

And I yield back the balance of time. 

Chairman SENSENBRENNER. The question is on——

Mr. LUNGREN. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. Strike the requisite number of words. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. LUNGREN. Could I ask the gentleman from New York, in 

terms of the issue of coercion, there are probably two different approaches to analyzing the term ‘‘coercion.’’ One, the Scalia approach, which is kind of straightforward what ‘‘coercion’’ is and I 

would suggest the more expansive version of coercion exemplified 

by Justice Kennedy’s comments in the case involving the prayer. I 

believe it was by a rabbi that was fairly secular prayer, but he felt 

that it created an atmosphere of coercion as a result of psychological coercion. 

I would be inclined to support the gentleman’s amendment if, in 

some way, we were talking about what most of us would think of 

as the strict Scalia interpretation of coercion as opposed to the 

more expansive Justice Kennedy insight into it. 

So I would just ask the gentleman, what is his notion of coercion, 

as contained in his amendment? And I yield to the gentleman. 

Mr. NADLER. Thank you. My notion of coercion is as I gave the 

examples of the statement, probably a fairly narrower version of coercion. Of course, as Mr. Hostettler points out I am not on the Supreme Court nor are you. 

But the legislative history, and, surprise, the Supreme Court 

looks at legislative history. Even if Scalia doesn’t, most of the others do, would certainly suggest a narrower version. 

Mr. LUNGREN. I appreciate it, and I reclaim my time. If I could 

be convinced the Supreme Court would look at this with that in 

mind, I would be inclined to support the gentleman’s amendment, 

because I think he is going at exactly what we are talking about. 

My fear is that with the latest review by the Supreme Court, at 

least Justice Kennedy, in my judgment, has expanded the notion 

of what coercion is. 

Mr. WATT. Would the gentleman yield? 

Mr. LUNGREN. Yes, I will be happy to. 

Mr. WATT. I am just wondering whether either Scalia’s version 

or Kennedy’s version represents the majority of them. What was 

the decision in the case? That would be the definition. Was it Kennedy’s opinion that prevailed or was it Scalia’s opinion that prevailed? 

Mr. LUNGREN. It was Kennedy’s opinion, Lee v. Weisman, it was 

the one where, as I understand it, there was a general—well, there 

was a prayer given by someone who was a rabbi, but it was a prayer that was really not to anybody but God and it wasn’t the Jewish 

God, the Christian God, the Muslim God, it was to God, and they 

found that coercive in terms of psychological coercion. 

And that is the problem I have. I understand what the gentleman from New York is trying to do. I think he is probably where 

we would like to all be, but I think the gentleman from Indiana 

raises a legitimate point about how expansive this has become and 

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43 

that is the quandary I am in, and I was just trying to get some 

clarification, if there is any way we could nail it down. 

Mr. WATT. Would the gentleman yield again? 

Mr. LUNGREN. Yes. 

Mr. WATT. Would it help to put the word ‘‘direct’’ in front of ‘‘religion?’’ Just a thought. 

Mr. LUNGREN. I understand. I am thinking. Well, I haven’t resolved my own question, I am sorry. I was just trying to see if we 

could in some way. And I yield back the balance of my time. 

Chairman SENSENBRENNER. The question is on the Nadler 

amendment to the Hostettler amendment in the nature of a substitute. 

Those in favor will say ‘‘aye.’’ Opposed, ‘‘no.’’ The noes appear to have it. 

Mr. NADLER. Record vote. 

Chairman SENSENBRENNER. Record vote is requested. Those in 

favor of the Nadler amendment in the second-degree to the 

Hostettler amendment in the nature of a substitute will, as your 

names are called, answer, ‘‘aye’’; those opposed, ‘‘no.’’

And the clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Mr. Jenkins? 

[No response.] 

The CLERK. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Mr. Inglis? 

[No response.] 

The CLERK. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green? 

[No response.] 

The CLERK. Mr. Keller? 

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[No response.] 

The CLERK. Mr. Issa? 

[No response.] 

The CLERK. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. 

Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Feeney? 

Mr. FEENEY. Mr. Feeney, no. 

Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. 

Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. 

Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. 

Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. 

Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. 

Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

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Mr. Schiff? 

Mr. SCHIFF. Pass. 

The CLERK. Mr. Schiff, pass. 

Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Mr. Van Hollen? 

[No response.] 

The CLERK. Mrs. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Mrs. Wasserman Schultz, aye. 

Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

your vote? The gentleman from Florida, Mr. Keller. 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. 

Chairman SENSENBRENNER. The gentleman from South Carolina, 

Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? If not, the clerk will—the gentleman from 

Tennessee, Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? The clerk will report. 

The CLERK. Mr. Chairman, there are 10 ayes and 17 nays. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

Are there further second-degree amendments to the Hostettler 

substitute? The gentleman from Virginia, Mr. Scott, for what purpose do you seek recognition? 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk, 

Scott No. 2. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. ‘‘Amendment to the amendment in the nature of a 

substitute to H.R. 2679, offered by Mr. Scott. Page 1, line 17, insert 

‘except in a case involving sectarian prayer conducted by a governmental official in a public school’ after ‘religion.’ Page 3, line 4, insert ‘except in a case involving sectarian prayer conducted by a 

government official in a public school’ after ‘relief.’ ’’

[The amendment offered by Mr. Scott follows:] 

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Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. First, Mr. Chairman, I would ask unanimous consent 

that the bill number on the amendment be corrected. 

Chairman SENSENBRENNER. Without objection. 

Mr. SCOTT. Thank you. Mr. Chairman, my amendment would 

create an exception for those instances which have been clearly determined to be unconstitutional by the Supreme Court, namely, 

where establishment claims involve sectarian prayer conducted by 

a government official in a public school. 

The U.S. Supreme Court has been vigilant in forbidding public 

schools and other agencies of government to interfere with Americans’ constitutional right to follow their own consciences when it 

comes to religion. 

In 1962, the justices ruled that official prayer had no place in 

public education. This decision is widely misunderstood today. The 

court did not rule that the students are forbidden to pray on their 

own. The justices merely said that government officials had no 

business composing a prayer for students to recite. 

And the Engels v. Vitale case came about because parents in 

New York challenged a prayer written by the New York education 

board. Those Christian, Jewish and Unitarian parents did not want 

their children subjected to State-sponsored devotions. The high 

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court agreed that the scheme amounted to a government promotion 

of religion. 

The following year, 1963, the Supreme Court handed down another important ruling involving public schools, in Abington Township School District, the court declared that school-sponsored Bible 

reading and recitation of the Lord’s Prayer was unconstitutional. 

It is important to remember that these decisions of the Supreme 

Court did not remove prayer from public school. The court removed 

only government-sponsored worship. The public school students always had and have a right to pray on their own. 

And, also, the Supreme Court did not rule against the official 

prayer and Bible reading cases in public schools out of hostility to 

religion. Rather, the justices held that these practices were examples of unconstitutional government sponsorship of religion, violating the establishment clause. 

Nothing in the 1962 or 1963 rulings makes it unlawful for public 

school students to pray or read the Bible or say grace over their 

own food on a voluntary basis. Later decisions have made this even 

clearer. In 1990, the high court ruled specifically that high school 

students may form clubs that meet during non-instructional time 

to pray, read religious text or discuss religious topics, if other student groups are allowed to meet. 

The high court also made it clear time and time again that objective study about religion in public schools is legal and appropriate. 

Many public schools offer courses in comparative religion, Bible as 

literature or the role of religion in the world in U.S. history. As 

long as the approach is objective, balanced and non-devotional, 

these classes have been approved. 

In short, public schools’ approach to religion must have a legitimate educational purpose, not a devotional one. Public schools 

should not be in the business of preaching to students or trying to 

persuade them to adopt certain religious beliefs. Parents, not 

school officials, are responsible for overseeing a young person’s religious upbringing. This is not a controversial principal. In fact, most 

parents would demand these basic rights. 

Mr. Chairman, my amendment is narrowly drafted so it addresses only those instances when sectarian prayers are composed and 

recited by a government official in a public school, thereby falling 

into a category of government-sponsored religion, which has consistently been deemed unconstitutional by our highest court. 

We shouldn’t require the victims of this practice to foot the bill 

for correcting a clear constitutional violation. So I would urge my 

colleagues to support the amendment. 

I yield back. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Indiana seek recognition? 

Mr. HOSTETTLER. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. HOSTETTLER. Mr. Chairman, I rise in opposition to the 

amendment. Let me reiterate the purpose of the underlying legislation and the amendment in the nature of a substitute. 

The amendment in the nature of a substitute, as well as the underlying bill, is not—the purpose is not to eliminate the establishment clause cases from being adjudicated. In fact, it is just the opcprice-sewell on PROD1PC71 with HEARING

48 

posite. It will allow for more adjudication of establishment clause 

cases to go forward and, as a result of that, the establishment 

clause doctrine may be made more clearly than is the case today. 

The gentleman from Virginia eloquently elaborates on all the 

various cases, several of the various cases that make up the jurisprudence in this area that testimony from constitutional scholars 

before the Subcommittee told us was one of the most unclear areas 

of jurisprudence that there is in constitutional law. 

And so the question ultimately is for the individuals involved in 

the cases to take the cases to court. The gentleman’s amendment 

is unnecessary, because as he related earlier on in his discussion 

of the amendment, that, for example, in 1962, prior to the enactment of the attorney’s fee shifting statute put in place in 1976, the 

Court found that the voluntary recitation of a prayer composed by 

school officials was unconstitutional. 

Prior to the attorney’s fee shifting bill passed in 1976, the United 

States Supreme Court found in 1963 that the voluntary reading of 

scripture during a public school formal setting was a violation of 

the establishment clause and was ended as a result of that. 

So the legislation does not end the remedies that are available 

to plaintiffs that wish to stop what the court ultimately deems is 

an unconstitutional act. But this amendment would continue the 

chilling effect, the demise of which is the purpose of the underlying 

legislation. 

It is my desire that these cases actually go to court and that behind closed doors, the ACLU and others do not get the government 

entity, the school board, the county commissioners or whoever, to 

capitulate with the chilling effect of the specter of attorney’s fees 

and damages. These cases should go to court. 

This amendment offered by the gentleman from Virginia would 

continue this process of allowing these cases to be determined behind closed doors and not in the sunshine of the Federal courthouse and that is why I oppose the amendment and ask my colleagues likewise to oppose it. 

Yield back the balance of my time. 

Chairman SENSENBRENNER. The question is on the Scott amendment to the Hostettler amendment in the nature of a substitute. 

Those in favor will say ‘‘aye.’’ Opposed, ‘‘no.’’ The noes appear to have it. The noes have it. 

Rollcall is requested. Those in favor of the Scott amendment in 

the second-degree to the Hostettler amendment in the nature of a 

substitute will, as your names are called, answer, ‘‘aye’’; those opposed, ‘‘no.’’ And the clerk will call the role. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly? 

[No response.] 

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The CLERK. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Mr. Lungren? 

[No response.] 

The CLERK. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Mr. Inglis? 

[No response.] 

The CLERK. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. 

Mr. Issa? 

[No response.] 

The CLERK. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Feeney? 

[No response.] 

The CLERK. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. 

Mr. Gohmert? 

[No response.] 

The CLERK. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. 

Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

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Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. 

Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. 

Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. 

Mrs. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Mrs. Wasserman Schultz, aye. 

Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? The gentleman from California, Mr. Issa. 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. 

Chairman SENSENBRENNER. The gentleman from Florida, Mr. 

Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Gallegly. 

Mr. GALLEGLY. No. 

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The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Gohmert. 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. 

Chairman SENSENBRENNER. The gentleman from South Carolina, 

Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 12 ayes and 19 nays. 

Chairman SENSENBRENNER. The amendment is not agreed to. 

Are there further amendments in the second-degree to the 

amendment in the nature of a substitute offered by the gentleman 

from Indiana, Mr. Hostettler? 

For what purpose does the gentlewoman from Texas, Ms. Jackson Lee, seek recognition? 

Ms. JACKSON LEE. Mr. Chairman, I have an amendment at the 

desk, No. 334, as altered. 

Chairman SENSENBRENNER. The clerk will report the altered 

version of 334. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

The CLERK. ‘‘Amendment to the amendment in the nature of a 

substitute to H.R. 2679, offered by Ms. Jackson Lee of Texas. Page 

2, strike lines 15 through’’——

[The amendment offered by Ms. Jackson Lee follows:] 

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1

H.L.C.

AMENDMENT TO H.R. 2679

OFFERED BY MS. JACKSON-LEE OF TEXAS

Page 2: strike lines 16 through18 and insert ‘‘fees

shall be awarded under this subsection with respect to a

claim described in subsection (b) of section nineteen hundred and seventy nine to the same extent such fees are

available to the prevailing party in an action based on a

claim that private property has been taken without just

compensation in violation of the Fifth Amendment to the

United States Constitution.’’.

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Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. 

The gentleman from North Carolina, does he wish to reserve a 

point of order? 

Okay, the gentlewoman from Texas is recognized for 5 minutes. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. It has 

been interesting to listen to this debate and, again, it is important—several points and I guess the first would be that maybe Mr. 

Hostettler and myself agree at least that the freedom of expression 

and the freedom of speech and the freedom of religion is crucial 

and an imperative responsibility of this Judiciary Committee of 

this Congress and certainly of the Constitution. 

My amendment is simple. It simply provides that attorney’s fees 

may be awarded to a prevailing party in cases brought under the 

establishment clause pursuant to 42 USC 1988 to the same extent 

as such fees may be awarded to a prevailing party in cases as alleged and an unconstitutional taking of private property in violation of the fifth amendment to the United States Constitution. 

I think the distinguished gentleman from Indiana is well aware 

that this Committee, in a bipartisan manner, joined in making sure 

that those provisions stood, one, the protection of constituents 

against unconstitutional taking and that attorney’s fees will be 

granted. 

We know that attorney’s fees are not awarded in establishment 

clause cases or any other civil rights cases as a punitive measure. 

Rather, in any case where the government violates its citizens’ civil 

or constitutional rights, the award of attorney’s fees is reasonable 

compensation for the expenses of litigation awarded at the discretion of the court for having the right to have your grievance presented in a court of law. 

In fact, after intensive fact-finding, Congress determined that the 

amount of attorney’s fees awarded after review by the court are 

adequate to attract competent counsel, but do not produce windfalls to attorneys. 

Mr. Chairman, the very basis of this bill closes the courthouse 

door to deserving litigants whose rights have been denied. H.R. 

2679 is contrary to good public policy because it reduces enforcement of constitutional rights. It has a chilling effect on those who 

have been barred by the government. 

It makes it exceedingly difficult for plaintiffs to avail themselves 

of the services of attorneys experienced and skilled in constitutional litigation and it prevents attorneys from acting in the public 

good. 

My good friend, Mr. Nadler, recounted for us the history of the 

civil rights litigation. Might I just insert personal views of what 

happened? Many, many lawyers who go unnamed were part of the 

army of battlers and counsel during the civil rights era, if you will. 

The more well known was the NAACP legal defense fund and 

Thurgood Marshall. But many, many lawyers toiled in the vineyard 

against all odds, with no resources, representing constituents in 

cases that were either won or lost, those who defend Martin King 

and the FCLC members who were constantly incarcerated. 

If these kinds of prohibitions had been completely in place, certainly, their fees were not of any great consequence. But if we do 

not grow in the understanding that rights of individuals were concprice-sewell on PROD1PC71 with HEARING

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tinuously denied if we did not allow them to be availed of legal 

counsel. 

We do not, in this legislation, present ourselves in a way that allows rights to be protected. When it comes to the award of attorney’s fees in taking cases or any other type of civil rights cases, we 

are denying that access if we deny meager minimal attorney’s fees. 

We should not tolerate when the protections provided by the establishment clause is at stake. 

Mr. Chairman, my amendment necessarily affirms that freedom 

of religion is at least as important as private property. After all, 

what is religion if not a reflection upon the eternal and the divine 

and, as well, one’s personal view. 

Our Constitution, which is the envy of the world, each of us is 

free to ponder and to seek an opportunity to be protected by that 

Constitution and now this particular legislation denies us the protection. 

My amendment presents a difficult choice between material possessions and spiritual comfort, but it is an amendment that raises 

the hypocritical question. Why are you taking away attorney’s fees 

to allow someone to petition for their right to freedom of religion, 

why then is that more important than protecting the rights, material rights of individuals? 

I would hope my colleagues would support this amendment. And 

I yield back my time. 

Chairman SENSENBRENNER. The gentleman from Indiana, Mr. 

Hostettler. 

Mr. HOSTETTLER. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. HOSTETTLER. Mr. Chairman, I rise in opposition to the 

amendment. The amendment effectively guts the bill. Under the 

bill now, property rights owners can, of course, receive attorney’s 

fees when appropriate. This legislation does not eliminate attorney’s fees recoupment by wronged parties. 

The legislation, if I can refocus our attention, we seem to have 

been talking about a lot of things that have very little to do with 

establishment clause cases and I guess that is appropriate, given 

the fact that establishment clause cases have no true meaning with 

regard to what the court will decide from one day or another. 

But this has to do with not eliminating access to our Federal 

court system, but by empowering access to our Federal court system. In our Subcommittee hearing, the witness for the minority essentially claimed that the attorney’s fees awards need to stay in 

place so that these cases do not go into court. 

The gentleman, Mark Stern, in testifying for the minority, said, 

‘‘The end to the litigation came only after he,’’ a particular school 

board member, ‘‘was safely reelected and the school newspapers 

began to speculate on what the attorney’s fees would be if the lawsuit was successful. It is a good thing that the fee statute exists, 

for it serves to provide a tangible disincentive for the manipulation 

of the Constitution for short-term advantage of unprincipled public 

officials. Eliminate that disincentive, and the inevitable, perhaps 

the desired result would be more open defiance of well settled constitutional principle.’’

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Well, you can’t have well-settled constitutional principle if you 

are not allowed to go to the courthouse, and that is what this 

amendment would do. It would gut the bill and would continue to 

allow the chilling effect on establishment clause cases to be felt by 

individuals that have been alleged of violating the establishment 

clause of the Constitution. 

This legislation needs to go through so that, in fact, the courthouse door can be open and that extortion and coercive measures 

used by some to keep these cases out of court will go to court. 

But, in fact, that may be the reason why there is such opposition 

to this legislation and that is because these cases will actually go 

to court. And if they go to court, in fact, the Supreme Court may 

find, especially as a result of the change in the Supreme Court, 

most recently, with the additions of Chief Justice Roberts and Justice Alito, that many of these cases, such as the McCreary County 

case in Kentucky, which was found in 2005 in favor of the ACLU, 

in McCreary County v. ACLU, that these cases may be, in fact, 

found in the opposite situation, that, in fact, McCreary County may 

be able to keep their Ten Commandments in place. 

But we will never know this if this sort of Damocles continues 

to hang over the heads of these public officials that say let’s capitulate, let’s not allow this case to go to court, and let’s give in to what 

these folks want. 

These cases should be allowed to go to court so that the jurisprudence can be matured and that these folks can have their day, according to the Constitution. 

And I yield back the balance of my time, while I ask that Members defeat the amendment. 

Chairman SENSENBRENNER. The gentlewoman from California, 

for what purpose do you seek recognition? 

Ms. LOFGREN. To strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. LOFGREN. I think that the amendment offered by my colleague, Ms. Jackson Lee, is fair. It simply says that fees that will 

be awarded under one of the amendments will be the same as another amendment. And I think to say that the first amendment is 

less valuable than the fifth amendment, surely, we would not want 

to say that as a Committee, and I would yield to the gentlelady. 

Ms. JACKSON LEE. I thank the distinguished gentlelady. She has 

captured the essence and the intent and purpose of the amendment. And then I would also say to my colleague, who has made 

his argument, he is focusing on the government, I guess, the recipient of the lawsuit. He is not focusing on the petitioner. 

In addition, it needs to be clarified that under the fee structure 

that we are speaking of, it is the proponent of the victor that gets 

the attorney’s fees, if you prevail. And so if you prevail, you would 

get attorney’s fees. That means, of course, that there has been a 

determination that you have been treated unjustly. 

And, therefore, are we suggesting that what we will do is we will 

take away attorney’s fees, so that we can block those who have 

been treated without justice from getting justice. 

That I don’t understand, particularly as sacred a right as freedom of religion and the first amendment is, freedom of expression. 

We hold that to be very, very sacred. And if someone is coerced or 

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if someone is denied their view of having a free right to participate 

and practice their religion, they take it to court in a fair-minded 

manner against any entity and they prevail, under our structure, 

they get attorney’s fees. 

I don’t understand why we have made the ACLU the whipping 

boy, if you will, of a system of justice which we have created under 

the constitutional system. 

I ask my colleagues to support this amendment, and I yield back. 

Ms. LOFGREN. I would just say that if this amendment does not 

prevail, that I hope the next amendment will come from the other 

side to remove attorney’s fees in taking cases under the fifth 

amendment. And I would yield back. 

Chairman SENSENBRENNER. The question is on the Jackson Lee 

amendment in the second-degree to the amendment in the nature 

of a substitute by the gentleman from Indiana, Mr. Hostettler. 

Those in favor will say ‘‘aye.’’

Those opposed will say ‘‘no.’’

The noes appear to have it. The noes have it, and the amendment is not agreed to. 

Are there further amendments? 

The Chair did not hear the gentlewoman say ‘‘aye,’’ but we will 

accommodate her request. Those in favor of the Jackson Lee——

Ms. JACKSON LEE. I am in the delirious. Thank you, Mr. Chairman. I would appreciate if I could—— Chairman SENSENBRENNER. I can understand that. 

The question is on the Jackson Lee amendment to the Hostettler 

amendment in the nature of a substitute. Those in favor will, as 

your names are called, answer, ‘‘aye’’; opposed, ‘‘no.’’ And the clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

[No response.] 

The CLERK. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

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Mr. Inglis? 

[No response.] 

The CLERK. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. 

Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. 

Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. 

Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. 

Mr. Gohmert? 

[No response.] 

The CLERK. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. 

Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. 

Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. 

Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

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The CLERK. Ms. Jackson Lee, aye. 

Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Ms. Sa ́nchez? 

[No response.] 

The CLERK. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. 

Mrs. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Mrs. Wasserman Schultz, aye. 

Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? The gentleman from Ohio, Mr. Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Chairman SENSENBRENNER. The gentleman from Utah, Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Gohmert. 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 11 ayes and 19 nays. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. Are there further second-degree amendments? 

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler. 

Mr. NADLER. Thank you. I have an amendment at the desk, the 

last one. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. ‘‘Amendment to the amendment in the nature of a 

substitute to H.R. 2679, offered by Mr. Nadler. Page 1, line 17, insert ‘except in a case involving declaration of an official religion’ after ‘religion.’ Page 3, line 4, insert ‘except in a case involving a 

declaration of an official religion’ after ‘relief.’ ’’

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[The amendment offered by Mr. Nadler follows:] 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Thank you, Mr. Chairman. I won’t take 5 minutes. 

We have had many debates in this Committee about what constitutes an establishment of religion. Let’s get to the heart of the 

matter. I don’t think anyone would argue that it would be proper 

for a State to enact a declaration, to enact legislation declaring an 

official religion. 

If there is one thing we can all agree on, it is that there should 

not be a particular established church that receives all the legal 

benefits of such recognition to the exclusion and detriment of all 

others. 

I hope that cooler heads would prevail, but there is no shortage 

of people in this place who like to argue that this is a Christian 

nation. If this bill passes, you better just hope that some other denomination doesn’t mean you to say that. 

Whatever people may think about monuments or graduation 

prayers, I hope there isn’t a single Member of this Committee who 

would seriously argue that government should be allowed to declare an official faith and that an average citizen should not have 

the right to have the court right that wrong if some State or local 

government should be foolish enough to do so. 

So this amendment simply says that if there were a case of some 

government unit, city, State, involving a declaration of an official 

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2679F.eps
60 

religion and if you prevailed in court that that was established religion, you could still get attorney’s fees and damages, if any. 

I would hope that this amendment would be obvious in its acceptability. I thank you. I yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from Indiana, Mr. 

Hostettler. 

Mr. HOSTETTLER. Mr. Chairman, to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. HOSTETTLER. Mr. Chairman, I rise in opposition to the 

amendment because it is not clear to anyone what is an establishment and especially not the Supreme Court, given their determinations on two cases regarding the posting of the Ten Commandments on public property. 

This is, once again, an attempt to gut the bill. The establishment 

clause is actually—the courts are actually saying that the States, 

in some cases, are going one step farther—— Mr. NADLER. Would the gentleman yield? 

Mr. HOSTETTLER.—that they are, in fact, establishing a religion. 

And given that that jurisprudence is muddied, once again, avoiding 

the legal extortion that arises under that muddied understanding, 

even by the Supreme Court, of the establishment clause, is the 

basis for the bill that we are considering. 

I ask my colleagues——

Mr. NADLER. Would the gentleman yield? 

Mr. HOSTETTLER. I will yield to the gentleman. 

Mr. NADLER. I don’t think you have read the amendment. The 

amendment doesn’t talk about the establishment of religion. It 

talks about a declaration of an official religion. I think if any State 

or city council declared that Hinduism or Methodism or whatever 

is the official religion, that is what we are talking about, and I 

can’t see how you could fail to support this amendment. 

Mr. HOSTETTLER. Reclaiming my time. The fact is that the courts 

have decided that the Ten Commandments on public property is 

not only a declaration of religion, but is an establishment of religion, a much more proactive part on the part of the State to impose 

a religious doctrine, to establish a religion. 

And given the fact that the Court has said that establishment in 

Texas is not constituted by the Ten Commandments on public property, but that establishment is constituted as a result of the Ten 

Commandments on public property in Kentucky is the case, the 

amendment should be defeated, because the Court—because it guts 

the bill and it allows those individuals once more to say that the 

Court will probably find that a declaration of religion has been 

made, when, in fact, the Court may not find that a declaration of 

religion has been made. And that is why it should be defeated. 

Mr. SCOTT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Mr. Chairman, move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Mr. Chairman, the amendment would appear to be 

unnecessary, because you couldn’t think of a jurisdiction actually 

declaring a religion to be the official religion. However, I am aware 

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of at least one State party platform, the Texas Republican platform, that actually declares this to be a Christian nation. 

And, therefore, if the legislators actually followed through on 

that, this amendment would actually be necessary. I would hope 

that we would adopt the amendment in case that happens. 

I yield back. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment—— Mr. VAN HOLLEN. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Maryland, Mr. 

Van Hollen. 

Mr. VAN HOLLEN. Thank you, Mr. Chairman. This is an amazing——

Chairman SENSENBRENNER. For what purpose do you——

Mr. VAN HOLLEN. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. VAN HOLLEN. This is an amazing exercise and it comes 

under the rubric, I understand, of the American values agenda, and 

I can’t think of anything that turns American history on its head 

more than what we are working on on these piece of legislation. 

If you go back to the founding of the country, the fact of the matter is so many people came here to escape religious prosecution in 

England. I mean, I urge all of you to read the laws in the early 

colonies. 

People came here to escape the Church of England and its insistence that people follow the dictates of the Church of England. 

Then many of the earlier settlers who came here to the colonies, 

although they were freed of the Anglican church, they did impose, 

in many of the early colonies, State religions. The first Virginia 

charter in 1606 established the Anglican church. Another law 

passed then specifically disenfranchised Catholics and enforced the 

expulsion within 5 days of a priest coming to the colony. 

In Connecticut, congregationalism, under its famous instrument, 

the Saybrook Platform, became the State religion. The whole purpose of the first amendment was to address the whole issue of establishing religions and to say people are free to choose their own 

religions or, if they want to, to choose not to belong to any particular religion. 

And here, the very language of the bill acknowledges the fact 

that that is what our Constitution says and, yet, we want to take 

away the ability of people who prevail in court. These are people 

who win their cases. 

You may disagree with the substance of court decisions, that is 

a whole other debate. But the fact of the matter is they prevailed 

in bringing a case to defend their constitutional rights. And I would 

just read from the language of the bill itself. It says you are going 

to ‘‘limit the relief where the deprivation consists of a violation of 

a prohibition in the Constitution against the establishment of religion.’’

Now, this amendment may well gut the bill, if your intention is 

to say we can now have States pass laws establishing official religions. I thought that is what the whole first amendment was about, 

to say in this country, based on the history of the first American 

settlers here and their efforts to escape religious prosecution in 

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England and other homelands, that you are free here to choose. 

You can’t have States passing laws establishing religion. 

And, by God, if a State passes a law saying that—infringing on 

that right and you bring a lawsuit and the courts decide you are 

right—and don’t forget, these are individuals bringing cases 

against the State. We keep talking about the power of the Federal 

Government and the power of State governments. They are the 

ones with the resources. 

They are the ones with the resources. They are the ones you are 

saying to be—and you want to take away the right of an individual 

who prevails in defending their religious freedom and religious liberty to not collect any of their fees. 

It is just unbelievable and it is Orwellian that this would fall 

under the umbrella of American values, when it is just directly contrary to the whole history of this country with respect to the issue 

of freedom of religion. It is unbelievable. 

Thank you, Mr. Chairman. 

Chairman SENSENBRENNER. Does the gentleman yield back? The 

gentleman yields. 

The question is on the amendment to the amendment in the nature of a substitute. Those in favor will say, ‘‘aye.’’ Opposed, ‘‘no.’’ The noes appear to have it. 

Rollcall will be ordered. Those in favor of the amendment to the 

amendment in the nature of a substitute will, as your names are 

called, answer, ‘‘aye’’; those opposed, ‘‘no.’’ And the clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Mr. Inglis? 

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Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green? 

[No response.] 

The CLERK. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. 

Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. 

Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. 

Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. 

Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. 

Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. 

Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. 

Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. 

Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

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The CLERK. Ms. Jackson Lee, aye. 

Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

[No response.] 

The CLERK. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Ms. Sa ́nchez? 

[No response.] 

The CLERK. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. 

Mrs. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Mrs. Wasserman Schultz, aye. 

Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? The gentleman from Wisconsin, Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Chairman SENSENBRENNER. The gentleman from Utah, Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Weiner. 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Chairman SENSENBRENNER. The gentleman from Massachusetts, 

Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their votes? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 12 ayes and 20 nays. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

Are there further amendments to the bill? 

Ms. JACKSON LEE. Mr. Chairman? 

Chairman SENSENBRENNER. For what purpose does the gentlewoman from Texas, Ms. Jackson Lee, seek recognition? 

Ms. JACKSON LEE. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Ms. JACKSON LEE. It is 332, with changes. 

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The CLERK. ‘‘Amendment to the amendment in the nature of a 

substitute to H.R. 2679—— Mr. COBLE. Mr. Chairman, point of order. 

The CLERK.—offered by Ms. Jackson Lee of Texas. Page 2, strike 

lines 12 through 17.’’ [The amendment offered by Ms. Jackson Lee follows:] 

Chairman SENSENBRENNER. The gentlewoman from Texas is recognized for 5 minutes. 

Mr. COBLE. I will withdraw, Mr. Chairman. 

Ms. JACKSON LEE. I thank the distinguished Chairman. I could 

capture the words of Mr. Van Hollen, who indicated a certain degree of disbelief. Again, I think it is simple to note, Mr. Chairman, 

that all this amendment attempts to do is to keep the courthouse 

door open by striking the provision that prevents attorney’s fees 

from being rendered to those who are petitioning for their rights. 

A simple question and a simple answer. Do I have the right to 

go into the nation’s courthouses to defend against religious persecution and denial of my religious right? If that is the case, whether 

my religion be of many of different faiths or non-faith, it is my perspective and my right under the freedom of religion clause, the first 

amendment, to be able to petition the courts. 

And so, this amendment strikes that section on attorney’s fees, 

and I would ask my colleagues to support it. 

I yield back. 

Chairman SENSENBRENNER. The Chair is informed that there are 

three votes on the floor. Without objection, the Committee stands 

recessed until 5:45. 

[The prepared statement of Mr. King follows:] 

PREPARED STATEMENT OF THE HONORABLE STEVE KING, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF IOWA

Mr. Chairman, I urge support for H.R. 2679, the ‘‘Public Expression of Religion 

Act of 2005.’’ This bill prevents American taxpayers from having to subsidize judicial activism, encouraged by liberal groups bringing establishment clause cases. 

Today, taxpayers are being forced to pay for the lawyers of the ACLU who demand 

the removal of religious text and imagery from the public square. These organizations attempt to make public policy through the courts, instead of Congress where 

such actions belong. 

How many times will we stand silent as intolerant organizations such as the 

ACLU strong-arm the American people into removing cherished symbols of our nation’s heritage and faith? These actions are not compelled by the Constitution or 

supported by the will of the people. ‘‘To compel a man to subsidize with his taxes 

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the propagation of ideas which he disbelieves and abhors is sinful and tyrannical.’’ Thomas Jefferson said that, and contrary to the ACLU, I believe that what our 

founding fathers believed in and stood for is still relevant today. 

American taxpayers currently have to pay for ACLU ‘‘victories.’’ ACLU press releases, sadly I must say, tout quite a record. For example: 

The County of Los Angeles was recently forced to remove a tiny cross from its 

official seal, symbolizing the founding of the city by missionaries. The removal of 

this cross is costing the county around $1 million, as it would entail changing the 

seal on some 90,000 uniforms, 6,000 buildings, and 12,000 county vehicles. 

In San Diego, the ACLU forced the Boy Scouts out of Balboa Park because of the organizations religious beliefs, and taxpayers were required to pay $950,000 in legal 

fees and court costs to the ACLU. 

In Barrow County, Georgia, the ACLU received $150,000 from taxpayers after a 

federal judge ordered the county to remove a framed copy of the Ten Commandments from a hallway in the County Courthouse. 

In Redlands, California, the city council was forced into changing its official seal, 

but didn’t have the funds to revise every symbol that contained the old seal. Now 

Rolands residents see blue tape covering the tiny cross on city trucks, while some 

firefighters have taken drills to remove the cross from their badge. 

These are just a few examples of the kinds of cases the American taxpayer is 

forced to subsidize. Americans should not be compelled to pay the lawyers who remove historic American symbols. The Public Expression of Religion Act would stop 

this action. I am glad to be a co-sponsor of this bill, and I urge support for its passage. 

Thank you, Mr. Chairman. 

[Recess.] 

Chairman SENSENBRENNER. It is now 5:45 p.m. The Committee 

will be in order. 

The Chair notes the presence of five Members, which is not a 

working quorum. Without objection, the Committee stands adjourned. 

[Whereupon, at 5:46 p.m., the Committee was adjourned.] 

BUSINESS MEETING 

(continued) 

THURSDAY, SEPTEMBER 7, 2006 

The Committee met, pursuant to notice, at 10:07 a.m., in Room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding. 

Chairman SENSENBRENNER. The Committee will be in order. A 

working quorum is present. 

Pursuant to notice, I call up the bill H.R. 2679, the ‘‘Public Expression of Religion Act,’’ for purposes of markup. 

When the Committee met and began consideration of this legislation on July 26, the Chair had moved that the Committee favorably 

recommend H.R. 2679 to the House and the bill was considered as 

read and open for amendment at any point. 

An amendment in the nature of a substitute had been offered by 

the gentleman from Indiana, Mr. Hostettler, to which several second-degree amendments were offered and rejected. 

When the Committee adjourned, pending was the secondary 

amendment offered by the gentlewoman from Texas, Ms. Jackson 

Lee, to the Hostettler amendment in the nature of a substitute. 

The Committee will now resume consideration of the Jackson Lee 

amendment. 

Are there any further Members who wish to speak on the amendment who have not previously been recognized? 

Mr. SCOTT. Parliamentary inquiry, Mr. Chairman. 

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Chairman SENSENBRENNER. State your inquiry. 

Mr. SCOTT. Could you state again what the pending business is? 

Chairman SENSENBRENNER. The pending business is consideration of the Jackson Lee amendment, and the only Member who 

has been recognized on this amendment is Ms. Jackson Lee. 

The question is on agreeing to the Jackson Lee amendment in 

the second degree, the amendment in the nature of a substitute. 

All in favor will say ‘‘aye.’’

Opposed, ‘‘no.’’

The noes appear to have it. The noes have it, and the amendment in the second degree in the nature of a substitute is not 

agreed to. 

Are there any further second-degree amendments to the 

Hostettler amendment in the nature of a substitute? 

For what purpose does the gentleman from Virginia seek recognition? 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. ‘‘Amendment to the Hostettler amendment in the nature of a substitute to H.R. 2679, offered by Mr. Scott of Virginia. 

On the first page, line 13, strike ‘the’ and insert ‘except in the case 

of’ ’’——

[The amendment offered by Mr. Scott follows:] 

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Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read and the gentleman from Virginia is recognized 

for 5 minutes. 

Mr. SCOTT. Mr. Chairman, this amendment says that, if the clerk 

had continued, ‘‘except in the case where the court finds that the 

defendant knowingly obeyed.’’ It deals with court orders, enforcing 

court orders. 

Mr. Chairman, my amendment seeks to provide an exception to 

the bill, where the establishment claims involve violation of a court 

order by the government. 

Mr. Chairman, 30 years ago, Congress recognized the importance 

of passing a law to ensure that those who suffer violations of their 

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constitutional rights or unconstitutional discrimination will be able 

to obtain legal representation to vindicate their civil rights. 

This bill would rescind the ability of victims whose rights have 

been found to have been violated under the color of law from receiving attorney’s fees and costs. This means that only the most 

fortunate of our society will be able to enforce their civil rights and 

seek redress when these rights are violated. 

It means less fortunate citizens can only do so if they raise 

enough money. When the cost of private enforcement becomes too 

great, there will not be any private enforcement and then our constitutional guarantees will be reduced to hollow pronouncements of 

the average American, because only the wealthy will be able to 

seek enforcement. 

This is bad public policy and it creates bad precedent. Yet, the 

bill goes even further. The bill would defy victims whose rights 

have been found to have been violated under the color of law by 

a court and whose rights continue to be violated, even after a court 

order, from the ability to see remedies other than those provided 

for in the bill, namely, injunctive and declaratory relief. 

But, clearly, if an entity violates the law in the first place and 

knowingly does so even after injunctive or declaratory relief has 

been ordered by a court, then some other remedy is necessary to 

enforce those rights. 

Moreover, a plaintiff who is required to go to court once in order 

to seek relief from the initial violation and then a second time in 

order to bring the continued violation, which may constitute contempt of court, to the court’s attention should be not required to 

do so at their own expense. 

If the plaintiff has already won the first case, with no attorney’s 

fees, and then the defendant doesn’t comply and the plaintiff has 

to go back to court, that plaintiff should be eligible for appropriate 

remedies and attorney’s fees. 

The court cannot enforce its own order if it is not aware of the 

contempt. This bill would charge the plaintiff with the duty of 

bringing the contempt to the court’s attention and then hit the 

plaintiff with the attorney’s fees. 

Now, that is not only poor policy, but bad precedent and it is extremely unfair. My amendment would remedy the wrong. 

Mr. Chairman, I ask unanimous consent, there is a typographical 

error in the amendment, where it says ‘‘obeyed,’’ on three different 

occasions, ‘‘it should be disobeyed.’’

Chairman SENSENBRENNER. Without objection. 

Mr. SCOTT. I would ask unanimous consent to make that correction. 

Chairman SENSENBRENNER. Without objection. 

Mr. SCOTT. I yield back. 

Chairman SENSENBRENNER. The gentleman from Indiana, Mr. 

Hostettler. 

Mr. HOSTETTLER. Mr. Chairman, move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. HOSTETTLER. Mr. Chairman, I rise in opposition to the 

amendment. The amendment should be rejected not only because 

it is unnecessary, but because it invites confusion. 

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As written, the base bill already provides a court with the full 

array of means to enforce its own orders. The base text limits only 

‘‘the remedies with respect to a claim under this section,’’ namely, 

42 USC 1983. 

If State or local officials violate a lawful order of the court, including, for example, an injunction, the court can hold them in contempt of court. Contempt of court is a remedy available, completely 

separate and apart from 42 USC 1983. 

Contempt of court, according to Black’s Law Dictionary, is ‘‘conduct that defies the authority or dignity of a court or legislature. 

Because such conduct interferes with the administration of justice, 

it is punishable usually by fine or imprisonment.’’ Depending on the nature of the violation, the officials may be 

held in civil or criminal contempt or court and have appropriate 

sanctions imposed on them, including paying the costs of the other 

side’s attorney’s fees. 

This bill leaves those remedies, which are subject to slightly different rules in different State and Federal jurisdictions, untouched. 

The Supreme Court discussed the power to punish for contempt 

in Chambers v. NASCO, stating that, ‘‘Courts of justice are universally acknowledged to be vested by their very creation with power 

to impose submissions to their lawful mandates. These powers are 

governed not by rule or statute, but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’’ The Court noted that a court can ‘‘impose, as part of the fine, attorney’s fees representing the entire costs of the litigation.’’ This 

case law remains completely untouched under this bill, which only 

amends two Federal statutes and leaves completely untouched current judicially applied rules governing sanctions and remedies for 

the violation of lawful court orders. 

So this amendment is unnecessary. But beyond that, this amendment is bad policy, because it implies that Congress wants the Federal statutory rules of attorney’s fees to apply in place of existing 

background rules already applied by State and Federal courts. 

That is not the intent of this bill and this amendment should be 

rejected. 

And I yield back. 

Mr. SCOTT. Would the gentleman yield? 

Mr. HOSTETTLER. Yes, yes. 

Mr. SCOTT. Did I understand you to say that notwithstanding the 

language at the bottom of page 2, that attorney’s fees in the case 

covered by this amendment would be available to the plaintiff? 

Mr. HOSTETTLER. Reclaiming my time. Those are rules with regard to the section of the law that we are amending. They do not 

apply to the issue of injunctions and contempt of court citations. 

The section of law that we are amending creates a statutory regime to allow for the awarding of attorney’s fees, without——

Mr. SCOTT. Prohibiting the awarding of attorney’s fees. 

Mr. HOSTETTLER. Yes, yes. Well, it covers the statute that allows 

awarding it. It removes that. It does not, however, change the rules 

of court action to say—it allows injunctions. It continues to allow 

injunctions. 

The legislation continues to allow the court to do that which the 

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tivity that is under question. It does not change the rules of the 

court regarding contempt. 

Mr. SCOTT. Would the gentleman yield? 

Mr. HOSTETTLER. Yes. 

Mr. SCOTT. The language on the bottom of page 2 says that ‘‘notwithstanding other provisions of law, the court shall not award reasonable attorney’s fees and expenses to attorneys to the prevailing 

party on a claim of injury consisting of the violation of a prohibition in the Constitution against the establishment of religion or 

against the United States or any agency,’’ and so on. 

It says that ‘‘the claim of injury consisting of a violation of a prohibition in the Constitution against the establishment of religion.’’

Mr. HOSTETTLER. Right. 

Mr. SCOTT. If that is the claim and you are trying to enforce that 

claim, this statute says you can’t get attorney’s fees. 

Mr. HOSTETTLER. The claim—reclaiming my——

Mr. SCOTT. The rule of courts cannot—can the rule of court overrule the statute? 

Mr. HOSTETTLER. Reclaiming my time. The claim is with regard 

to the constitutional question. The claim is not with regard to a 

contempt citation. 

The contempt citation is independent and the courts and the Supreme Court have held that. The contempt citation is not what is 

being altered here. 

Mr. SCOTT. Will the gentleman yield? 

Mr. HOSTETTLER. Yes, I will yield. 

Mr. SCOTT. Then my amendment would not offend your version 

of what you think the present law is. 

Mr. HOSTETTLER. No. Reclaiming my time. You say that if they 

disobey an order. This is unnecessary, because they can already 

allow for attorney’s fees as a result of——

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. CONYERS. Mr. Chairman? 

Chairman SENSENBRENNER. For what purpose does the gentleman from Michigan seek recognition? 

Mr. CONYERS. I rise to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. CONYERS. Because I just wanted to ask the gentleman from 

Indiana, the author of the bill, is it true that proponents of this 

amendment of yours and maybe yourself is to stop extortion by the 

American Civil Liberties Union and other civil rights organizations 

which use the threat of attorney fees to force governmental entities 

to remove religious symbols from public places? 

And I would yield to the author for any enlightenment. 

Mr. HOSTETTLER. Will you repeat the question? 

Mr. CONYERS. Yes. Is it true that this legislation has been stated 

by its proponents that its objective is to stop extortion by the American Civil Liberties Union and other civil rights organizations 

which use the threat of attorney fees to force governmental entities 

to remove religious symbols from public places? 

Mr. HOSTETTLER. If the gentleman will yield. 

Mr. CONYERS. Of course. 

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Mr. HOSTETTLER. I am not exactly sure what all outside groups 

have said about the legislation. 

Mr. CONYERS. But you haven’t said that. 

Mr. HOSTETTLER. But it is my desire—you said other civil liberties organizations. It is my desire that these cases go to court. 

The situation now is that the ACLU comes in and, with this tactic, and even testimony before the Subcommittee said this, that testimony before the Committee is the desire for this statute to be in 

place is so the cases don’t go to court, so that they can settle out 

of court. 

And my desire is to remove this impediment to these cases actually going to court. 

Mr. CONYERS. So is this description accurate that is being asserted, that the supporters of the amendment are saying about it? 

Mr. HOSTETTLER. I don’t know what—you will have to ask the 

supporters of the amendment. 

Mr. CONYERS. You are not one of them? 

Mr. HOSTETTLER. I am probably the prime supporter of the 

amendment. 

Mr. CONYERS. Yes. Well, is this accurate or not? You can say 

‘‘yes’’ or ‘‘no.’’ It won’t matter that much. 

Mr. HOSTETTLER. I don’t understand. Explain——

Mr. CONYERS. You don’t understand the question, okay. 

I yield to the gentleman from Virginia. 

Mr. SCOTT. Thank you. I thank the gentleman for yielding. 

As I understand the sponsor’s response, the amendment would 

clarify present law, would be consistent with present law, and, 

therefore, just to make sure that people understand it, my position 

would be it ought to be adopted. 

In addition to that, in cases like this, where you have had to go 

back to back to court to get somebody to enforce the law, you have 

not only the original violation, but continued violation. 

The plaintiff has had their rights violated. You have in the bill 

denied any compensatory damages. The contempt of court or whatever those are would go to the court, not to the plaintiff. 

And so you have allowed, throughout this entire process, continuing violations of constitutional rights, without any effective 

remedy, other than, after you get to court, to have them just stop. 

It seems to me that at least attorney’s fees ought to be clearly 

available the second time you have to go to court to make somebody finally obey the law. 

And I would hope, Mr. Chairman, that we would adopt the 

amendment. And thank the gentleman for yielding. 

Mr. HOSTETTLER. Will the gentleman yield? 

Mr. CONYERS. I would be happy to yield. 

Mr. HOSTETTLER. In your scenario, with regard to contempt of an 

action, what stops current processes from being in contempt and 

the defendant not paying the attorney’s fees and being in contempt 

of court in that fashion today? 

Mr. SCOTT. Will the gentleman yield? 

Mr. CONYERS. Yes. 

Mr. SCOTT. Under present law, you can get damages and attorney’s fees. 

Mr. HOSTETTLER. Right. 

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Mr. SCOTT. But not on your own dime. And this bill would require you to come forth, raise the money before you can even get 

the court to have them stop what may be an obvious flagrant violation. 

Mr. HOSTETTLER. Will the gentleman yield? 

Mr. CONYERS. Yes. 

Mr. HOSTETTLER. But today, not all of these cases—for example, 

the most recent Supreme Court case with regard to the Ten Commandments, whereby the plaintiff, the initial plaintiff had to pay 

all the attorney’s fees, because the case was found on the part of 

Governor Perry. 

So you are suggesting that somehow, in the future, injunctions 

by the courts will be disobeyed, it still is allowed today. It is the 

same scenario today that individuals—— Chairman SENSENBRENNER. The time of the gentleman from 

Michigan has expired. 

The question is on agreeing to the Scott amendment to the 

Hostettler amendment in the nature of a substitute. 

Those in favor will say ‘‘aye.’’

Opposed, ‘‘no.’’

The noes appear to have it. 

Rollcall is ordered. Those in favor of the Scott amendment in the 

second degree to the Hostettler amendment in the nature of a substitute will, as your names are called, answer ‘‘aye,’’ those opposed, 

‘‘no.’’

And the clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly? 

[No response.] 

Mr. Goodlatte? 

[No response.] 

Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Mr. Inglis? 

Mr. INGLIS. No. 

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The CLERK. Mr. Inglis, no. 

Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green? 

[No response.] 

Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. 

Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. 

Mr. Flake? 

[No response.] 

Mr. Pence? 

[No response.] 

Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. 

Mr. Gohmert? 

[No response.] 

Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. 

Mr. Berman? 

[No response.] 

Mr. Boucher? 

[No response.] 

Mr. Nadler? 

[No response.] 

Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren? 

[No response.] 

Ms. Jackson Lee? 

[No response.] 

Ms. Waters? 

[No response.] 

Mr. Meehan? 

[No response.] 

Mr. Delahunt? 

[No response.] 

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Mr. Wexler? 

[No response.] 

Mr. Weiner? 

Mr. WEINER. Pass. 

The CLERK. Mr. Weiner, pass. 

Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Ms. Sa ́nchez? 

[No response.] 

Mr. Van Hollen? 

[No response.] 

Mrs. Wasserman Schultz? 

[No response.] 

Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their votes? 

The gentleman from Indiana, Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? 

If not, the clerk will report. 

The CLERK. Mr. Chairman, there are five ‘‘ayes’’ and 17 ‘‘nays.’’

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

Are there further amendments? 

If there are no further amendments, the question is on agreeing 

to the Hostettler amendment in the nature of a substitute. 

All in favor will say ‘‘aye.’’

Opposed, ‘‘no.’’

The ayes appear to have it. The ayes have it. The amendment 

is agreed to. 

A reporting quorum is present. The question occurs on——

Mr. SCOTT. Mr. Chairman? 

Chairman SENSENBRENNER. For what purpose does the gentleman from Virginia seek recognition? 

Mr. SCOTT. To ask unanimous consent for a number of letters to 

be introduced in the record, including correspondence from the 

American Civil Liberties Union, the American Humanist Association, the American Jewish Committee, Americans United for Separation of Church and State, Anti-Defamation League, Baptist Joint 

Committee, Jewish Council for Public Affairs, Lawyers Committee 

for Civil Rights Under Law, Legal Momentum, National Council of 

Jewish Women, National Partnership for Women and Families, National Women’s Law Center, People for the American Way, Secular 

Coalition of America, Interface Alliance, Union of Reformed Judaism, American Trial Lawyers Association, and the Leadership Conference on Civil Rights. 

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Chairman SENSENBRENNER. Without objection. 

Mr. SCOTT. Thank you. 

[The letters follow:] 

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Chairman SENSENBRENNER. And now the question is shall the 

motion to report the bill, H.R. 2679, favorably, as amended, be 

agreed to? 

Those in favor will say ‘‘aye.’’ Opposed, ‘‘no.’’ The ayes appear to have it. The ayes have it, and the bill is reported favorably, as amended. 

Without objection, the bill will be reported favorably to the 

House in the form of a single amendment in the nature of a substitute, incorporating the amendments adopted. 

Without objection, the staff is directed to make any technical and 

conforming changes. And all Members will be given 2 days, as provided by the House rules, in which to submit additional dissenting, 

supplemental or minority views. 

[Intervening business.] 

[Whereupon, at 3:46 p.m., the Committee was adjourned.] 

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1 42 U.S.C. 1983. 

2 ‘‘Although [§1983] has been recodified and relatively recently amended, it has not been substantially altered since 1871. It does not appear that it has been amended so as to limit the 

type of damages available to litigants who choose to utilize its provisions regarding particular 

constitutional issues.’’ Memorandum to the House Judiciary Committee from Kenneth R. Thomas, Legislative Attorney, American Law Division, Congressional Research Service (July 15, 

2006)(citations omitted)(On file with Committee). 

DISSENTING VIEWS

H.R. 2679, the ‘‘Public Expression of Religion Act of 2006,’’

[PERA] undermines the ability of all Americans to seek court protection against violations of their rights under the Establishment 

Clause of the First Amendment of the U.S. Constitution. If passed, 

this legislation would, for the first time, strip our nation’s oldest 

civil rights law, the Civil Rights Act of 1871,1 of important remedies currently available to individuals whose religious liberty, protected by the Constitution, has been violated by the government.2

This legislation would undermine a critical enforcement mechanism 

that has successfully safeguarded our liberties for more than a century. 

PERA is opposed by numerous religious and civil liberties organizations including: Rev. Dr. C. Welton Gaddy, President, The Interfaith Alliance; Rev. Barry W. Lynn, Executive Director, Americans 

United for the Separation of Church and State; Richard Foltin, 

Legislative Director and Counsel, American Jewish Committee; K. 

Hollyn Hollman, General Counsel, Baptist Joint Committee for Religious Liberty; Wade Henderson, Executive Director, and Nancy 

Zirkin, Deputy Director, Leadership Conference on Civil Rights; 

Matthew Dietz, Chair 2006–2007, and Susan Ann Silverstein, 

Chair 2005–2006; Civil Rights Section, Association of Trail Lawyers of America; Phyllis Snyder, President, National Council of 

Jewish Women; Hadar Susskind, Washington Director, Jewish 

Council for Public Affairs; Ruth Flower, Legislative Director, 

Friends Committee on National Legislation; American Civil Liberties Union, American Humanist Association, American Jewish 

Committee, Americans United for the Separation of Church and 

State, Anti-Defamation League, Baptist Joint Committee, Jewish 

Council for Public Affairs, Lawyers Committee for Civil Rights 

under Law, Legal Momentum, National Council of Jewish Women, 

National Partnership for Women & Families, National Women’s 

Law Center, People For the American Way, Secular Coalition for 

America, The Interfaith Alliance, Union for Reform Judaism; and, 

Caroline Frederickson, Director and Terri Ann Schroeder, Senior 

Lobbyist, American Civil Liberties Union. 

For these reasons, and those discussed below, we respectfully dissent. 

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3 U.S. Const. amend I. The Establishment Clause states, ‘‘Congress shall make no law respecting an establishment of religion ... .’’ 4 Hostettler amendment in the nature of a substitute to H.R. 2679, §§ 2(a) and 3(a). 5PERA Hearing, at 6 (Statement of Rep. Hostettler). 

6 42 U.S.C. 1983. 

7 ‘‘An Act to preserve the Mt. Soledad Veterans Memorial in San Diego, California, by providing for the immediate acquisition of the memorial by the United States.’’ H.R. 5683 (109th 

Cong., 2d Session). Other potential cases are specified in the bill as reported, by adding a definition of ‘‘a claim or injury consisting of a violation of a prohibition in the Constitution against 

the establishment of religion’’ to include, but not to be limited to, cases against the United 

States involving religious symbols or text on veterans’ memorials or federal buildings, the official seal of the United States, U.S. currency, or the pledge or allegiance, the chartering of Boy 

Scout units by components of the armed forces, by other public entities, or the use of public 

facilities by the Boy Scouts. Hostettler amendment in the nature of a substitute to H.R. 2679, 

§ 3(b). The definition was also added to the section pertaining to cases brought under 42 U.S.C. 

1983. Id. § 2(b). 8Public Expression of Religion Act, Hearing Before the Subcommittee on the Constitution of 

the Committee on the Judiciary, U.S. House of Representatives, 109th Cong., 2d Session, Serial 

A. BACKGROUND

Representative John Hostettler introduced H.R. 2679, the ‘‘Public 

Expression of Religion Act of 2006,’’ on May 25, 2006. This bill will 

limit remedies under 42 U.S.C. § 1983, and attorneys’ fees under 42 

U.S.C. § 1988, available to prevailing plaintiffs alleging violations 

of their rights guaranteed by the Establishment Clause of the Constitution.3 An amendment in the nature of a substitute offered by 

Rep. Hostettler, and adopted during the Full Committee markup, 

expanded the coverage of the legislation to include actions against 

the United States. It also would permit declaratory relief, which 

the original bill, inexplicably, would have prohibited.4 The sponsor’s substitute also made the coverage of the bill retroactive to include cases pending on the date of enactment. 

The stated intent of the legislation is to stop what its proponents 

have described as ‘‘extortion’’ by the American Civil Liberties 

Union, and other civil rights organizations, which allegedly use the 

threat of attorneys’ fees to force governmental entities to remove 

religious symbols from public places.5

These fees are only awarded when a plaintiff prevails—when a 

court has found that a person ‘‘under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the 

District of Columbia, subjects, or causes to be subjected, any citizen 

of the United States or other person within the jurisdiction thereof 

to the deprivation of any rights, privileges, or immunities secured 

by the Constitution and laws ... .’’6

Section 1983 has been the premier enforcement mechanism for 

violations of constitutional rights. The establishment clause is just 

one of the many civil rights protected by §1983. PERA would single 

out a specific class of people who are attempting to protect their 

rights guaranteed under the Establishment Clause for different, 

adverse treatment under the law. 

B. THE LEGISLATION IS FAR BROADER THAN HAS BEEN

REPRESENTED

Proponents have focused on cases involving the use of religious 

symbols or other forms of religious expression such as the use of 

a cross on a city seal or the Mt. Soledad cross that was the subject 

of legislation passed by the House on July 19, 2006,7 or school 

graduation prayers.8

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No. 109–118 at 4–5 (June 22, 2006) (Statement of Representative. Hostettler) (Hereinafter 

‘‘PERA Hearing). 

11PERA Hearing, at (Testimony of Rees Lloyd). 12Letter to Memebers of the House of Representatives from Caroline Fredrickson and Terri 

Ann Schroeder (July 24, 2006). 13PERA Hearing at 164. 

. THERE IS NO THREAT TO RELIGIOUS SYMBOLS ON 

INDIVIDUAL GRAVE MARKERS. 

Some have argued that religious symbols on individual grave 

markers at veterans’ cemeteries are also at risk. For example, Rees 

Lloyd, testifying on behalf of the American Legion, stated, 

All across the nation, lawsuits are being brought under 

the establishment Clause to remove or destroy symbols of 

our American heritage from the public sphere if they have 

a religious aspect, principally the Christian Cross, but also 

the Star of David, both of which are present in the hundreds of thousands in our twenty-two National Cemeteries 

from Arlington in the East to Riverside National Cemetery 

in California, and across the sea at American cemeteries 

in Europe, including Normandy Beach, where there are 

more than 9,000 raised Crosses and Stars of David.11

In fact, no one has ever challenged the validity of religious symbols on the grave markers of individual veterans, chosen by those 

individuals or their families. No witness, no proponent of this legislation, has been able to point to a single such case. 

The ACLU has stated, 

Religious symbols on personal gravestones are vastly different from government-sponsored religious symbols or 

sectarian religious symbols on government- owned property. Gravestones and the symbols placed upon them are 

the choice of individual service members and their families. The ACLU would in fact vigorously defend the first 

amendment rights of all veteran Americans and service 

members to display the religious symbol of their choosing 

on their gravestone.12

Mr. Rees also stated that ‘‘I don’t think for a minute that there 

is anything in the law today that will protect us from such suits 

by terrorists or their sympathizers and their right to get attorney 

fees because you can’t give it to the ACLU and deny it to Osama 

bin Laden.’’13 Granting, arguendo, the impossible proposition that 

Osama bin Laden might seek to bring a §1983 action in Federal 

Court, were Congress to take this argument seriously, it would 

have to revoke every legal right or benefit to avoid the possibility 

that a terrorist, or a terrorist sympathizer, might also make use of 

that benefit. 

D. VETERANS’ ORGANIZATIONS DO NOT RISK PAYING FEE 

AWARDS IF THEY INTERVENE IN ESTABLISHMENT 

CLAUSE CASES. 

In his testimony, Mr. Lloyd stated that he advises his clients in 

the American Legion to refrain from filing briefs as amici curiae, 

or lobbying local elected officials, ‘‘because of the threat of attorney 

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14 Id. at 11. 15Letter from Marc D. Stern, Assistant Executive Director, American Jewish Congress, to Sen 

Sam Brownback (August 8, 2006). 16PERA Hearing, at 36 (testimony of Mathew Staver). 17PERA Hearing, at 4–5 (statement of Representative Hostettler). Lee v. Weisman, 505 U.S. 

577 (1992). Representative Scott offered an amendment to except from the bill’s restrictions 

cases involving sectarian prayer conducted by a governmental official in a public school. The 

amendment was rejected on a strict party-line vote. 18 42 U.S.C. § 1988(b), provides: 

tervene in such cases and fight the ACLU in protection of our veterans memorials because we run the risk because we run the risk 

then of having those fees shifted to us.’’14 As Marc Stern explained, 

The United States Supreme Court has held that in ordinary Title VII cases, attorney fees should be awarded 

against losing intervenors only where the intervenor’s action was frivolous, unreasonable, or without foundation.’’ Democratic Party v. Reed, 338 F3d 1281, 1288 (9th Cir. 

2004), citing Independent Flight Attendants v. Zipes, 491 

U.S. 761 (1989). Zipes also holds that fee shifting statues 

should be read in uniform fashion, such that §1988 would 

generally not permit intervenor liability.15

We are concerned not only that Congress might legislate based 

on a flawed reading of the law, but that members of the American 

Legion may refrain from asserting their views in court on matters 

of importance to their members in the mistaken belief that they 

face large penalties if the other side prevails. 

E. ATTACK ON THE ESTABLISHMENT CLAUSE 

Much of the testimony, and statements from the proponents, 

takes issue, not with the §1983, or with longstanding remedies 

available under §1988, but rather with the law of the Establishment Clause itself. While Members are certainly free to disagree 

with the interpretations of the Constitution by the courts, we believe it is inappropriate to cut off access to the courts, or remedies 

for people who have been found by the courts to have had their 

legal rights violated. 

For example, Mathew Staver told the Committee that ‘‘Establishment Clause jurisprudence is the most unpredictable and confusing 

area of the law. There have been and remain sharp differences between the Justices of the United States Supreme Court and lower 

court judges over the meaning of the Establishment Clause.’’16

Representative Hostettler cited a letter to public educators in Indiana from the Indiana Civil Liberties Union, which threatened 

legal action if they held prayers at graduations, in violation of clear 

and unambiguous Supreme Court precedent announced only the 

year before the ICLU letter was written.17

F. AWARDS OF ATTORNEYS’ FEES IN CIVIL RIGHTS CASES ARE A

VITAL TOOL IN CIVIL RIGHTS ENFORCEMENT

Federal civil rights laws, including the ‘‘Civil Rights Attorney’s 

Fees Awards Act of 1976,’’ permit awards of attorneys’’ fees.18

H.R. 2679 will bar the awarding of fees, as well as monetary 

damages, only in cases where the prevailing party had demonstrated a violation of § 1983 only with respect to the Establishment Clause of the First Amendment. 

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105 

19 H.R. 9, § 6(105th Cong.) The ‘‘Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006,’’ amending § 14(e) of the Voting 

Rights Act of 1965 (42 U.S.C. 19731(e)). 

‘‘In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, 

and 1986 of this title, title IX of Public Law 92–318, the Religious Freedom Restoration Act of 

1993, the Religious Land Use and Institutionalized Persons Act of 2000, title VI of the Civil 

Rights Act of 1964, or section 40302 of the Violence Against Women Act of 1994, the court, in 

its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an 

act or omission taken in such officer’s judicial capacity such officer shall not be held liable for 

any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.’’ 20 H. Rpt. 109–478, at 64–65 (2006) (emphasis added) (citations omitted). 21PERA Hearing at 167 (testimony of Marc Stern). 

Ironically, this Committee crafted, and the President signed, legislation reauthorizing the Voting Rights Act which expanded the 

attorneys’ fees provision of that statute to include ‘‘reasonable expert fees, and other reasonable litigation expenses.’’ 19

This Committee’s Report noted, 

In amending Section 14 of the VRA to explicitly include 

the recovery of expert costs as part of attorneys fees, the 

Committee seeks to update the Voting Rights Act of 1965 

to comport with other Federal civil rights laws. Early in 

1991, the Supreme Court held in West Virginia Hospitals, 

Inc. v. Casey that ‘Fees for services rendered by experts in 

civil rights litigation may not be shifted to the losing party 

as part of ‘a reasonable attorneys fee’ under Sec. 1988.’

Later that same year, Congress ‘amended the Civil Rights 

Act of 1964 to strengthen and improve Federal civil rights 

laws,’ including providing for the recovery of expert fees as 

part of attorneys fees. In amending the Civil Rights Act of 

1964, Congress specifically ‘recognized that evidence from 

one or more expert witnesses is critical to trying an employment discrimination case.’ The Committee finds the 

same to be true in the context of voting discrimination 

cases pursued under the relevant provisions of the VRA. 

The Committee received substantial testimony indicating 

that much of the burden associated with either proving or 

defending a Section 2 vote dilution claim is established by 

information that only an expert can prepare. In harmonizing the Voting Rights Act of 1965 with other Federal 

civil rights laws, the Committee also seeks to ensure that 

those minority voters who have been victimized by continued acts of discrimination are made whole.20

Fees and damages are also necessary in cases where an injunction would be an inadequate form of relief, because the violation is 

not ongoing. In cases, such as the Mt. Soledad case (which was decided under California law), where the government resisted enforcement of the court’s ruling for 15 years, fees and damages help 

to ensure that governmental officials do not flout the law.21 Contempt of court citations may penalize recalcitrant officials, but they 

in no way make the plaintiffs whole, nor do they assist those private parties in pursing the enforcement of their rights under the 

Constitution. 

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CONCLUSION

The Establishment Clause of the Constitution has long been a 

source of strong and heartfelt disagreement. These disagreements 

can, at times, get extremely emotional. Whatever form these disagreements take, we do not believe that dismantling our nation’s 

oldest civil rights law is an appropriate course of action. 

The Civil Rights Acts have been to important a tool in protecting 

the fundamental liberties for which this nation has always stood. 

We believe it would be a mistake, and a dangerous precedent, to 

begin the process of dismantling those laws. 

For these reasons, we respectfully dissent. 

DESCRIPTION OF AMENDMENTS OFFERED BY DEMOCRATIC MEMBERS

1. Amendment offered by Representative Jerrold Nadler (#2) 

Description of amendment: The Nadler amendment sought to except from the bill’s restrictions on relief and fees cases involving religious coercion. 

The amendment was defeated by a vote of 10 to 17. Ayes: Representatives CONYERS, NADLER, SCOTT, WATT, LOFGREN, JACKSON

LEE, WEINER, SCHIFF, SANCHEZ, and WASSERMAN SCHULTZ. Nays: 

Representatives COBLE, SMITH, CHABOT, LUNGREN, JENKINS, CANNON, BACHUS, INGLIS, HOSTETTLER, KELLER, PENCE, FORBES, KING, 

FEENEY, FRANKS, GOHMERT, and SENSENBRENNER. 

2. Amendment offered by Representative SCOTT (#3) 

Description of amendment: The Scott amendment sought to except from the bill’s restrictions cases involving sectarian prayer 

conducted by a governmental official in a public school. 

The amendment was defeated by a vote of 12 to 19. Ayes: Representatives CONYERS, BERMAN, NADLER, SCOTT, WATT, LOFGREN, 

JACKSON LEE, WEINER, SCHIFF, SANCHEZ, VAN HOLLEN, and 

WASSERMAN SCHULTZ. Nays: Representatives COBLE, SMITH, 

GALLEGLY, CHABOT, LUNGREN, JENKINS, CANNON, BACHUS, INGLIS, 

HOSTETTLER, GREEN, KELLER, ISSA, FORBES, KING, FEENEY, 

FRANKS, GOHMERT, and SENSENBRENNER. 

3. Amendment offered by Representative JACKSON LEE (#4) 

Description of amendment: Representative JACKSON LEE’s 

amendment sought to allow attorneys’ fees in cases alleging violations of the Establishment Clause to the same extent that such fees 

would be permitted in an action alleging the taking of private property without just compensation in violation of the Fifth Amendment. 

The amendment was defeated by a vote of 11 to 19. Ayes: Representatives CONYERS, BERMAN, NADLER, SCOTT, WATT, LOFGREN, 

JACKSON LEE, Weiner, SCHIFF, VAN HOLLEN, and WASSERMAN

SCHULTZ. Nays: Representatives COBLE, SMITH, GALLEGLY, 

CHABOT, LUNGREN, JENKINS, CANNON, BACHUS, HOSTETTLER, 

GREEN, KELLER, ISSA, FLAKE, FORBES, KING, FEENEY, FRANKS, 

GOHMERT, and SENSENBRENNER. 

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4. Amendment offered by Representative NADLER (#5) 

Description of amendment: The Nadler amendment sought to except from the bill’s restrictions cases involving a declaration of an 

official religion.’’

The amendment was defeated by a vote of 12 to 20. Ayes: Representatives CONYERS, BERMAN, NADLER, SCOTT, WATT, LOFGREN, 

JACKSON LEE, MEEHAN, WEINER, SCHIFF, VAN HOLLEN, and 

WASSERMAN SCHULTZ. Nays: Representatives COBLE, SMITH, 

GALLEGLY, CHABOT, LUNGREN, JENKINS, CANNON, BACHUS, INGLIS, 

HOSTETTLER, GREEN, KELLER, ISSA, FLAKE, FORBES, KING, FEENEY, 

FRANKS, GOHMERT, and SENSENBRENNER. 

5. Amendment offered by Representative JACKSON LEE (#6) 

Description of amendment: Ms. Jackson Lee’s amendment sought 

to restore prevailing plantiff attorney’s fees. 

The amendment was defeated by a voice vote. 

6. Amendment offered by Representative SCOTT (#7) 

Description of amendment: Mr. Scott’s amendment sought to provide an exception to the bill, where the establishment claims involve violation of a court order by the government. 

The amendment was defeated by a vote of 5 to 17. Ayes: Representatives CONYERS, SCOTT, WATT, WEINER, and SCHIFF. Nays: 

Representatives COBLE, SMITH, CHABOT, LUNGREN, JENKINS, CANNON, BACHUS, INGLIS, HOSTETTLER, KELLER, ISSA, PENCE, FORBES, 

KING, FEENEY, FRANKS, and SENSENBRENNER. 

JOHN CONYERS JR. 

BOBBY SCOTT. 

MAXINE WATERS. 

BILL DELAHUNT. 

LINDA T. S ́ ANCHEZ. 

DEBBIE WASERMAN SCHULTZ. JERROLD NADLER. MELVIN L. WATT. SHEILA JACKSON LEE. ROBERT WEXLER. CHRIS VAN HOLLEN. 

Æ 

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