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31–491 PDF 2007

S. HRG. 109–756

PAYING YOUR OWN WAY: CREATING A FAIR

STANDARD FOR ATTORNEY’S FEE AWARDS

IN ESTABLISHMENT CLAUSE CASES

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND PROPERTY RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

AUGUST 2, 2006

Serial No. J–109–104

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS

SAM BROWNBACK, Kansas, Chairman 

ARLEN SPECTER, Pennsylvania 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

RUSSELL D. FEINGOLD, Wisconsin 

EDWARD M. KENNEDY, Massachusetts 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

AJIT PAI, Majority Chief Counsel 

ROBERT F. SCHIFF, Democratic Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS

Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 1

prepared statement .......................................................................................... 60

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 3

WITNESSES 

Lloyd, Rees, Commander, District 21, Department of California, American 

Legion, Banning, California ................................................................................ 5

Rogers, Melissa, Visiting Professor of Religion and Public Policy, Wake Forest 

University Divinity School, Winston-Salem, North Carolina ........................... 12

Staver, Mathew D., Found and Chairman, Liberty Counsel and Interim Dean, 

Liberty University School of Law, Lynchburg, Virginia ................................... 10

Stern, Marc D., General Counsel, American Jewish Congress, New York, 

New York .............................................................................................................. 7

Woodruff, Shannon D., Senior Counsel, American Center for Law and Justice, 

Washington, D.C. ................................................................................................. 15

QUESTIONS AND ANSWERS 

Responses of Mathew Staver to questions submitted by Senator Feingold ........ 31

Responses of Melissa Rogers to questions submitted by Senator Feingold ........ 38

Responses of Shannon Woodruff to questions submitted by Senator Feingold .. 40

SUBMISSIONS FOR THE RECORD 

Alliance Defense Fund, Gary McCaleb, Esq., Senior Legal Counsel, Scottsdale, 

Arizona, statement ............................................................................................... 44

American Civil Rights Union, Susan A. Carleson, Chairman and Chief Executive Officer, Arlington, Virginia, letter ............................................................... 57

American Legion, Steve Robertson, Director, National Legislative Commission, Washington, D.C., letter ............................................................................. 58

Baptist Joint Committee for Religious Liberty, K. Hollyn Hollman, General 

Counsel, Washington, D.C., letter ...................................................................... 59

Destro, Robert A., Professor of Law, and Lincoln C. Oliphant, Research Fellow, Catholic University of America, Columbus School of Law, Interdisciplinary Program in Law & Religion, Marriage Law Project, Washington, D.C., 

statement .............................................................................................................. 61

Family Research Council, Tom McClusky, Vice President of Government Relations, Washington, D.C., letter ............................................................................ 66

Fitschen, Steven W., President, National Legal Foundation, Virginia Beach, 

Virginia, statement and letter ............................................................................ 67

Lloyd, Rees, Commander, District 21, Department of California, American 

Legion, Banning, California, statement ............................................................. 94

McElroy, James E., Attorney-at-Law, San Diego, California, letter ................... 106

Religious Freedom Coalition, William J. Murray, Chairman, Washington, 

D.C., letter ............................................................................................................ 109

Rogers, Melissa, Visiting Professor of Religion and Public Policy, Wake Forest 

University Divinity School, Winston-Salem, North Carolina, statement ........ 111

Staver, Mathew D., Founder and Chairman, Liberty Counsel and Interim 

Dean, Liberty University School of Law, Lynchburg, Virginia, statement 

and attachment .................................................................................................... 135

Stern, Marc D., General Counsel, American Jewish Congress, New York, 

New York, statement and attachments .............................................................. 174

Page

IV

Traditional Values Coalition, Rev. Louis P. Sheldon, Chairman, and Andrea 

S. Lafferty, Executive Director, Washington, D.C., letter ................................ 200

Woodruff, Shannon D., Senior Counsel, American Center for Law and Justice, 

Washington, D.C., statement .............................................................................. 202

(1)

PAYING YOUR OWN WAY: CREATING A FAIR 

STANDARD FOR ATTORNEY’S FEE AWARDS 

IN ESTABLISHMENT CLAUSE CASES 

WEDNESDAY, AUGUST 2, 2006

UNITED STATES SENATE, 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND

PROPERTY RIGHTS, COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 2:34 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Sam Brownback, 

Chairman of the Subcommittee, presiding. 

Present: Senators Brownback and Feingold. 

OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. 

SENATOR FROM THE STATE OF KANSAS 

Chairman BROWNBACK. I will call the hearing to order. Thank 

you for joining us today. My colleague, Senator Feingold, will be 

here shortly. We are going to go ahead and start the hearing. 

I want to thank all the witnesses for coming today and for appearing in front of the Subcommittee. I look forward to hearing 

your testimony. 

Since the founding of the American legal systems, courts have required that all parties to a lawsuit pay their own attorney’s fees. 

This standard is known as the ‘‘American rule,’’ and that was an 

explicit break from the ‘‘loser pays’’ systems employed by English 

courts. I was a practicing lawyer myself. That was the rule in the 

system that I played under. The American rule applies in all circumstances except where Congress has expressly created an exception, and today we are going to discuss one of those exceptions. 

Under 42 U.S.C. 1983, individuals can sue State and local governments for alleged violations of their constitutional rights. And 

under 42 U.S.C. 1988, successful plaintiffs, technically known as 

‘‘prevailing parties,’’ can petition a court to recover attorney’s fees 

from the Government. Section 1988, originally known as the ‘‘Civil 

Rights Attorney’s Fee Award Act,’’ was adopted by Congress in 

1976 to assist individuals in combating civil rights abuses by allowing them to recover their attorney’s fees from the Government 

when the court found a constitutional violation had occurred. A 

similar exception was adopted in 1994 to allow fee shifting in suits 

against the Federal Government. 

Today, groups like the ACLU and others use these provisions to 

bring claims against the Government for alleged violations of the 

Establishment Clause. Here we are not talking about civil rights 

2

cases. We are talking about Establishment Clause cases. If they 

are successful, they may not only obtain an injunction to stop the 

offending practice, but they may also recover hundreds of thousands of dollars in fees. We have seen a number of examples of this 

in recent years. 

In 2003, the ACLU sued to prevent the city of San Diego from 

allowing the Boy Scouts to use a public park. The city settled the 

case, but not before agreeing to pay the ACLU $950,000 in attorney’s fees. 

In 2002, ACLU and others sued the Chief Justice of the Alabama 

Supreme Court to have a monument of the Ten Commandments removed from the Alabama Supreme Court building. In addition to 

forcing the removal, they collected $550,000 in fees from the State 

of Alabama. 

In 2004, the ACLU collected $63,000 in fees after suing to remove a World War I memorial cross from the Mojave National Preserve in California. 

In 2005, the ACLU collected $150,000 in fees after litigating a 

case in which the court ordered a framed copy of the Ten Commandments removed from the Barrow County Courthouse in Georgia. 

In 2004, the ACLU threatened to sue the city of Redlands, California, alleging that its official seal, which contained a cross and 

a church, was an unconstitutional violation of the Establishment 

Clause. Rather than risk incurring costly damages, the city complied and removed the cross. When groups protested, ACLU attorney Ben Wizner stated, ‘‘If the mayor and city council bend to public pressure and restore the sectarian religious symbol to the city 

seal, the people of Redlands will get a very expensive civic lesson 

from the Federal courts.’’ 

Based on their success in Redlands, the ACLU then threatened 

to sue Los Angeles County because the county’s official seal contained a tiny cross. The Board of Supervisors voted to remove the 

cross to avoid expensive litigation. 

We actually have a chart of these to show what the original seal 

looked like and what the new version looked like, and you can see, 

as they get those held up there—the one on the left, my left, is the 

original version, on the right is the new one—the size of the offending cross. Thank you very much for holding that up. 

With the threat of such large awards looming over their heads, 

many jurisdictions simply acquiesce to the demands of the ACLU 

and prohibit all displays of religious faith in order to avoid the potential expensive litigation. The legal fees is the threat that the 

ACLU uses. The aims of these outside groups have no basis in the 

text and purpose of Section 1988. Congress’ intent in passing the 

fee- shifting statute in 1976 was to prevent racial injustice and discrimination. Thirty years later, these laws are being used simply 

to purge religious faith and symbols of any faith from our society 

at taxpayer expense. 

I recently introduced a bill which would require parties in Establishment Clause cases to pay their own attorney’s fees. This bill 

has an identical bill offered in the House, commonly known as ‘‘The 

Public Expressions of Religion Protection Act of 2006.’’ It would 

amend 42 U.S.C. 1983 and 1988 to limit recovery in Establishment 

3

Clause cases only to injunctive and declaratory relief and to preserve the long-established principle that each side should pay its 

own way into the courtroom. 

And I would note at this point in time just what the Establishment Clause says. It says, ‘‘Congress shall make no law respecting 

an establishment of religion or prohibit the free expression thereof.’’ The bill has several cosponsors, has strong support from a 

number of outside groups, including the American Legion. I have 

support from these groups, and I will enter them into the record. 

I look forward to the discussion on this important issue from this 

panel. It is an interesting legal issue. It is one that has a great 

deal of bearing on a lot of our litigation that takes place in public 

venues today regarding expression of faith and symbols of faith. So 

I look forward to the testimony in this hearing and to other hearings that we will have in further delving into this particular issue. 

I will now turn to my colleague, Senator Feingold, for his opening statement. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. I, of course, want 

to join you in welcoming our witnesses, and I thank you and your 

staff for working with us to have this hearing on the remedies 

available in cases involving challenges to Government action under 

the Establishment Clause of the First Amendment to the Constitution. 

Mr. Chairman, the desire for freedom of religious expression was 

a very important motivation for both the establishment of the 

American colonies and the founding of this country. The Constitution contains two important guarantees of religious freedom in the 

First Amendment: Americans have the right to freely exercise their 

religion, and Americans of any faith or no faith at all have the 

right to be free from Government establishment of religion in their 

lives. 

The Establishment Clause and the Free Exercise Clause have 

created some tension and uncertainty throughout our history, but 

together they have allowed a freedom of religion and religion itself 

to thrive in this country for over 200 years. So, Mr. Chairman, 

when I see proposed legislation that could stifle claims challenging 

violations of religious freedom, I am wary. I certainly have reservations about the bill you introduced last month, S. 3696, which 

would prohibit Federal courts from awarding damages and reasonable attorney’s fees and costs to parties who prevail in Establishment Clause cases. 

For that reason, I find the title of today’s hearing, ‘‘Paying Your 

Own Way: Creating a Fair Standard for Attorney’s Fees Awards in 

Establishment Clause Cases,’’ to be a bit misleading. It is hard to 

see what is fair about a standard that singles out one of the Constitution’s twin guarantees of religious freedom to be less worthy 

of protection than the other or than any other constitutional right. 

Congress made the judgment right after the Civil War that citizens should be able to defend their constitutional rights by bringing actions against State and local governments. And 30 years ago, 

Congress recognized that being able to obtain reasonable attorney’s 

4

fees was a crucial component of the right to obtain redress when 

the Government violates constitutional guarantees. By barring the 

award of attorney’s fees to prevailing parties in certain cases, this 

legislation will, in fact, discourage people from asserting their 

rights. And I note that this has nothing to do with deterring frivolous claims since, under Rule 11, sanctions already exist for that 

purpose. Instead, the bill seems intended to deter even valid 

claims. Remember also that fees under the Equal Access to Justice 

Act are available only in cases where the Government’s position 

was not substantially justified. This bill would deny fees even in 

the narrow category of cases where fees are permitted under that 

statute. 

The only reason I can see for this approach is hostility to decisions that the courts have reached in some religious freedom cases. 

I understand that some people are upset with how the courts have 

enforced the Establishment Clause, but we have a system of law 

in this country that has stood the test of time. The courts are the 

final arbiter of the meaning of the Constitution, and their decisions 

can be overturned only by appeal or ultimately by amending the 

Constitution. 

In my view, depriving people of the lawyers they need to assert 

their rights by trying to deprive the courts of jurisdiction over certain constitutional claims is the wrong way to go about trying to 

change the law. And it sets a dangerous precedent as well. 

What will be the next constitutional right to be relegated to second-class status? 

Mr. Chairman, I was struck by something that Peter Keisler, the 

President’s latest nominee to the D.C. Circuit, said in his opening 

remarks at yesterday’s nomination hearing in the full Committee. 

He was talking about the great honor it is to be a judge in our legal 

system. He said that in our system, ‘‘Anybody can file a case, make 

an argument, and be heard by a decisionmaker.’’ And he noted 

with pride that in this country, ‘‘People are entitled to their day in 

court.’’ 

I agree with those sentiments. But I would note that they are 

given meaning by laws like 14 U.S.C. Section 1988 and the Equal 

Access to Justice Act, which help assure that people with valid constitutional claims will get their day in court even if they can’t afford a lawyer. 

Again, Mr. Chairman, I believe that both of the religion clauses 

of the First Amendment are critical in protecting religious freedom 

and allowing Americans to practice, express, and thrive in whatever religion they choose. Unfortunately, S. 3696, like the bill in 

the House, would put a finger on the scales of justice, and I cannot 

support that. 

But, Mr. Chairman, I thank you and I look forward to hearing 

from our witnesses. 

Chairman BROWNBACK. Thank you very much. 

We have got an excellent panel. Our first witness is Rees Lloyd. 

He is a Vietnam veteran, a former ACLU attorney, and he current 

serves as Commander of District 21 of the American Legion, Department of California. 

The next witness is Mr. Marc Stern, Assistant Executive Director 

and General Counsel for the American Jewish Congress. 

5

The third witness will be Mr. Mathew Staver, Founder and 

Chairman of Liberty Counsel and Interim Dean and Professor of 

Law at Liberty University. 

Next we will hear from Melissa Rogers, who is a Visiting Professor of Law and Public Policy at Wake Forest University Divinity 

School, previously served as Executive Director of the Pew Forum 

on Religion and Public Life in Washington, D.C. 

And our final witness is Shannon Woodruff, Senior Research 

Counsel for the American Center for Law and Justice here in 

Washington. 

I will run the time clock—let’s run it at 6 minutes— to give you 

an outline of where you are. You can go over that if you need to. 

All of your written statements will be placed into the record as if 

presented. I don’t know how Senator Feingold is. I prefer a summary and then to be able to engage in questions and answers. But 

do as you see fit and as you would like to. But I think this is the 

first time this Committee has heard this issue. I believe there has 

been a hearing in the House. We do want to establish a record, but 

we really want to try to get thoughts and input from people on a 

topic that may have multiple hearings to come in the future. So all 

your written statements will be placed in the record as if presented. We will do that already. 

Mr. Lloyd, delighted to have you here. The floor is yours. 

STATEMENT OF REES LLOYD, COMMANDER, DISTRICT 21, DEPARTMENT OF CALIFORNIA, THE AMERICAN LEGION, BANNING, CALIFORNIA 

Mr. LLOYD. Thank you very much, Mr. Chairman. I am very 

thankful for the opportunity that has been extended to the American Legion to present its views on this issue, and I am honored 

to be able to represent the largest wartime veterans organization 

in the world, with 2.7 million members in our family in the American Legion of Legionnaires, Auxiliary, and the Sons of the American Legion involving some 4 million members. 

I was very interested in the opening statements that were made 

from both of the Senators, and I will try to address some of the 

things that were raised. I was particularly interested in the notion 

that the filing of lawsuits under the Establishment Clause would 

be stifled if attorneys were not able to collect fees therefrom. I 

would think that if an examination of the cases under the Establishment Clause in the last 20 years would indicate anybody with 

an Establishment Clause in this country who goes without a lawyer, it would be astounding to me because the ACLU would be 

rushing there, as they have in every case. I do not believe there 

would be any stifling whatsoever. But I do think that it ought to 

be appreciated that there is a chilling effect on the First Amendment rights of those who are opposed to the view of the ACLU and 

others epitomized by the ACLU, and that chilling effect comes 

about because these attorney fees are not at all awarded on the 

basis of prevailing party. The ACLU wins, they collect. They lose, 

they don’t pay. 

The reason for that is that filing of a lawsuit under the Establishment Clause is itself a First Amendment right, and in order for 

a plaintiff to have to pay fees is a very, very high standard, almost 

6

legally frivolous. So this is not in any way a level playing field in 

terms of prevailing party receiving attorney fees. 

The other dimension is, I think, exemplified best or illuminated 

by what happened in the Senate yesterday, and that was a unanimous vote to approve the Mount Soledad Protection Act. Mount 

Soledad right now is a case of national attention involving the Veterans’ Memorial in San Diego, California, which has existed for 

half a century. A lawsuit was brought by an atheist, backed by an 

attorney who was backed by the ACLU. Litigation has gone on for 

some 17 years. A judge in May ordered the cross destroyed, or he 

would fine the taxpayers $5,000 a day. As a result of that, there 

is a lot of litigation involved, including the Supreme Court’s stay 

order and this action yesterday. 

We in the American Legion are amicus curiae in that case. We 

would like to be able to more fully participate. But I cannot advise 

my clients to do so because they then run the risk of paying the 

ACLU’s attorney, usually at the tune of $350 an hour. 

I would like the Senators to appreciate that in the initial litigation in Mount Soledad, the plaintiffs included the president of the 

San Diegans for Mount Soledad, Mr. Phil Thalheimer, the son of 

Holocaust victims. It included a war hero, Dr. John Steele, Navy 

pilot and later medical officer. It included George and Craig 

Dewhurst, who were the sons of the person who built the monument. 

When the lawsuits were filed with them, the attorney representing the plaintiff sent letters to them threatening them, ‘‘If 

you remain in this lawsuit, we will seek attorney fees against you 

individually to the tune of $300,000.’’ All three of them had to withdraw. 

In your opening statement, Mr. Chairman, you indicated some of 

the cases in California, one of which is the L.A. Seal case. The 

boards that you demonstrated show a tiny seal, and, in fact, that 

is an exact representation of the Hollywood Bowl. And if you go to 

the Hollywood Bowl and look out, you are going to see that cross 

because it stands on private land on a mountain. It is an exact replication, but history has to be changed now because that is offensive to the ACLU, although that cross is part of our environment 

in Los Angeles on private land. 

In addition, you will notice the substitution that has been made. 

That is the San Gabriel Mission. On that mission, there is a cross 

on the top. If you hold up the board again, you are not going to 

see that cross because it has been whitewashed out. It is no longer 

there. That is a church. The ACLU is offended by the tiny cross, 

but not by the mission, San Gabriel. But what they did was to airbrush out the cross on the top of the mission apparently so those 

who are not from California won’t realize what it is. That is the 

kind of hocus-pocus that is going on to accommodate views that are 

absolutely in the extreme and have made the ACLU the Taliban 

of American liberal secularism. 

I do not speak as a person who has an inveterate hatred of the 

ACLU. I was an ACLU staff attorney in Southern California. I am 

proud of my service there. I have been a civil rights attorney my 

entire professional life. I was an attorney for Cesar Chavez and the 

Farm Workers Union for 20 years. I know a little bit about civil 

7

rights, and I know I never took a case because I had to be bribed 

into taking it by an attorney fee provision. We took those cases because we believed in them and we did it on principle. And this Act 

is absolutely vital and necessary to stop the assaults on our veterans’ memorials, other institutions of our country, symbols of our 

American heritage that are being wiped out because they are offensive to some small group of people, even though they are actual 

symbols of our American history and heritage. 

We are vitally concerned about preservation of our veterans’ memorials all across this country in the American Legion, and they 

are under attack. Suits are being filed all across the country. Taxpayers are unaware of the millions of dollars that are being expended in attorney fees in profits, and it is being used as a bludgeon on local elected bodies who cannot even consider our complaints because their minds are made up in advance because they 

cannot risk attorney fees being imposed. 

And, finally, there is nothing in the law today to stop the precedents being set in the Mojave Desert Veterans’ Memorial case and 

the Mount Soledad case from being used by Islamist terrorists or 

sympathizers in our midst to sue our American institutions, our 

veterans’ memorials, and then seek and receive attorney fees. And 

I would ask you to appreciate that. I know some people took that 

lightly when I raised it before. I suggest they take a look at all the 

litigation out of Guantanamo and the litigation to release the photographs from Iraq, all of which were brought by sympathizers. 

I thank you, Mr. Chairman. 

[The prepared statement of Mr. Lloyd appears as a submission 

for the record.] 

Chairman BROWNBACK. Thank you, Mr. Lloyd. I appreciate your 

testimony and look forward to question-and-answer session. 

Mr. Stern, thank you for joining us today. 

STATEMENT OF MARC D. STERN, GENERAL COUNSEL, 

AMERICAN JEWISH CONGRESS, NEW YORK, NEW YORK 

Mr. STERN. Thank you, Mr. Chairman. 

I don’t take Mr. Rees Lloyd’s charge lightly that we took his remarks lightly about terrorism. I don’t take that lightly at all. It is 

a form of modern-day McCarthyism that charges that anybody who 

brings a lawsuit that the American Legion doesn’t like is a fellow 

traveler of al Qaeda and other terrorists, as if those groups routinely resort to our courts to achieve their aims. I would think that 

we can have a hearing without that sort of name-calling. 

The bill before us differs in two important respects from the 

House bill. They ought to be noted. One is a marked improvement; 

that is, the House bill even prohibited declaratory judgments. The 

Senate bill would allow declaratory judgments to be sought and 

awarded. That is clearly an advance over the House bill. However, 

and perhaps inadvertently, the Senate bill, in referring to the ban 

on attorney fees ‘‘notwithstanding any other provision of law,’’ 

would seem to prohibit the award of attorney’s fees even where a 

defense is frivolous within the meaning of F.R.Civ.P. Rule 11 or in 

cases where there was a contemptuous defiance of a court order, 

as there was in the case of Judge Roy Moore. It is well settled that 

district courts have the authority to award attorney’s fees to parVerDate 0ct 09 2002 13:24 Jan 17, 2007 Jkt 031491 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31491.TXT SJUD4 PsN: CMORC
8

ties who were forced to bring enforcement actions in contempt proceedings. The ban on fees in cases may be inadvertent, but the bill 

appears to forbid the award of attorney’s fees or damages even 

when those occur in a contempt situation. So those are differences 

with the House bill. Again, I don’t know if they are intentional or 

not, but there they are. 

The central question before the Committee is whether there is a 

reason to distinguish Establishment Clause cases, as Senator Feingold said, from the entire universe of constitutional and civil liberties claims. There are difficult constitutional issues across the 

Constitution. Those of us who suffered through law school remember the difficulty in determining—this was a long time ago when 

the law was a lot of simpler—between a regulatory taking that was 

permissible and one that gives rise to a cause of damage. Constitutional lawyers have been fighting about what that means since 

Pennsylvania Coal up to, I think, the last Supreme Court term or 

the term before. 

The public forum doctrine is completely chaotic. The Fourth 

Amendment, as the police regularly complain, is incoherent. As for 

law professors—open any law review and you will find some law 

professor complaining about some line of constitutional cases not 

making any sense. There is nothing particularly unique about the 

Establishment Clause being difficult. 

If the Committee wants to create a good-faith exception where 

local governing body could not figure out what the constitutional 

answer is, because nobody can figure out the answer, then that exception should apply not only to Establishment Clause claims but 

to all constitutional cases. Whether that is a good idea or not is a 

separate question. The question that needs to be asked today is: 

Why is the Establishment Clause different? 

I have not heard or read anything, both in the House hearing 

and the testimony here and the statements of the members of the 

Committee today, which explains that distinction, other than perhaps a hostility to the way the courts are deciding Establishment 

Clause cases. 

The bill before this Committee attacks two problems: remedies, 

particularly monetary damages, nominal damages, actual damages, 

and the like; and attorney’s fees. Most of what we have heard 

today, most of what we heard in the House of Representatives 

Committee hearing, was about the problem of attorney’s fees. We 

have not heard much which would justify the denial of actual damages in Establishment Clause cases. 

There are two problems with the provisions relating to damages. 

One is there are actually Establishment Clause cases where there 

are real damages. For instance, there is a lawsuit now pending in 

the District of Columbia brought by non-liturgical church chaplains 

claiming that plaintiffs are at a disadvantage in the Navy promotion process—I believe it is the Navy—because there is a favoritism in favor of so-called liturgical churches. 

Plaintiffs are seeking promotions and back pay. Those are real, 

hard, tangible, traditional damages. They would be barred by this 

bill. 

There are cases—Municipal Rescue Mission, that case, which 

started in the 1930s, is still going on. There you have regulation 

9

of disfavored religious charities, and a pass for favored religious 

charities. Disfavored charities have sought damages for additional 

costs and for lost solicitations. Those are traditional damages. They 

would be barred by this bill. 

Moreover, I have in my hands, which I would like to make part 

of the record, the final judgment in Hansen v. Ann Arbor Public 

Schools, a case in which on a Diversity Day, liberal ministers were 

invited to explain why the Bible does not ban homosexuality. When 

students asked to have a conservative pastor brought in to participate in that panel, he was barred. 

The District Court, quite properly, found a violation of the Establishment Clause. The judgment is in favor of plaintiffs, against defendants, in the amount of $35 nominal damages and $87,000 in 

attorney’s fees. That is not an ACLU lawsuit. It is a conservative 

lawsuit, a conservative legal fund, and you have nominal damages. 

Without those nominal damages, the lawsuit would have been 

moot. It was a one-time event. It was over by the time it could be 

litigated. Eliminating nominal damages meant that the plaintiffs in 

Hansen would have been out of court. 

There are other such cases. The elimination of damages, which 

I have not heard justified, has serious implications, both on the 

merits and in procedural terms. 

Finally, there is the question of attorney’s fees, which I have 

dealt with at length in American Jewish Congress’s written testimony. Exactly how radical this proposal is for at least some of its 

proponents on this side of the table is illustrated by two of the 

cases that Ms. Woodruff cites in her written remarks, as exemplifying how the ACLU, has abused the privilege of attorney’s fees. 

Those cases are Freiler v. Tangipahoa Parish School Board and 

Wynne v. Great Falls School District. I want to tell you the facts 

of those cases because they illustrate exactly how far this bill goes. 

Freiler involved a school board’s disclaimer of the theory of evolution. I think disclaimer can be written, and ought to be written, 

but not the way Taugipakoa Parish did. This particular disclaimer 

read that the theory of evolution is not necessarily in conflict in the 

school board’s view, with—and I am quoting here—‘‘the biblical 

version’’ of the creation of man. 

Now there is no ‘‘the biblical version’’ of the creation of man, except for absolute biblical literalist. But there are lots of religious 

views, which are catalogued in my amicus brief in that case, by 

very orthodox religious groups that don’t read the Bible literally. 

Here you have the Government taking a stand about how people 

ought to read the Bible. 

In Wynne, a town council always prayed in Christian terms, in 

the words of the Fourth Circuit, hardly one of the ACLU’s favorite 

circuits, you had a government affiliated with a specific faith. 

Those are the sorts of cases which arise, which are clear violations of the Establishment Clause on almost anybody’s reading of 

it, an official preference for one faith or the other, not in the historical context but in a current, contemporary context, and which 

would be barred from attorney’s fees by this legislation. Wynne, incidentally, was not an ACLU case. It was a private lawyer who was 

handling the case for an impecunious individual on her own. 

10

Freiler I believe was an ACLU case. Wynne is a case that would 

be really out of court if this bill were adopted. 

Thank you very much. 

[The prepared statement of Mr. Stern appears as a submission 

for the record.] 

Chairman BROWNBACK. Thank you, Mr. Stern. 

Senator FEINGOLD. I apologize for interrupting, but I have to 

leave the hearing. 

Chairman BROWNBACK. Before I forget, you had a written statement that you wanted at the end of that or something entered into 

the record. 

Senator FEINGOLD. Yes. 

Chairman BROWNBACK. That will be placed in the record. 

Senator FEINGOLD. I have a similar request. I apologize for having to leave. This is an important hearing, but I have to go to an 

important hearing of the Intelligence Committee. And before I go, 

I wanted to put a few things in the record, if that would be all 

right. 

Chairman BROWNBACK. Without objection. 

Senator FEINGOLD. I hope to be able to return, but if I cannot 

I want to thank all the witnesses, and please excuse me for not 

being able to stay. 

I would like to submit for the record letters from the American 

Civil Liberties Union, the Americans United for Separation of 

Church and State, and the Jewish Council for Public Affairs expressing opposition to S. 3696. 

Chairman BROWNBACK. Without objection. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman BROWNBACK. Thank you. Thank you for being here. I 

hope you can return. We will have a good dialogue. 

Mr. Staver, thanks for being here. 

STATEMENT OF MATHEW D. STAVER, FOUNDER AND CHAIRMAN, LIBERTY COUNSEL, AND INTERIM DEAN, LIBERTY UNIVERSITY SCHOOL OF LAW, LYNCHBURG, VIRGINIA 

Mr. STAVER. Mr. Chairman, Senator Feingold, members of the 

Committee, thank you for inviting me. My name is Mathew Staver. 

I am Founder and Chairman of Liberty Counsel and the Interim 

Dean and professor of Law of Liberty University School of Law. 

I come to this Committee having litigated and taught extensively 

in the areas relevant to the subject matter of S. 3696. Sections 

1983 and 1988 are exceptions to the American rule for damages 

and attorney’s fees. Absent an authorizing statute, the American 

rule provides that each party bear their own cost. These sections 

are particularly suited for those cases in which plaintiffs are ill-financed and where the law has relatively predictability. However, 

in Establishment Clause cases, many, if not most, of the plaintiffs 

are represented by public interest law firms which will finance the 

case, irrespective of these statutes. 

Moreover, Establishment Clause jurisprudence is the most unpredictable and confusing area of law. There have been and remain 

sharp disagreements among the Justices of the Supreme Court 

over the meaning and application of the Establishment Clause. In 

an area of law where there are conflicting court decisions for every 

11

conceivable proposition, it makes little sense to award damages and 

attorney’s fees to plaintiffs with diametrically opposed positions. 

Instead of encouraging ill-financed plaintiffs to vindicate their 

rights, these statutes have become a financial bonanza to attorneys 

on both sides of the Establishment Clause cases. 

While conflicting court opinions will invariably occur in any area 

of law, it is particularly troubling when conflicting opinions are the 

rule rather than the exception. In my written testimony, I discuss 

in detail absurd examples of court decisions that reached opposite 

and irreconcilable results. One sad example involves New York 

City public school funding cases which were litigated at enormous 

expense over a decade or more. The same school district paid large 

attorney’s fees after losing its case at the Supreme Court. But 10 

years later, following a second challenge, this time this same school 

district won. In the Agostini decision, the Court overruled its prior 

precedent involving the same New York City school district. However, the scarce tax dollars were diverted to attorneys rather than 

to the disadvantaged school children. 

By providing damages in a fee-shifting statute in such a confused 

area of law, the complaining plaintiff often uses the mere threat of 

financial punishment to force government officials to a desired result, even if the result is not the right one. The confused and conflicted opinions of the Establishment Clause is certainly evident 

with the Supreme Court itself. The Supreme Court Justices have 

called the Establishment Clause ‘‘hopelessly confusing.’’ I don’t 

think there is any other area of law that they have criticized so vociferously as in the Establishment Clause. 

The Court currently uses several tests, some of which conflict 

with one another, and sometimes the high Court forgoes using any 

test at all. The Court uses the oft-maligned three-prong Lemon

test. The Court later modified the three prongs to two prongs. But 

in certain institutional funding cases, the Court may resurrect the 

third prong. 

For several years, the Court added what is called the ‘‘political 

divisiveness prong,’’ but then overruled itself and eliminated this 

prong. The Court also uses the historical analysis in Marsh. In 

most cases, the Marsh test cannot be reconciled with the Lemon

test. The plaintiff can win under one test and lose under the other, 

but we are left with little or no guidance to determine which test 

should be used. 

The Court in Lee v. Weisman developed the so-called coercion 

test, but Justices are not in agreement when it should be used, nor 

do they agree whether coercion is psychological only or whether it 

involve some kind of force or penalty. 

Knowing the problem created by the Court itself, Justice Sandra 

Day O’Connor, shortly before her retirement, proposed a brand new 

test in the Newdow case that was supposed to be used in limited 

situations. Justice Thomas, however, has now advocated that the 

Establishment Clause does not even apply to nor bind the States. 

Then, of course, the Court sometimes uses no test at all and, 

even worse, provides absolutely no explanation as to why no test 

is used. 

If the Justices of the Supreme Court are conflicted over the 

meaning of the Establishment Clause, then it is particularly inapVerDate 0ct 09 2002 13:24 Jan 17, 2007 Jkt 031491 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31491.TXT SJUD4 PsN: CMORC
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propriate to punish government officials with the threat of damages and attorney’s fees for a mere misstep in this constitutional 

mine field. 

For example, the Ten Commandments case, one of which I argued in 2005, is absolutely irreconcilable. No professor of law or 

practitioner in this area has argued that these cases are reconcilable, no matter what side of the aisle you come from on the Establishment Clause. The Supreme Court on the same day heard oral 

arguments on Ten Commandments decisions and handed them 

down on the same day as well. Justice Sandra Day O’Connor, just 

before her retirement, said the Court had an opportunity to clarify 

but missed the opportunity in this case and, in fact, caused further 

confusion. 

Indeed, on December 20, 2005, a unanimous Court of Appeals for 

the Sixth Circuit Court of Appeals said that, ‘‘The Supreme Court 

has left us in Establishment Clause purgatory.’’ 

Another peculiarity with the Establishment Clause besides its 

absolute confusion, I think that would be admitted by all parties, 

that makes Section 1983 and 1988 inappropriate is the exception 

to the normal rules of standing. In every other area of law, a plaintiff must experience a direct and concrete injury. But in Establishment Clause cases, Federal courts have relaxed these requirements 

and carved out exceptions to the normal standing rules. In most 

lower courts, a plaintiff can bring an Establishment Clause challenge simply because the litigant claims that he or she is offended 

by some imagery, words, or alleged action. This exception to the 

general rules of standing have opened the floodgates of litigation. 

And so when you combine an exception to the rule that has 

opened the floodgates of litigation wherein you can simply file suit 

for a mere offense that something is an image, a word, or an action 

and at the same time the area of law is absolutely confusing and 

you can find decisions on both sides of the same exact decision—

take Good Friday. There are courts going both ways. It makes no 

sense to have Section 1983 and 1988 punish government officials 

who are not Justices of the United States Supreme Court. 

I urge this Committee to pass S. 3696. Thank you for allowing 

me to speak. 

[The prepared statement of Mr. Staver appears as a submission 

for the record.] 

Chairman BROWNBACK. Thank you very much. That was a very 

good, very concise set of thoughts. I look forward to the dialogue 

and the interaction in the Committee as we analyze some of that. 

Professor Rogers? 

STATEMENT OF MELISSA ROGERS, VISITING PROFESSOR OF 

RELIGION AND PUBLIC POLICY, WAKE FOREST UNIVERSITY 

DIVINITY SCHOOL, WINSTON–SALEM, NORTH CAROLINA 

Ms. ROGERS. Good afternoon, Mr. Chairman, and thank you for 

holding this hearing and for inviting me to participate in it. I appreciate that. 

At the outset, I just want to make a couple of quick comments. 

As I have listened to the rhetoric surrounding this bill—the debate 

about it and the bill that was proposed in the House—it seems to 

me that one could get a false impression from some of this rhetoric. 

13

Some of the rhetoric seems to suggest that the First Amendment 

requires religion to be stripped out of the public square, and that 

is just wrong. The First Amendment prohibits the Government 

from promoting or endorsing religion, but it protects the rights of 

individuals and groups to advance their faith in American public 

life. 

And, of course, we only need to look all around us in Washington, 

D.C., to see evidence that the First Amendment protects those 

rights. If we look at the National Mall, for instance, there have 

been Promisekeeper rallies on the Mall. The Pope has held Mass 

on the Mall. We have Million Man Marches on the Mall. Here in 

Congress today, religious groups will be on the Hill to talk about 

issues as different as the minimum wage, State tax repeal, Internet 

gambling, marriage issues, Middle East policy, and the genocide in 

the Sudan, which I know is an issue you have worked on very 

hard, Senator. 

So these are issues where the First Amendment protects the 

right of individuals to bring their faith into the public square, and 

quite properly so. There is no sense from the First Amendment 

that religion has to be purged from the public square or cleansed, 

and those are verbs that I have heard quite often used. 

Similarly, in the White House, the President often makes reference to his faith and how it shaped his life, and that is all quite 

proper. Religious groups are invited to the White House to talk 

about issues or to celebrate Passover or Christmas or another religious ceremony. 

And then if we go across the river to Arlington Cemetery and the 

gravestones there, we have to think about the fact that these are 

people who have made the ultimate sacrifice and that there are religious symbols, if the family wishes, on those gravesites, whether 

they are the Star of David or the Cross or some other religious 

symbol. That is quite appropriate. And I would reject any suggestion that those are under any kind of threat by the First Amendment. They are not. That is protected religious expression, and 

properly so. 

So I think it is very important for us to remember in this discussion that the First Amendment protects the rights of individuals 

and groups to advance their faith in the public square, and those 

are just a few of the ways that are clearly protected by the First 

Amendment today, and properly so. 

Looking at this legislation today, I think that the concern that 

has been mentioned thus far is that the Establishment Clause is 

singled out by this legislation. It is the defining characteristic. If 

you look at it, it is quite striking because the bill does not talk 

about all constitutional claims or even all church-state claims. It 

singles out the Establishment Clause. And like Marc Stern has 

mentioned, I have searched for legitimate explanations of that, but 

it seems that the explanation that I am gathering is that some 

don’t like some of the Establishment Clause principles or the way 

they have been applied by the Supreme Court. And I would suggest 

that that is a disturbing and dangerous basis for Congressional action. 

As Senator Feingold said earlier, what right tomorrow will be 

made a second-class citizen because some do not like the principles 

14

that the Supreme Court has articulated or the way that they have 

been applied? That is a dangerous precedent to set. 

Some have tried to suggest that the Establishment Clause is 

uniquely confusing or unpredictable or unstable. I think that is just 

not true. There are many parts of the Establishment Clause that 

are exceedingly clear that would be affected by this bill. 

For example, it has already been mentioned that the Supreme 

Court has said that one of the clearest commands of the Establishment clause is that the Government may not prefer one faith over 

another faith. In other words, there is a requirement under the Establishment Clause that the Government treat all faiths equally, 

and that is a bedrock principle. But this bill would disfavor claims 

that involve Government discrimination against certain faiths. 

Some of the cases that involve this kind of discrimination have 

already been mentioned, and I talk about some others in my testimony at greater length. I have mentioned a case that involved an 

incident where a public school teacher was saying how bad Mormonism was in front of a Mormon student. There have been allegations in a case out of Delaware that the public schools have favored 

Christianity in a variety of ways, with teachers saying that there 

is only one true religion in this public school and teachers giving 

special privileges for students who go to Bible Club. 

Marc Stern already mentioned a case out of Ann Arbor, Michigan, that was troubling where the school hosted a panel on homosexuality and religion, but the school only invited clergy leaders 

who believed that homosexuality and the Bible were compatible. 

When a student tried to invite a clergy person with a different view 

who believed that the Bible and homosexuality are not compatible, 

the school refused. So the student sued and won in that Establishment Clause lawsuit. The court found that the principal effect of 

the school’s action was to suggest a preference for a particular religious view, and that violates the Establishment Clause. Well, this 

bill would disfavor and discourage these kinds of claims. I would 

submit, however, that none of these claims should be disfavored by 

the law. 

And, finally, I would like to mention there is often also the suggestion that the Establishment Clause—or the Supreme Court’s interpretation of it reflects some kind of hostility to faith. That is not 

what the Establishment Clause says. It is not how the Supreme 

Court has interpreted it. One of the principles of the Establishment 

Clause is that the Government should not promote religion. It is 

not the Government’s business to promote religion. It is the business of citizens and religious groups. And, indeed, when the Government promotes religion, it harms not only religious liberty but 

also religion; not only minority faiths that are not favored, but also 

the majority faith that is favored by the Government. 

And here I want to quote a Baptist pastor from the 1800s, John 

Leland, who said, ‘‘Experience, the best teacher, has informed us 

that the fondness in magistrates to foster Christianity has done it 

more harm than all the persecutions ever did.’’ 

I think that it teaches us today that we should be very careful 

about trying to discourage or disfavor lawsuits that would allow 

the Government to promote symbols of faith, particularly one symVerDate 0ct 09 2002 13:24 Jan 17, 2007 Jkt 031491 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31491.TXT SJUD4 PsN: CMORC
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bol of faith over another, but to promote religion generally is also 

a problem under the Establishment Clause. 

For example, I as a Christian hold a deep reverence for the 

Cross. I do not want the Government to be involved in promoting 

the Cross and the Gospel. That is my job as a Christian. That is 

not the Government’s job. And I am very fearful that the day the 

Government gets its hands on the Cross is the day that the Cross 

is used as a means to a political end. I do not want the Government to begin to co-opt religious symbols. That is a very scary prospect. 

So, in my opinion, this bill is very disturbing. I think it ought 

to disturb Christians when the Government tries to co-opt our religious symbols. I think this bill is disturbing because of the dangerous precedent it will set in picking and choosing among constitutional rights, some for favor, some for disfavor. And I think it 

will discourage compliance with parts of the Constitution and harm 

religious liberty. 

So for these and other reasons, I would respectfully urge the 

Committee, to reject the bill. 

[The prepared statement of Ms. Rogers appears as a submission 

for the record.] 

Chairman BROWNBACK. Thank you for your testimony. Our final 

witness today will be Shannon Woodruff to testify. Thank you for 

joining us. 

STATEMENT OF SHANNON D. WOODRUFF, SENIOR COUNSEL, 

AMERICAN CENTER FOR LAW AND JUSTICE, WASHINGTON, 

D.C. 

Ms. WOODRUFF. Thank you. Good afternoon. I appreciate your allowing me to come and express the views of the American Center 

for Law and Justice in support of this law. 

I want to start by addressing one of the statements made by Senator Feingold, his concern about this bill putting a finger on the 

scales of justice. I would suggest that, in the absence of this removal of attorney’s fees, the ACLU will have no reason to remove 

its fists from the same scales of justice. 

While Section 1988 was enacted for the very laudable purpose of 

making sure that poor plaintiffs were able to protect their basic 

civil rights, it has had the unintended effect of financing a fierce 

campaign by a few advocacy groups, a campaign of intimidation 

against any and all religious expression, acknowledgment, and accommodation in the public square. The threat of costly litigation 

has put Government officials into a sort of secular straitjacket 

where they actually become predisposed toward religious discrimination rather than accommodation in order to protect their limited 

budgets. 

This chilling effect is felt on two levels. At the local level, it encourages plaintiffs to bring lawsuits that are not well grounded in 

the law. It also causes the Government officials to surrender to demands that might not be constitutionally required. Second, on a 

national level, it spreads a wave of fear when these large attorney’s 

fees awards come down that creates a backlash against free speech 

and free exercise rights. The Government officials are taking a calculated risk that it actually might be safer to suppress this reliVerDate 0ct 09 2002 13:24 Jan 17, 2007 Jkt 031491 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31491.TXT SJUD4 PsN: CMORC
16

gious expression from a liability standpoint than accidentally allowing too much and draw the attention of these eager plaintiffs. 

The chilling effect at both levels is unacceptable. By eliminating 

taxpayer dollars from the equation, this law would remove the financial incentives for these overly zealous plaintiffs to challenge 

permissible religious expression. 

I just want to touch on the confused state of the Establishment 

Clause, although I think Mr. Staver did a good job of that. But that 

certainly is fueling this campaign, in addition to these large attorney’s fees awards that the ACLU uses to basically bear some defendants into submission. 

Nowhere is this problem more evident than in the Ten Commandments cases that were discussed in McCreary and Van Orden

last summer. In each case, the vote was 5–4. Seven Justices issued 

a total of ten opinions and in neither case applied the same legal 

analysis. One commentator declared it as ‘‘adding mud to murky 

water.’’ And so that confusion at the Supreme Court is only magnified when you look at the lower courts. 

This indecision can only be described as an analytical schizophrenia, and so plaintiffs will use this legal uncertainty to threaten 

local governments with hundreds and thousands of dollars of attorney’s fees unless they stop whatever the activity is that is offending 

them. Even where a claim borders on frivolous, the fear factor can 

force a government, a local government, into settlement, not based 

on the merits but just on the fear of those attorney’s fees. 

Under those circumstances, it is both counterintuitive and counterproductive to award attorney’s fees to the prevailing party. 

Where Supreme Court Justices cannot consistently discern the parameters of the Establishment Clause, it is important that local 

government officials are given at least a small margin of error 

when they attempt to do the same. 

Fee awards in these cases can be devastating, especially when 

we are dealing with small towns and school boards. The recent 

high-profile case in Dover, Pennsylvania, illustrates this. The court 

ordered the school board to pay over $2 million in attorney’s fees 

for including an arguably constitutional disclaimer in its evolution 

teaching. The ACLU reduced that $2 million fee to $1 million when 

the school board agreed not to appeal this case. The ACLU is quick 

to use this award to continue its campaign of intimidation, stating, 

and I quote, ‘‘The $2 million was a very conservative number, so 

they got a terrific deal. The next school district isn’t going to get 

the same break that Dover did.’’ 

San Diego paid the ACLU $950,000 for leasing land to the Boy 

Scouts. Great Falls, South Carolina, a small town, was sued, and 

the fees totaled more than a quarter of the town’s annual administrative budget. 

And I think it is important to recognize that the ACLU is not 

only challenging Government religious expression. It is challenging 

any case where the Government even allows private religious expression. And I think some of the comments today have steered it 

to appear as pure Government action, and that is not the case. 

A lot of times, municipalities will just fold immediately. They will 

not even defend the expression at the district court level. The city 

council in Duluth, Minnesota, agreed to remove a 40-year-old Ten 

17

Commandments monument after the local newspaper warned readers that standing up to the ACLU could cost up to $90,000. So the 

constitutionality of that monument was never litigated, but the 

ACLU was able to use the settlement to pressure other municipalities. 

I think it was Professor Rogers who referred to the need for—

or maybe it was Senator Feingold, that Rule 11 will prevent these 

frivolous claims. Well, the fact of the matter is that most of these 

lawsuits don’t ever get into a courtroom because of this pressure 

and this immense fear. 

This law would not deprive any rights; rather, it is based on the 

inherent difference between the Establishment Clause and traditional civil rights cases. The reason the Establishment Clause can 

be singled out in this manner is because there is abuse that is not 

present in other civil rights cases, and this inherent difference I 

think eliminates any concern about a domino effect. 

There is a qualitative difference, for example, between the individual rights protected by the Free Speech, Free Exercise Clauses, 

the Fourth Amendment Search and Seizure Clause, or the right to 

vote, and a declaratory judgment that some county’s Christmas display does not have enough reindeer next to the Baby Jesus. 

These are not twin guarantees, as Senator Feingold suggested. 

They are both important, but they are not the same. This law will 

not affect the prosecution of legitimate Establishment Clause 

claims. The fact of the matter is these claims are not being brought 

by impoverished plaintiffs. There are plenty of organizations with 

resources to help any plaintiff who seeks to enforce the Establishment Clause. The current situation is actually frustrating the proper enforcement of the Establishment Clause. 

The ACLU or other organizations are not never going to turn 

down a valid Establishment Clause case. The hope is that they 

will, however, be a little bit more judicious in their selection of 

those cases. 

Litigation under the current system has truly transformed the 

Establishment Clause into a very real and complex obstacle for 

many Americans to exercise their First Amendment freedoms. It 

has also forced many local and State governments to sever their 

ties with America’s rich religious traditions. Although 1988 was designed to protect the little guy and help the little guy, it is being 

used by the big guys to actually strap local governments and with 

the threat of litigation silence them. This law is necessary to end 

this abuse. 

Thank you. 

[The prepared statement of Ms. Woodruff appears as a submission for the record.] 

Chairman BROWNBACK. Thank you. I appreciate it. I appreciate 

all the testimony of the witnesses, and in case you are wondering 

the motivation for introducing the bill itself, I put it forward—it is 

something—we are all products somewhat of our own past and our 

background, I guess—as a small town lawyer representing a couple 

of small towns. And I would see—I did not see these when I was 

practicing there, but I have read enough of them when groups come 

forward, and it typically is the ACLU. There are other groups, but 

it is typically the ACLU that comes up to a small town with a limVerDate 0ct 09 2002 13:24 Jan 17, 2007 Jkt 031491 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31491.TXT SJUD4 PsN: CMORC
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ited budget and not a large staff at all, and they say, We don’t like 

this particular item that has some Establishment Clause feature to 

it, and then the threat is always—and what the city council members are always asking about, What are the attorney’s fees in this 

case? And it is a bludgeon. It is blackmail from any sort of free discussion of, well, maybe we should take that off because it does not 

reflect what the citizens here have. Or others say, well, no, we 

should not do that because we are not trying to put our hands on 

the cross, I guess, as Professor Rogers is asking if that is the purpose. It is not the purpose of doing this. It is simply to allow there 

to be a fair discussion and it not being decided by the threat of 

legal fees. It should be decided by courts and not by a threat of 

legal fees. And that is why this is being put forward. That is why 

I put forward this bill. 

I would like to know, Mr. Lloyd, going to some specific questions, 

you said that there are a number of examples of where local units 

of the American Legion are being threatened with legal fees if they 

do not—or a number of examples of local suits. Could you cite some 

of those? Or perhaps they are in your written testimony, but do you 

know of some that are current situations where people are being 

threatened with legal fees? 

Mr. LLOYD. The threat that was absolute as in the Mount 

Soledad litigation to save the Mount Soledad Veterans’ Memorial 

as it is, where it is. The ‘‘as it is’’ includes a cross. That is part 

of the integrity of the entire memorial, and we are opposed to desecration by amputation because it happens to be a symbol not only 

of sacrifice but to have a religious aspect as well. The original 

plaintiffs in that case, as I said, were Phil Thalheimer, who is Jewish; the president of San Diegans for Mount Soledad; Dr. John 

Steele, a Navy pilot, a medical officer later; and the sons of the person, the contractor who actually built it. And they were plaintiffs, 

and they were threatened. And those letters are in the record of 

the Fourth District Court of Appeals at this time. 

Chairman BROWNBACK. Do you have other cases? That one is a 

well-known case. Are there others that you hear about from American Legion groups or other local units of government across the 

country? Mr. Lloyd. What I hear is obvious because I am lawyer 

for them. And, by the way, I am a pro bono lawyer for the American Legion. I don’t have to be bribed into doing the right thing. 

We have to advise and I have to advise the American Legion that 

when we go into a case, if we intervene as a party to fully participate—and I would hope—you mentioned your background as a municipal attorney. They are not experts on constitutional law, the 

Establishment Clause. Chairman Brownback. I certainly was not. 

I want to enter that for the record. 

Mr. LLOYD. Well, they have to either go out and hire attorneys, 

or you send in somebody whose whole life is litigating constitutional issues against somebody who knows all about contracts in 

the municipal sector, and then they end up looking at all these attorney fees. 

I have to advise the American Legion—and I do—if we go in and 

intervene in the case and fully participate and bring the degree of 

expertise that we can to the case, you can end up paying the 

ACLU’s attorney fees. 

19

We have not gone in. We are an amicus curiae, a friend of the 

court, in the Soledad case. We are an amicus curiae in the Mojave 

Desert case, the Mojave Desert World War I Veteran’s Memorial

case. We would like to be participating fully. Our First Amendment 

rights are being throttled because we cannot get in front of those 

courts because of that risk. 

And I would say to you, in regard to that, in the L.A. County 

Seal case where you had this display, nobody got involved in that 

case because the county settled rather than face the risk of the imposition of these fees. They are spending $1 million to change their 

seal, fearful that a court would award even more in light of what 

happened in San Diego. 

In Redlands City Council, very similar to the examples you were 

giving, all five council people said, ‘‘We don’t want to change our 

seal, but we are being advised by our pro bono counsel that we 

could end up paying their fees. We cannot do that. We need the 

money for civil services.’’ They cannot afford to change it. They are 

calling in everybody who has a badge in their town, and they are 

drilling holes through the cross on the badges of police and fire and 

inspectors. 

I suggest to you that is obscene that we have elected bodies so 

fearful of these attorney fees that they would drill holes through 

the badges in order to satisfy the whims, the constitutional whims, 

of the ACLU with one threat: ‘‘You will pay our attorney fees.’’ I 

am on a memorial honor detail team, and I think of Attorney Rogers’ statement. She rejects the notion there is a threat. Really? I 

am on an honor guard team of Riverside National Cemetery. It is 

the largest one in the country in terms of space, over 80,000 graves 

there with crosses and Stars of David and other religious symbols 

that are the choice of the family. I suggest to you, Senator, if it is 

unconstitutional to have a religious symbol on Federal property, 

which is what the ACLU says and asserts, you cannot have somebody make a choice to do it. But beyond that, these symbols are 

not limited to what is on gravestones. At Riverside National Cemetery is the United States National POW–MIA Memorial, done by 

artist Lee Millett, a Vietnam veteran—and, by the way, Vietnam 

era. He is a Vietnam vet of a recondo unit. His father was a Medal 

of Honor recipient—is a Medal of Honor recipient. He designed that 

statue that is there. It is absolutely magnificent. But he also inscribed a prayer in it. That is a target. Almost every one of our veteran cemeteries also has symbols that are not on gravesites but in 

the park itself, in the cemetery itself. They are all at risk. 

And who is to say that those who hate America are not going to 

bring these suits? And I heard the objection, oh, this is McCarthyism. That is absolute nonsense. There is nothing in your bill 

that would stop anybody from filing a suit. They just are not going 

to get attorney fees for it. And we should— 

Chairman BROWNBACK. Let me— 

Mr. STERN. Senator, could I respond— 

Ms. WOODRUFF. Senator, could I— 

Chairman BROWNBACK. I knew we were going to get this way. I 

will give you a chance to respond. I want to ask a couple of questions here, and then I would be happy to have you respond. Really, 

I want to look at this as much as we can as a legal issue that obviVerDate 0ct 09 2002 13:24 Jan 17, 2007 Jkt 031491 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31491.TXT SJUD4 PsN: CMORC
20

ously everybody looks at and has deep concerns of how in careens 

out of control. I think that is most people’s concerns here. But I 

want to look at it as a narrower legal issue. And, Mr. Staver, if I 

could ask you along— 

Mr. LLOYD. Senator, with all respect, with all the excited utterances, I did want to talk about the Mojave Desert case. 

Chairman BROWNBACK. We will hit that at another point, maybe. 

I want to get narrowed in on some of these. 

Mr. Staver, you have litigated these sorts of cases before. I hear 

the claim that this is going to hurt bringing of these sorts of cases 

or it is going to limit this constitutional right by removing the legal 

fees as provided for in Section 1988. Why is injunctive relief, declaratory relief insufficient to bring these sort of cases? And I am 

going to direct the same question towards you on that, Mr. Stern. 

I believe you raised that issue. But why is this insufficient, injunctive or declaratory relief? 

Mr. STAVER. Mr. Chairman, I think that is a good question. It 

is not insufficient. It is totally sufficient for what is needed to remedy any constitutional violation under the Establishment Clause. 

Professor Rogers and Mr. Stern have raised issues, and they have 

mentioned rhetoric and putting aside the rhetoric. I think when 

you really do that, you look at this in history and the historical 

context and what is really being addressed here and what is not. 

From 1976 to the present is the only time in American history 

that we had Section 1988. That changed the American rule in allowing attorney’s fees and damages in these kinds of cases. So for 

two centuries of our history, we haven’t followed this fee-shifting 

provision. In fact, if you look back, when we look at the constitutional Establishment Clause cases that came from the 1940s and 

the 1960s, we did not have Section 1983. The Bible reading and 

prayer in school were litigated prior to Section 1983. 

When 1976 came and the 1988 statute was amended to allow—

and I said 1983. I should correct that to be 1988. When 1976 came 

and Section 1988 was amended to allow this fee-shifting statute, it 

was done coming out of the idea of the civil rights movement, and 

one of the things they wanted to do is to finance ill-financed plaintiffs, people who were discriminated against primarily because of 

their race or their gender, people who lost their jobs— 

Chairman BROWNBACK. Primarily civil rights cases. 

Mr. STAVER. Exactly. They lost their jobs because of the color of 

their skin or their gender. Obviously, they did not have the money 

to go out and hire an attorney to litigate that basic constitutional 

right, for which we passed three separate constitutional amendments to protect, and passed a number of strong pieces of legislation in the 1960s. 

But now the time has changed as it relates to this area in two 

specific respects. Number one, the rise of public interest law firms. 

There will not be one less suit brought that is legitimate if you 

take away this attorney-fee-shifting statute because you still have 

the ACLU, you still have other organizations, that are very wellfinanced public interest law firms that will bring the cases irrespective of whether there is a fee-shifting statute. 

One of the things that it will prohibit, however, is the intimidation threat that a Government official, who is simply trying to do 

21

his or her job, that is confused, as all of us are—and anyone who 

says they are not is either disingenuous, does not litigate, does not 

teach, or is dishonest in addressing what the Establishment Clause 

jurisdiction is today. But a Government official who is simply trying to do his or her job gets the threat of an attorney’s fee letter 

from the ACLU will back down from their activity, even though it 

is constitutional if litigated all the way up to the Supreme Court, 

simply because of the threat of attorney’s fees. So it will not stop 

the legitimate cases. Injunctive relief and declaratory relief are absolutely essential, but it will take away this attorney’s fee provision 

that I do not believe is appropriate under these circumstances in 

the Establishment Clause cases. 

Chairman BROWNBACK. Mr. Stern, he says it far better than I, 

but that is my experience as a small town lawyer, that you get 

these sort of threats and the city council just says, ‘‘We do not have 

enough money to deal with this.’’ 

You know, as a lawyer, I get my back up and I say, well, no, let’s 

go fight it. Well, then they say, ‘‘How much is it going to cost for 

you and how much is it going to cost for those other guys?’’ And 

it quickly adds up, and they say, ‘‘We are just not interested in 

this.’’ It just happens all the time. 

I am wondering why the injunctive relief is not— injunctive and 

declaratory relief is not sufficient to keep these cases coming so 

people’s legitimate rights are protected. 

Mr. STERN. I want to go back to what I said. We need to keep 

clear in our heads that there is a difference between the remedies, 

whether monetary damages ought to be available, and the attorney’s fees issue. 

Take the Hansen case in Ann Arbor. It is a one-time, once-a-year 

diversity program. What was challenged was a particular configuration of a particular panel. By the time the case gets to court and 

can be litigated, there is more injunctive relief available. The issue 

is moot. The Diversity Day has occurred. There is no showing it is 

going to happen next year. You cannot get an injunction. 

You cannot get a declaratory judgment because in O’Shea v. 

Littleton, the Supreme Court said you cannot get a declaratory 

judgment for a completed constitutional violation for which there is 

no other remedy available. 

So in that sort of complete violation, in the case in Delaware— 

Chairman BROWNBACK. Let me get you to a sharper point. So 

you are saying in that type of case, the only tool that is of any use 

is the— 

Mr. STERN. Is damages or nominal damages. 

Chairman BROWNBACK. Is attorney’s fees. 

Mr. STERN. No. You cannot even get a declaration that the act 

was unconstitutional unless you are able to seek either real damages or nominal damages. If you have a complete constitutional violation for which you cannot—you can’t get an injunction because 

there is no likelihood of it recurring, the only way you are going 

to get a court to declare that the act was unconstitutional and to 

settle issues—because there are lots of issues that need to be settled—is by allowing nominal damages. That is what happened in 

the Hansen case. They sought and were awarded nominal damages. 

If there had been no nominal damages available, we would not 

22

have had a decision that says you cannot exclude conservative pastors from a panel on homosexuality. 

Chairman BROWNBACK. Let me turn the question this way. You 

are an accomplished lawyer, very accomplished individual and contributed a lot to this country and I appreciate it. Do you deny that 

this goes on, that attorney’s fees are used in these cases to threaten city councils? 

Mr. STERN. Certainly. There is no question it goes on. It goes on 

not only in the Establishment Clause area; it goes on in the free 

speech area. 

Let’s play out a case in which I was involved. A school board as 

a defense to plaintiffs urged that the Establishment Clause required it to act as it did. If the Establishment Clause is not clear 

when plaintiffs invoke it, it is not clear when defendants invoke it. 

The case involved whether a teacher could teach an after-school 

Bible Club in her own elementary school. The school district said 

you can teach in some other school, but not in your own building, 

because we think that second and third graders will not be able to 

tell the difference between you before 3 o’clock and after 3 o’clock. 

We think it said, if we were to allow you to do that, that would 

be an Establishment Clause violation. 

The teacher challenged the school board’s decision raising free 

speech and free exercise claims. She won that lawsuit in the 

Eighth Circuit. She is entitled to attorney’s fees under this bill. 

I told the school board—and I consulted with Professor Douglas 

Laycock, a well-known expert in the field. We both thought that 

the decision of the Eighth Circuit was flat-out wrong. We were prepared, pro bono, to carry the case to the Supreme Court. The school 

board voted not to carry the case to the Supreme Court because 

they would have to pay plaintiffs attorney’s fees if we were unsuccessful. 

Let’s play that out the next year. Ms. Wigg is in her classroom 

before 3 o’clock and says to the kids, ‘‘By the way, kids, you know, 

I have a Bible study class right after school, and we have a good 

time.’’ Parent brings a challenge saying that amounts to coercion. 

They allege that Ms. Wigg’s speech constituted an establishment of 

religion. Those plaintiffs cannot get attorney’s fees even if they win, 

even though it is the same facts, the same uncertainty, the same 

unclarity in the law. 

So if there is unclarity—and I can tell you, because I saw the letters in the 1980’s from the head of the American Center for Law 

and Justice when equal access for student clubs was very much up 

in the air, writing letters to school districts saying if you do not do 

what I want, I am going to sue—or I don’t remember if it was with 

ACLJ or another group at the time—and we will get attorney’s 

fees. 

So there is lots of this threatening stuff going on on both sides. 

Chairman BROWNBACK. And that is my exact point there. So why 

should you— 

Mr. STERN. So this does not— 

Chairman BROWNBACK. In American jurisprudence, we have not 

had—it does not seem to me that we have had the use of attorney’s 

fees being a threatening tool. It is really that there should be a relief granted— 

23

Mr. STERN. Fine. If you want to take—as I said in my testimony— 

Chairman BROWNBACK.—then attorney’s fees being the club 

and— 

Mr. STERN. Sure. 

Chairman BROWNBACK. You acknowledge, as others do, that that 

is the club that is being used here. 

Mr. STERN. Right. And if you want—and there are ways— 

Chairman BROWNBACK. If you can help us draft it better— 

Mr. STERN. I have only done it—I actually only threatened once, 

when a school superintendent ran for election against our lawsuit, 

so I figured it was fair enough to hit him with something back. 

But my problem is not that there is a club. I grant you that is 

a club. In some measure, that is a necessary club because, otherwise, you get people who think there is cost-free political advantage 

in violating known constitutal. Roy Moore was running for Governor on the back of his Ten Commandments display. No serious 

scholar thought that he was going to get away with a 5-ton Ten 

Commandments in the middle of Alabama Supreme Court building. 

The Supreme Court, right before it took the other two Ten Commandments cases, pointedly turned that one down. 

But we do not have to go there. My point is simply this: If there 

is a coercive effect—and there is—and if local government sometimes fail to assert plausible defenses because they are afraid of attorney’s fees, it is not only when I, representing plaintiffs, threaten 

to bring an Establishment Clause case and seek attorney’s fees. 

There are cases in which people are seeking access to the public 

schools, the school board is defending on the Establishment Clause. 

It is the same uncertainty and it is the same club. So if you are 

going to deal with that problem, deal with the problem of the club 

as a whole, but in ways that are neutral to the merits. 

Chairman BROWNBACK. That is my point. That is the point of 

this, is to take the club— 

Mr. STERN. No, but this bill does—it only solves—it takes away 

the club for me and it leaves the club in Ms. Woodruff’s hands. 

Chairman BROWNBACK. It does not leave it in her hands. 

Mr. STERN. Sure it does. She brings a free speech and free exercise claim. 

Chairman BROWNBACK. She cannot claim attorney’s fees in this. 

We take the attorney’s fees—we are saying that this is going to be 

the American jurisprudence system that— 

Mr. STERN. No, no, because it does not say— 

Chairman BROWNBACK. —the loser pays. 

Mr. STERN. When Ms. Woodruff sues the school district saying, 

‘‘I want access to the building,’’ she is claiming under the Free 

Speech and Free Exercise Clause. If she wins, she is entitled to attorney’s fees. Since the school board does not know if she is going 

to win or their Establishment Clause defense is going to prevail, 

you have got exactly the club problem you describe. They are afraid 

that if she wins, they will have to pay their own attorney and her 

attorney, because their defense is the Establishment Clause. 

If you flip the facts around and the plaintiff is invoking the Establishment Clause, in this bill there is no club. 

24

Chairman BROWNBACK. Would you support the bill if the club is 

taken from both sides then to your satisfaction? 

Mr. STERN. That would leave a level playing field. 

Chairman BROWNBACK. Would you support that sort of— 

Mr. STERN. I would have to think about it, but I think I could. 

Chairman BROWNBACK. Ms. Woodruff? 

Ms. WOODRUFF. I just want to respond. I think the club that is 

left in our hands in those equal access cases, the free speech cases, 

is, in fact, the Freedom of Speech and the Free Exercise Clause in 

the First Amendment. It is a different club. The only reason that 

we have engaged in an educational campaign to school districts, superintendents, city councils, is in specific response to the intimidation campaign of groups like the ACLU. You cannot deny that 

there is a qualitative difference between the affirmative civil rights 

for which 1988 was originally intended and Establishment Clause 

violations. There is a qualitative difference in the injury that is suffered in each of those, and that is what makes singling out the Establishment Clause legitimate. 

Ms. ROGERS. Senator Brownback, could I— 

Chairman BROWNBACK. Please, Ms. Rogers. 

Ms. ROGERS. Thank you so much. And let me thank you for your 

conducting this in such an open and probing manner. I really appreciate the way that you are digging into these issues and letting 

us all contribute to the conversation. 

There are a couple of things I want to get to really quickly. Mr. 

Lloyd talked about—and I think it is in his testimony—if the religious symbol is unconstitutional under the Establishment Clause 

because it is on Federal ground, as the ACLU otherwise insists, no 

person can choose to commit an unconstitutional act. It must be 

unconstitutional, I assume he is saying, if it is on the gravestone 

where the family has chosen it as it is when the Government erects 

a cross like Mount Soledad or some other case. And I would submit 

those cases are very different. 

Our constitutional rule is not that religious symbols cannot be in 

the public square. It is, ‘‘To whom is the religious symbol attributable or the religious expression attributable? ’’ And the Court has 

said there is a crucial difference between Government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Exercise and Free 

Speech Clauses protect. 

Now, that does not mean the place determines. It is who is doing 

the speaking. To whom is the speech attributable? The United 

States is not France. France in some respect cleanses the public 

schools of religious expression. We do not do that. We ask, ‘‘Is the 

religious attributable to an individual or is it attributable to the 

Government? ’’ And that is the dividing line, and that is where the 

ACLU is drawing the line in the case involving the grave markers 

where they are saying when the religious symbol is clearly attributable to the family on the gravestone, that is protected by the 

First Amendment. They take a different position when it has to do 

with the Government erecting a Government-sponsored cross in a 

cemetery and then doing it that way. 

So that is a very important distinction. It goes to the core of constitutional law, and we ought to recognize that. And the ACLU, I 

25

believe, on the House side wrote a letter saying that they are not 

threatening the markers on these gravestones. So that is very important. 

Then I will say that the club is not different than the ones Ms. 

Woodruff is talking about. It is pressure coming from different 

sides about different issues, but it is not different qualitatively. It 

is pressure to enforce constitutional rights. 

Chairman BROWNBACK. Ms. Rogers, could I address you on that 

point? Mr. Stern was kind enough to say obviously there is a club 

here and it is used. 

Ms. ROGERS. Right. 

Chairman BROWNBACK. Would you agree with that, that these 

attorney’s fees is a club and it is used often across the country? 

Ms. ROGERS. Yes, I mean, it is pressure brought from different 

sides on different issues, and it happens. 

Chairman BROWNBACK. And I would think you—I know you are 

teaching at the Divinity School, but you are a trained lawyer and 

you have worked these cases, too. 

Ms. ROGERS. Well, I would say I am not a litigator. I am an attorney. 

Chairman BROWNBACK. Okay. We do not usually set our system 

up such that the attorney’s fees are what you use for a club to get 

somebody to do something, because normally our system—the 

American system of legal decisions is you pay your legal fees, I pay 

my legal fees. So usually this is not a club in the American jurisprudence system. 

Ms. ROGERS. Well, each pays his own is the typical rule, but, of 

course, it is different under 1988. 

Chairman BROWNBACK. Yes. My point is here—and that is the 

only point with this that we are trying to get at, and if we have 

inartfully drafted this, submit suggestions to us, because I want to 

look at it and I want to consider what you have. 

Ms. ROGERS. Thank you. 

Chairman BROWNBACK. In an area where we have got now— we 

are at 40 years plus of litigating and trying to decide where we are 

on the Establishment Clause and what it means. This has been 

going on for some period of time, and this has been up and down 

to the Court a lot of times, and it is a confused—I think most people would say there is some confusion in this area of the law. And 

so if you are on that local level, the deciding factor should not be 

the club of attorney’s fees, and that is all we are trying to get at 

here. And if you agree with that point, I would appreciate you telling us how we ought to redraft this so that we make it balanced 

and the attorney’s fees is not the club, that it is actually somebody 

wanting to change this. 

Ms. ROGERS. Just two quick comments on that. What jumps out 

at you in the bill is the way that the Establishment Clause is selected out. Now, I am not saying what other arguments I would 

make about 1988 generally, but when you single out the Establishment Clause, it really raises questions. So I appreciate your openness to asking about, well, how can I be not selective, because this 

bill is quite selective. And that raises questions. 

Now, I would say there are areas of confusion with regard to the 

Establishment Clause. There are areas of great clarity and there 

26

are areas of confusion. But the Establishment Clause is not uniquely confused. You can ask law professors all across the country, and 

I have quotes in my testimony about scads of areas that are difficult and very challenging. The Establishment Clause is not 

unique in this respect. And so when you single it out, that tends 

to add more to the questions that are being raised here. 

Mr. STAVER. Mr. Chairman? 

Chairman BROWNBACK. Mr. Staver, please. 

Mr. STAVER. Section 1988 is never applied to the Federal Government. The Federal Government does not have the fee-shifting statute under Section 1988. No one would argue that the Federal Government has run roughshod over constitutional rights regarding 

the Establishment Clause, simply because there is no threat of an 

attorney’s fee. 

Chairman BROWNBACK. That is a good point. 

Mr. STAVER. You do not have damages in the Federal claims. Michael Newdow was not hesitant in any respect in bringing his challenge against the Pledge of Allegiance, and one of the entities he 

sued was at one time Congress. He would do that and the ACLU 

would do that and anyone else would do that if they felt an Establishment Clause violation occurred. In fact, the ACLU in Nebraska 

several years ago, a local affiliate of the ACLU brought suit against 

‘‘In God We Trust.’’ The fact is there is no rampant example within 

the Federal Government of running roughshod over constitutional 

rights in Establishment Clause cases simply because we have 

never from the history of our founding to the present had a feeshifting statute. All this particular statute does is put the State 

and local governments in the exact same position that the Federal 

Government is in. 

A couple of these things that I would ask of my colleagues here. 

I think Mr. Stern has tried to argue a difference between damages 

and fees, on the one hand, saying that since this does not have a 

damage provision, then in this illustration that he mentioned with 

regard to the Hansen case and the diversity program, then he 

would not be able to file suit, or if he did it would be mooted because it would be over and there would be no nominal damage. 

Well, first, there are exceptions to the mootness doctrine. There 

are a number of those kinds of exceptions. One of those is capable 

of repetition yet evading review. 

Secondly, the declaratory judgment is, as the Supreme Court 

said, a much lesser or less harsh remedy and, therefore, you 

should—in places where injunctive relief were not appropriate, you 

could still declare the constitutional rights. 

But, finally, I would throw out to my colleagues, would they be 

different, would they support this bill if this bill were to be amended to say that you could have no more than a nominal damage 

claim? And a nominal damage claim is $1 to $10. Would they all 

that? That would address their issue of mootness, and then we are 

back to the square one issue why we are here. Why should we have 

attorney’s fees as a club, which they have acknowledged it is, in a 

confusing area of law, which they acknowledge it to be, simply as 

a club? I don’t think that that is an appropriate way to use attorney’s fees. That is not the way 1988 was designed. 

Mr. STERN. Can I respond to that, Senator? 

27

Chairman BROWNBACK. I am going to go back to Mr. Lloyd, and 

then I will turn to you, Mr. Stern.

Mr. LLOYD. Thank you, Senator, and I want to reference specifically the comments made by Ms. Rogers and veterans’ memorials. 

She said the difference is that individuals can choose, family members can choose what they want, and that makes it constitutionally 

different. Senator, the land is Federal land. No private citizen has 

a right to say, ‘‘I want to erect this thing on Federal land.’’ But I 

think she is unaware of or ignoring the fact when she testifies if 

the Government puts it up, that is different. There are 9,000 

crosses at Normandy Beach—9,000 crosses, raises crosses, raised 

Stars of David, put up by the Government, our Government, maintained by France but it is considered American land. We put those 

up as a Nation to honor those who gave their lives. Those were not 

family decisions.

The other thing, the reference that the ACLU sent you a letter 

and said they will not sue. Who can put any credence on that? 

Maybe today they will not. Maybe if you pass your bill or your bill 

gets defeated, maybe they will.

I started to talk about the Mojave Desert case before I got so 

rudely interrupted. In Mojave Desert, who would have dreamed 

that the ACLU or anyone else would sue a World War I memorial 

11 miles off the road in the desert? It is two tubes strapped together on a rock outcrop in 1934 by veterans to honor veterans of 

World War I. Here, during the Clinton administration in 1994 or 

1995, it is incorporated in the Mojave Desert Preserve. At that time 

the Assistant Superintendent was a man named Frank Buono. He 

does not say a word. He does not say you cannot do this. He does 

not complain and say no, no. He is the Assistant Superintendent. 

He has got all the power in the world to stop it. He does not say 

a word.

The ACLU sues. It is out in the middle of the desert, no people, 

no press, no nothing. It is a stealth lawsuit. Nobody knows about 

it until the judge says destroy it and gives them $63,000 to destroy 

that veterans’ memorial.

You have to drive to it, Senator, to be offended by it. You better 

take water or you might not make it back. That is how far they 

would go.

So I put no credence whatsoever that we have a guarantee. Oh, 

they wrote a letter, ‘‘We won’t do it.’’ What stops the other people 

who hate America from doing it? And then a very crucial thing in 

this discussion, all we are talking about here is money for attorneys. Money for attorneys. These statutes were passed to benefit 

poor people. Who is the plaintiff in the Van Orden case out of 

Texas? A homeless lawyer. That ought to bring a tear to any American eye.

I do not think that was passed to benefit people like that. Who 

is the plaintiff who would destroy the Mojave Desert Veterans’ Memorial? Frank Buono—the same guy who was the Assistant Superintendent. He got his pension. He moved to Oregon, and he sues 

in California. And what is his theory, Senator? What is the injury? 

He might come back to visit and he might drive on that road and 

28

he might see the cross, and if he sees it, he would be offended by 

it.

In his testimony, Senator, he says he has no religious objection. 

He says he is Roman Catholic. He just objects on constitutional 

grounds.

Those kinds of suits may not result in fees under Rule 11. They 

are tearing it down. But look at the dimension that it puts us in. 

We cannot even go in as the American Legion to fight a case like 

that because we might end up having to pay that $63,000. And I 

think it is critical to understand—and every Senator should—we 

are not only talking about attorney fees. There are no attorney 

fees. I was an ACLU attorney. I know to a certainty under the 

rules of the ACLU every case is done by staff or a volunteer pro 

bono attorney, who are forbidden to receive fees. The clients have 

no fees. The ACLU has no fees. And this is pure profit.

In the Dover case that counsel represented, $2 million was 

awarded by a court in the Dover intelligent design case, even 

though the pro bono firm representing the ACLU said in court and 

publicly announced they were waiving all fees. The ACLU had no 

attorney fees.

So a benevolently developed statute to protect poor people is 

being used for pure profit, because there are no fees. And the other 

dimension to your fee provisions as they exist, Senator, is those 

fees are supposed to belong to the clients, not the attorneys. And 

there is case after case after case in which municipalities and other 

Government entities will settle cases—maybe you are familiar with 

this—and they will offer a settlement that says this include attorney fees, and that puts the attorney and the client in an adverse 

position, and the client then can say, ‘‘I will take that,’’ even 

though the attorney wants a lot more money. Every other statute 

that I know of, Senator, says ‘‘attorney fees incurred,’’ except this 

one. In this area, we will sue you, we will demand attorney fees, 

and we will get market rate even though we have none. And in 

California, it is $350 an hour, and the municipalities cannot pay 

that. It is a club, and I thank you for trying to remove it.

Chairman BROWNBACK. Well, I think this is trying to establish 

some fairness of the debate on the Establishment Clause in this 

country, which is a very long and deep one. We do it based upon 

what is actually there and not some club that I think seems to me 

to be an inappropriate tool to be able to use.

I want to wrap this hearing up. Can I give you a minute? We 

are going to be called over for a vote, Mr. Stern, and I want to be 

fair with your—

Mr. STERN. The ACLU actually once brought a lawsuit challenging a cross as a war memorial. The county’s defense was, if you 

allow them to take down the monument, they will take down the 

crosses and the Stars of David over individual graves. The ACLU 

said, ‘‘No, we are not going to do that.’’ So it is not a question of 

speculation. It is not merely relying on a letter to the House committee. They have actually litigated in that fashion.

Secondly, in my earier career, I spent a lot of time on civil rights. 

I can tell you that municipality after municipality changed their 

civil service rules because the extent of Title VII was unclear. They 

29

were afraid of paying attorney’s fees to organizations that were litigating on behalf of minorities. There were settlements that were 

coerced in exactly the same way that has been described. This is 

a problem of an attorney’s fee award. There are advantages. But 

the disadvantages are the ones you talked about.

Finally, Mr. Staver talks about nominal damages only. In the 

run of cases, that is probably an attractive idea. If you think, however, of the chaplains’ case here in D.C. where people are talking 

about thousands of dollars of salary and pension, you are cutting 

them off. In the Municipal Army case, which has got a new name, 

where there were real solicitations lost. If you limit people to nominal damages in Establishment Clause cases, you are harming those 

plaintiffs.

And, finally, I come back to Wynne, a case brought by a private 

attorney, not by the ACLU, who said the only reason he could do 

it was because he hoped he would get attorney’s fees. That sort of 

case, which is a clear violation of the Constitution, no uncertainty 

there whatsoever, would be cut off this way. If you are going to do 

it, at least do it so that it is across the board. When an Establishment Clause issue is fairly in the case, nobody gets attorney’s fees.

Ms. ROGERS. Mr. Chairman?

Chairman BROWNBACK. And I hope you will work with us then 

in looking at how you would suggest that to be written so that we 

could have a situation where you actually had the cases discussed 

and decided and local communities making decisions based on 

merit and not on the threat of attorney’s fees. That is what we are 

trying to get at with this particular bill.

It would be my hope at the end of the day we might get crossaisle support that a lot of people would look at that and say, you 

know, this is such a tough, contentious area of law, neither side 

should have attorney’s fees clubs, and this should be litigated by 

the courts. And let’s have it dealt with there, but let’s not throw 

it out at the very earliest stages just because a community is 

scared of the attorney’s fees. On such an important, key public policy debate and confused area of the law, that seems to me to just 

be fundamentally fair.

We will keep the record open for 7 days—Ms. Rogers, if you have 

just one minute, I will take a minute; otherwise, I need to—

Ms. ROGERS. Yes, sure. Thank you so much. I just want to underscore that I think the award of attorney’s fees can be helpful in 

many situations, for example, on RLUIPA, the Religious Land Use 

and Institutionalized Persons Act, the Free Exercise Act that you 

worked on in 2000, that allows reasonable attorney fees to be 

awarded to prevailing parties. So we need to be very careful about 

this. I think we need to be very evenhanded at least, and also very 

careful.

Chairman BROWNBACK. I hope you can help us with that in that 

process, too.

The record will remain open 7 days. I ask unanimous consent 

that a series of letters supporting the bill be entered into the 

record, and they will be.

I want to thank the panelists and those in attendance. The hearing is adjourned.

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[Whereupon, at 4:02 p.m., the Committee was adjourned.]

[Questions and answers and submissions for the record follow.]

[Additional material is being retained in the Committee files.]

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Æ


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