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PUBLIC EXPRESSION OF RELIGION ACT OF 2005

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

H.R. 2679

JUNE 22, 2006

Serial No. 109–118

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

STEVE KING, Iowa 

TOM FEENEY, Florida 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

CHRIS VAN HOLLEN, Maryland

PAUL B. TAYLOR, Chief Counsel 

E. STEWART JEFFRIES, Counsel 

HILARY FUNK, Counsel 

KIMBERLY BETZ, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

JUNE 22, 2006

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 2

The Honorable John N. Hostettler, a Representative in Congress from the 

State of Indiana, and Member, Subcommittee on the Constitution ................ 4

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Member, Subcommittee on the Constitution .......................... 7

WITNESSES 

Mr. Rees Lloyd, Commander, District 21, The American Legion 

Oral Testimony ..................................................................................................... 10

Prepared Statement ............................................................................................. 12

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

Dean, Liberty University School of Law 

Oral Testimony ..................................................................................................... 32

Prepared Statement ............................................................................................. 35

Mr. Marc D. Stern, General Counsel, American Jewish Congress 

Oral Testimony ..................................................................................................... 72

Prepared Statement ............................................................................................. 74

Professor Patrick Garry, Associate Professor of Law, University of South 

Dakota School of Law 

Oral Testimony ..................................................................................................... 97

Prepared Statement ............................................................................................. 99

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Member, Subcommittee on 

the Constitution ................................................................................................... 180

Additional Information submitted by Mathew D. Staver, Founder and Chairman, Liberty Counsel, Interim Dean, Liberty University School of Law ........ 182

Additional Information submitted by Marc D. Stern, General Counsel, American Jewish Congress ........................................................................................... 183

Prepared Statement of the Alliance Defense Fund concerning H.R. 2679, 

the ‘‘Public Expression of Religion Act of 2005’’ ................................................ 184

Prepared Statement of Steven W. Fitschen, President, The National Legal 

Foundation ............................................................................................................ 198

Letters for the hearing recorded inserted by the Honorable Robert C. Scott: 

Letter from Ruth Flower, Legislative Director, Friends Committee on 

National Legislation, to The Honorable Steve Chabot, dated June 19, 

2006 ................................................................................................................ 225

Letter from Wade Henderson, Executive Director, and Nancy Zirkin, 

Deputy Director, Leadership Conference on Civil Rights, to Members 

of the Judiciary Committee, dated June 21, 2006 ...................................... 226

Letter from Caroline Fredrickson, Director, American Civil Liberties 

Union dated June 22, 2006 .......................................................................... 227

Page

IV

Letters for the hearing recorded inserted by the Honorable Robert C. Scott—

Continued

Letter from the American Civil Liberties Union, et. al., dated June 22, 

2006 ................................................................................................................ 230

Letter from the Reverend Barry W. Lynn, Executive Director, Americans 

United for Separation of Church and State, to Chairman Chabot and 

Ranking Member Nadler, dated June 22, 2006 .......................................... 232

(1)

PUBLIC EXPRESSION OF

RELIGION ACT OF 2005

THURSDAY, JUNE 22, 2006

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:03 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Steve 

Chabot (Chairman of the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. 

This is the Judiciary Committee’s Subcommittee on the Constitution. I am Steve Chabot, the Chairman. I want to thank everyone 

for being here this morning. 

The House Constitution Subcommittee convenes today to consider H.R. 2679, the Public Expression of Religion Act, commonly 

known as PERA, which was introduced by the distinguished gentleman from Indiana, Congressman John Hostettler, who is with us 

here this morning. 

PERA amends 42 U.S.C. Sections 1983 and 1988 to prevent the 

use of the legal system in a manner that extorts money from State 

and local governments and inhibits their constitutional actions. 

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

to sue State and local governments for alleged constitutional violations of their individual rights. Federal statute 42 U.S.C. 1988 is 

the Federal fee-shifting statute that allows prevailing plaintiffs in 

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

defendant. And the defendant in that case would generally be a 

governmental entity. 

Consequently, under 42 U.S.C. 1983, parties can sue State and 

local governments claiming their individual rights were violated 

and demand attorney’s fees in the case under 42 U.S.C. 1988 if 

they prevail at any stage of judicial review. 

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

local officials alleging that they have violated the Establishment 

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

Most localities do not have the money to pay for not only their own, 

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

judgment. And Establishment Clause case law is oftentimes so confusing and the outcome in these cases so unpredictable that it is 

virtually impossible for a locality to foresee the outcome in any 

given case. 

2

PERA addresses this problem by amending 42 U.S.C. 1983 to 

permit only injunctive relief in cases alleging violations of the Establishment Clause. PERA also amends 42 U.S.C. 1988 to disallow 

the award of attorney’s fees to prevailing parties in cases alleging 

violations of the Establishment Clause. 

PERA will level the playing field against groups such as the 

ACLU who have won millions of dollars in attorney’s fees while extorting State and local governments into suppressing the religious 

speech and free exercise of religion of private individuals, for example, tearing down veterans’ memorials that happen to have religious symbols on them, removing the Ten Commandments from 

public buildings, booting the Boy Scouts off public property, or blotting out crosses from official county seals. This happened in California. 

Again, I would like to thank our witnesses for being here today. 

And we will get to you very soon. 

And that is the balance of my statement. I would now yield to 

the gentleman from New York, Mr. Nadler, for the purpose of making an opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, I want to join you in welcoming our witnesses 

today. 

I think we can agree that the topic of today’s hearing is of monumental importance, albeit for differing reasons. The good news is 

that this legislation is not yet another attempt at stripping the 

Federal courts of the jurisdiction to hear cases if some in Congress 

think they won’t like the answer the Federal courts might give. 

The bad news is that today for the first time since the enactment 

of Section 1983 in 1871 we are considering legislation that would 

single out a particular group of individuals whose first amendment 

rights have been violated by the Federal Government or by the government and deny them remedies available to everyone else under 

Section 1983. These are people whose rights have been violated by 

the Government or by someone acting under color of law and who 

have been able to prove that in a court of law. By denying them 

the normal relief of monetary damages and the ability to petition 

for attorney’s fees we are not just denying them their day in court, 

we are telling Government officials everywhere that Congress 

thinks it is okay if they violate people’s religious liberty. 

Because remember, anyone who loses a case—when the Government loses a case here, the court will have found that they violated 

someone’s religious liberty. It is especially galling after we have 

just completed most of the work on the reauthorization of the Voting Rights Act, although I must say it seems that some of the majority party aren’t too happy with that, in which we enhanced the 

attorney’s fees, enhanced the attorney’s fees provision in that bill 

that this Committee reported by adding a right to be awarded the 

cost of expert witnesses. 

As this Committee stated in its report, ‘‘The Committee received 

substantial testimony indicating that much of the burden associated with either proving or defending a Section 2 vote dilution 

claim is established by information that only an expert can prepare. In harmonizing the Voting Rights Act of 1965 with other Federal civil rights laws, the Committee also seeks to ensure that 

3

those minority voters who have been victimized by continued acts 

of discrimination are made whole.’’

I would warn my colleagues that starting down this path of denying proven victims of discrimination by the Government—that is 

what we are talking about, Section 1983 where someone acting 

under color of law, a Government official, violated someone’s constitutional rights, in this case, someone’s constitutional rights 

under the first amendment liberty provisions—starting down this 

path will only lead to depriving other unpopular groups of their 

civil rights remedies. 

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

lawyers stirring up trouble was the common language of the militant segregationists, those who said that if it weren’t for those 

unelected judges and those ACLU lawyers and those carpetbaggers 

coming down here, no one would be questioning our Jim Crow practices that our local Black people are so happy with. 

It is distressing and sadly ironic that today the same language 

is being used to gut the nation’s oldest and most durable civil 

rights law. It is all reminiscent of Governor Wallace’s infamous 

1963 inaugural speech in which he said, ‘‘From this day, from this 

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

we will tolerate their boot in our face no longer. And let those certain judges put that in their opium pipes of power and smoke it 

for what it is worth.’’ I think the governor would feel right at home 

on this Committee today, as would some of the majority witnesses. 

Or the notorious southern manifesto signed by Members of both 

houses of this Congress in defiance of the Supreme Court’s school 

desegregation decisions: ‘‘We regard the decisions of the Supreme 

Court in the school case as a clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaking to legislate in 

derogation of the authority of Congress and to encroach upon the 

reserved rights of the States and of the people.’’

Does this sound familiar? This is the rhetoric we are hearing on 

this bill. It is the rhetoric we are hearing on the other court-stripping legislation. 

I raise this not to suggest that any Members of this house are 

segregationists. Far from it. I do recall the overheated rhetoric of 

a half-century ago to urge caution. Unpopular minorities—and 

those are the people in these cases, people defending the religious 

liberty of unpopular minorities and decisions defending the rights 

of unpopular minorities against the will of the majority have always inflamed passions. People have always questioned our system 

of checks and balances and especially the role of the independent 

judiciary. 

Recourse to an independent judiciary is the bulwark of our liberties. We recognize—and remember, if you look at the 1936 Stalinist Constitution of the Soviet Union, it looked wonderful, right 

to free expression, right to freedom of speech, freedom of the press, 

freedom of religious and anti-religious propaganda, as they quaintly put it. The only problem was there was no real recourse. There 

was no way to enforce those rights. 

If you sought to enforce the rights, you got shot. In this country, 

you go to court until now. If this bill passes or the other courtVerDate 0ct 09 2002 11:38 Aug 22, 2006 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 G:\WORK\CONST\062206\28385.000 HJUD1 PsN: 28385
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stripping bills, we limit the right of people to go to court to defend 

their rights. 

We recognize people’s liberties. We recognize that the independent judiciary is the bulwark of our liberties by allowing people 

to go to court and force the Government to respect their rights. 

We recognize this by allowing them to receive damages where 

the Government has done them. We recognize this by ensuring just 

as we have done with the Voting Rights Act that people who can 

prove their rights have been violated can get attorney’s fees paid 

so that people with valid claims will be able to go to court and not 

be damaged—will be able to go to court, number one and number 

two, not be damaged by huge attorney’s fees. 

I would remind my friends—and let me say the Chairman talks 

about localities being hurt by attorney’s fees. They are only getting 

hurt by attorney’s fees if they are judged wrong by the courts, if 

they damaged individual rights of somebody. And it is better that 

the Government be damaged by attorney’s fees when the Government has violated someone’s rights than that the victim of the deprivation of those rights, the victim of unconstitutional practices be 

damaged. 

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

religious symbols in public places. This legislation applies to any 

violation of the Establishment Clause. This would include forced 

prayer, not a voluntary prayer, but forced prayer. And if Government forcing your child to say a prayer of another faith is not the 

establishment of religion then the phrase has no meaning. 

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

long been known as the silly season. We all understand that. But 

get an earmark for a bridge or something. Leave the first amendment and our civil rights laws out of it. 

Thank you. I yield back. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from Indiana, Mr. Hostettler, the chief proponent 

of the bill, is recognized for the purpose of making an opening 

statement. 

Mr. HOSTETTLER. I thank the Chairman. And I want to thank 

you for calling this important hearing today as the legislature acts 

in our constitutionally independent capacity. 

I first introduced the Public Expression of Religion Act in the 

105th Congress a few years before this election year after I realized 

that the imposition of attorney’s fees in these kinds of cases were 

jeopardizing our constituents’ constitutional rights. An example of 

this was in 1993 when the Indiana Civil Liberties Union, which is 

affiliated with the American Civil Liberties Union, mailed a letter 

to all the public educators in Indiana. And I think we have some 

excerpts from that. And I will read. 

First of all, the heading is from the Indiana Civil Liberties 

Union. And the footing states that the Indiana Civil Liberties 

Union is an affiliate of the American Civil Liberties Union. The letter states, in part, this: ‘‘Dear Educator, the Indiana Civil Liberties 

Union has received several calls recently from school boards 

throughout the State concerning prayer at graduation. The Supreme Court has held clearly and explicitly that prayer at graduaVerDate 0ct 09 2002 11:38 Aug 22, 2006 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 G:\WORK\CONST\062206\28385.000 HJUD1 PsN: 28385
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tion is ‘forbidden by the Establishment Clause of the first amendment.’ And there are no exceptions or loopholes.’’

‘‘No member of the school board, no teacher, no principal, no invited clergy and student speaker may take the podium and invite 

the audience to pray. If you decide to hold graduation prayer anyway as a matter of principle, four things will probably happen. 

One, we will sue both the school corporation and any individuals 

who approved or authorized graduation prayers. Two, we will win. 

The Supreme Court has already decided the issue. 

‘‘Three, you will pay your own and our attorney’s fees, an amount 

that could run as high as a quarter of a million dollars. Your insurance will not cover it because it is a deliberate violation of law. So 

the money will come directly from property taxes.’’ The letter ends 

this way, ironically enough. ‘‘The ICLU does not enjoy litigation. 

We and you have better things to do with our time. You have better things to do with your money.’’

These threats to teachers who are highly unlikely to be able to 

pay their own attorney’s fees, let alone the exorbitant attorney’s 

fees of the ICLU, make it very likely that educators would capitulate to the ICLU before even checking to make sure the ICLU has 

their facts right, which in one particular case they didn’t. What 

makes this even more difficult for States and localities is that the 

jurisprudence in Establishment Clause cases is about as clear as 

mud. Different districts and even the Supreme Court itself flipflops on issues. 

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

Commandments decisions on the same day with a different decision 

in each. In the Van Orden case, the court applied the Marsh test 

of historical perspective to determine that the Ten Commandments 

in a public venue was constitutional. While the McCrary case used 

the Lemon test to determine that the Ten Commandments in a 

public venue was unconstitutional, clear as mud. 

Our constituents who are being threatened with these lawsuits 

know that even if they are right they will have to pay their own 

attorney’s fees to take the gamble that the court will muddle 

through one more time the jurisprudential mess of the Establishment Clause and come out on their side. If a court chooses to use 

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

Lemon test, they might lose. It is a toss-up. 

Unfortunately, many of our constituents do not have the means 

or time to set aside a small fortune every year to defend their constitutional rights against these liberal organizations. Nor do they 

look kindly on the fact that their constitutional rights have become 

subject to the whims, literally, of unelected judges. But that issue 

is for another hearing. 

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

in court. So they capitulate to these organizations and their often 

questionable pronouncement of what is or is not constitutional. The 

majority of the cases the ACLU and its affiliates represent are facilitated by staff attorneys or through pro bono work. So any attorney’s fees awarded to them is icing on the cake. It is a win-win situation for them right now. 

On the other hand, cities and States have to consider where the 

attorney’s fees would come from if they lose their case and have to 

6

pay the ACLU. Where would the money come from, from the taxpayers? States and localities have limited resources with which to 

fight court battles. Thus, another reason that they are capitulating 

before they even go to court. 

This was the case recently with the Los Angeles County seal. 

The ACLU threatened to sue Los Angeles County if they did not 

remove the small cross from the county seal. The previous seal is 

available along with the new seal. 

The county was forced to choose between paying to change the 

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

fees to the ACLU. In the end, the L.A. county commissioners in a 

three to two vote decided to ignore the will of the people of Los Angeles County and pay to change the seal instead of paying to go to 

court. They had been advised by their attorneys that if they lost 

in court they would not only have to change the seal, but they 

would additionally have to pay attorney’s fees. 

Mr. Chairman, opposition to PERA is based in no small part on 

the reality of the Establishment Clause jurisprudence as it has 

come today. I mentioned the two cases earlier, and I point out that 

as that case was without—Mr. Chairman, I ask for an additional 

minute. 

Mr. CHABOT. Without objection, the gentleman is granted an additional minute. 

Mr. HOSTETTLER. —that as that case was decided before the most 

recent changes to the Supreme Court, namely the addition of Chief 

Justice Roberts and Justice Alito that, in fact, in one particular 

case the majority found that the public display of the Ten Commandments was constitutional. Whereas in the other case, Justice 

Breyer changed his vote, so to speak, and, therefore, as a result of 

one person’s vote, the case in McCrary County was found to be unconstitutional. 

But given the fact that Justice Alito has taken Sandra Day 

O’Connor’s place, whose position in both cases, in my humble opinion, was on the wrong side, the simple fact of the matter is we will 

not need Stephen Breyer’s opinion in the future. 

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

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

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

extort money either via settlements or attorney’s fees. I yield back 

the balance of my time. 

Mr. CHABOT. I would ask unanimous consent that the gentleman 

be given an additional minute and the gentleman would yield to 

me for a moment. 

Mr. HOSTETTLER. Yes, I will yield to the gentleman. 

Mr. CHABOT. Could we have that pulled up again, what we had 

there before that showed the seal of California? If I am not mistaken, Mr. Hostettler, the one on the left there was the old version. 

And it is pretty hard to see the cross on there, but there is a statue 

of, I believe, a pagan goddess there in the middle. 

Mr. HOSTETTLER. Yes. 

Mr. CHABOT. About at her arm level there, the cross to the right 

there, that is the cross, I believe. It is pretty hard to see on there. 

Mr. HOSTETTLER. Yes, sir. 

7

Mr. CHABOT. About, I think I understand it is maybe one-sixth 

the size of the cow there at the bottom. The cross is removed there 

on the right. But the pagan goddess on there, that was okay, but 

the cross was removed? 

Mr. HOSTETTLER. It is my understanding that the pagan goddess 

was not the subject of the ACLU’s concern, that the cross was the 

subject of the concern. L.A. County changed the goddess in hopes 

of fending off a future potential lawsuit. 

Mr. CHABOT. Okay. 

Mr. HOSTETTLER. That is my understanding. 

Mr. CHABOT. Very good. Well, thank you very much, Mr. 

Hostettler. The gentleman’s time has expired. 

The gentleman from Virginia is recognized for the purpose of 

making an opening—if he would like to make an opening statement, or not, either way. 

Mr. SCOTT. Sure. Thank you, Mr. Chairman. 

Mr. Chairman, it is just nice to see the representative of the 

American Legion here because the last few years we have seen our 

budget deteriorate about $9 trillion, and they have been leaving 

veterans behind. As a matter of fact, just recently we have slashed 

$6 billion from what is needed to meet current veterans’ healthcare needs over the next 5 years. 

We have prevented 1 million new veterans from enrolling in V.A. 

medical care. We have doubled and tripled health-care fees for 4 

million military retirees under 65. More than 30,000 new veterans 

are waiting for their first appointment at the V.A., double the number from a year ago. We have doubled the co-pays for prescriptive 

drugs. We have opposed ending the tax on military families pensions and concurrent receipts for disabled veterans. 

As a matter of fact, Mr. Chairman, when we talk about what we 

are doing with our budget, this chart shows that all our money is 

going to interest on the national debt with a little bit going to education, a little bit going to homeland security. And what falls off 

the truck, the veterans get. 

But the veterans who happen to be multi-millionaires, however, 

Mr. Chairman, we are going to help this afternoon because those 

with States over $1 million we are going to eliminate most of the 

estate tax on those multi-million dollar estates. So when they die 

with millions of dollars—if they die with millions of dollars, we will 

be right there to help them out. 

So, Mr. Chairman, I would hope that if we are going to be patriotic that we would fulfill our responsibilities to our veterans, not 

have a three-quarters of a trillion dollar tax cut going only to dead 

multi-millionaires. And I say dead multi-millionaires because there 

is no tax for the first $1 million of the estate under the former law. 

And now it is up to about $2 million per person. That is $4 million 

per couple tax-free. But we are going to make sure those with even 

more than that get tax relief to the tune of about three-quarters 

of a trillion dollars and fully phased in over 10 years. 

Mr. Chairman, this particular bill—it is interesting if you violate 

the Establishment Clause, no disincentive. But if you violate the 

free speech part, free exercise part of the same amendment, then 

I guess you can get attorney’s fees. This is a picking and choosing 

which constitutional rights we are going to actually enforce. It is 

8

a real bad precedent. And I would hope we would defeat the bill 

if it ever comes up. 

I yield back. 

Mr. CHABOT. The gentleman yields back. 

The Chair would just note that the purpose of this hearing is on 

PERA, not necessarily veterans’ benefits. But since the gentleman 

from Virginia has mentioned the national debt, for example, I 

would note that I came here in 1994. And prior to that when the 

gentleman’s party was in control for 40 years we didn’t have a balanced budget. And that is when much of the debt was run up. 

And at least for 4 or 5 of the years we had a balanced budget 

since the current majority party is in control now. I very much 

would like to get back to a balanced budget. 

And let me just conclude with saying that when the gentleman 

talks about the Federal inheritance tax or the death tax, I would 

just say that philosophically I believe that when the Government 

can take away 55 percent of what a person has when they die I 

think that is confiscatory and immoral. 

And I think that we ought not tax people when they die. And 

this is money that they paid taxes on throughout their life. But 

that is not the purpose of this hearing. But the gentleman brings 

it up, so there are two sides to many things. 

And I will—well, the gentleman from New York, unless the gentleman from——

Mr. NADLER. I will just point out—I don’t want to get into an 

overlong discussion of economics at the moment, although it does 

implicate the question of why this question is a veterans issue 

when there are so many other issues that really affect veterans as 

opposed to this nonsense. 

But I would simply point out given what the Chairman said that 

when Ronald Reagan took office, the national debt of the United 

States accumulated from George Washington through Jimmy 

Carter was $794 billion. Twelve years later when George Bush the 

first left office, the national debt was $4.3 trillion. There is almost 

quintupled. It started declining when Clinton was in office. It is 

now greatly accelerating again. 

And one other thing, the stuff I hear when our party was in control of Congress, et cetera, et cetera, don’t forget that during that 

period that Republican presidents for most of the time, not to mention a Republican Senate. This is fortunately or unfortunately not 

a parliamentary system with a unicameral legislature. So you can’t 

just look at the House, as much as I wish maybe we should. 

I yield back. 

Mr. CHABOT. We could carry on this all day. 

But the gentleman, Mr. Lloyd here, who I think is a veteran, obviously will, I am sure, in his testimony discuss why, in fact, there 

are veterans who care about this particular issue. 

I would like to introduce our witness panel at this, at this time, 

if we could. 

Our first witness today is Rees Lloyd. Mr. Lloyd is a long-time 

civil and workers’ rights attorney in California and a Vietnam-era 

veteran of the U.S. Army who currently serves as commander-elect 

of district 21 of the American Legion Department of California, 

9

which embraces some 23 posts and over 6,000 members in Riverside, California. 

Mr. Lloyd was once a staff attorney with the ACLU of Southern 

California, which recognized him for ‘‘pioneering efforts in the area 

of workers’ rights,’’ and a pro bono attorney for the late Cezar Chavez, founder and president of the United Farm Workers of America. 

Mr. Lloyd currently serves as special counsel for civil rights to 

California department commander Wayne Parrish and as Director 

of the Defense of Veterans Memorials project of the Department of 

California. 

Excuse me. 

He was named American Legionnaire of the Year 2004–2005 for 

the 40,000-member fifth area of the Department of California. Mr. 

Lloyd has served as a principle spokesman for the American Legion 

regarding Establishment Clause litigation and the Public Expression of Religion Act. 

And we welcome you here, Mr. Lloyd. And I am going to introduce the rest of the panel here before we get to you. 

Our second witness is Mathew Staver. 

I am pronouncing that right, I assume? 

Mr. Staver serves as the Interim Dean of Liberty University 

School of Law and is the founder and chairman of Liberty Council, 

a national non-profit litigation, education and policy organization. 

He has written 10 books, most of which focus on constitutional law 

and has published hundreds of articles on constitutional law. He 

has presented many continuing legal education credit courses to attorneys, law professors and judges regarding the 42 U.S.C Sections 

1983 and 1988. 

Mr. Staver has argued in numerous State and Federal courts 

across the country and has more than 110 published legal court 

opinions. Mr. Staver has written numerous briefs before the United 

States Supreme Court and has argued twice before the high court 

as lead counsel. 

We welcome you here, Mr. Staver. 

Our third witness is Marc Stern, Assistant Executive Director of 

the American Jewish Congress and co-director of its commission on 

law and social action. Mr. Stern was consulted widely by numerous 

Jewish and non-Jewish organizations interested in maintaining the 

separation of church and State and is interviewed often by the 

broadcast and print media. 

Mr. Stern has been named one of the 40 to 50 most influential 

leaders of the American-Jewish community. Mr. Stern has taken 

the lead role in coalitions assembled by the American-Jewish Congress, which have produced guidelines utilized by the Clinton administration to clarify contentious church-State issues in American 

society today. These guidelines include Religion in the Public 

Schools, Religion in the Federal Workplace and Public Schools and 

Religious Communities, a first amendment Guide. Mr. Stern has 

written numerous briefs, monographs, legislative testimony and articles on a variety of civil rights and civil liberties issues. 

And we welcome you here, Mr. Stern. 

Our fourth and final witness will be Professor Patrick Garry. 

Professor Garry is an associate professor of law at the University 

of South Dakota School of Law and a visiting professor at George 

10

Washington School of Law. Patrick Garry has a J.D. with honors 

and Ph.D. in constitutional history from the University of Minnesota. 

Before joining the faculty at the University of South Dakota 

School of Law, Professor Garry was awarded a research fellowship 

at the Freedom Forum Media Studies Center and was a visiting 

scholar at Columbia University Law School. He also served as an 

adjunct professor at St. John’s University and a research project 

adviser at the Center for Media Law and Ethics in the University 

of Minnesota. 

Patrick Garry is a contributor to the Oxford Champion to the 

United States Supreme Court and has published seven books. His 

first book was included in the distinguished studies in American 

legal and constitutional history. Professor Garry’s study of Justice 

Oliver Wendell Holmes appears in Great Justices of the U.S. Supreme Court, and his scholarly articles have been published in a 

variety of journals. 

We very much welcome our entire panel here this morning. Obviously we have a very distinguished panel. 

And it is the practice of the Committee to swear in all witnesses 

appearing before it. So if you would, if you would all please stand 

and raise your right hand. 

Do you swear that in the testimony you are about to give you 

will tell the truth, the whole truth and nothing but the truth, so 

help you, God? 

All witnesses have indicated in the affirmative. 

And, without objection, all Members will have 5 legislative days 

within which to submit additional materials for the record. 

[The prepared statement of Mr. Conyers is located in the Appendix.] 

Mr. CHABOT. And before we get started, you are probably familiar with the 5-minute rule. But each of you will have 5 minutes to 

testify. We actually have a lighting system which when you begin 

there will be a green light. That will be on for 4 minutes. The yellow light will be on for 1 minute, letting you know it is time to kind 

of wrap up. And the red light will come on, at which time we hope 

you will be finished. If not, we will give you a little bit of leeway. 

But we hope to not have to gavel anybody down. 

We also apply the 5-minute rule to ourselves here. So we are 

pretty careful about that to be fair. 

So if there are no questions, Mr. Lloyd, you are recognized for 

5 minutes. 

TESTIMONY OF REES LLOYD, COMMANDER, DISTRICT 21,

THE AMERICAN LEGION 

Mr. LLOYD. Thank you very much——

Mr. CHABOT. If you could turn the light on. You just push the—

or turn the mike on. Yes, I am sorry. And if you will pull the box 

kind of toward you there. We will begin your time here at that 

time. 

Mr. LLOYD. Thank you very much, Mr. Chairman and Members 

of the Committee. And it is indeed a great honor for me to be able 

to address you today on this important legislation on behalf of the 

American Legion, the largest wartime veterans organization in the 

11

world, with 2.7 million members, and indeed on behalf of the entire 

Legion family of Legion, auxiliary and sons of the American Legion, 

with some 4 million members. 

I can assure you that we regard this as an extremely serious 

matter. Our veterans memorials all over the nation are threatened 

by lawsuits. And we are being precluded from effectively exercising 

our rights to petition before the courts and before our elected bodies at the local level because of the threat of attorney fees being 

imposed, including on us if we have the audacity to intervene in 

such cases and fight the ACLU and others in protection of our veterans memorials because we run the risk then of having those fees 

shifted to us. And I would ask that that be considered carefully by 

the Congress when it considers civil rights. 

I was very, very interested in the comments of Mr. Nadler, and 

I thank him for referencing the civil rights legislation, civil rights 

of our country. I have been involved as a civil rights attorney my 

entire professional life. It was my honor, among other things, to 

represent Cezar Chavez and the farm workers movement for almost 20 years until the day of that great man’s death. And in that 

time, I would say, Mr. Nadler, we fought those battles because they 

needed to be fought——

Mr. NADLER. Nadler. 

Mr. LLOYD. Nadler—not because we were getting paid. Because 

when I worked for him, I got all the frijoles and tortillas I could 

eat, and that was it. We fought them because they needed to be 

fought, and they were right. 

And today we are told that the ACLU and others will not fight 

the battles for what they believe to be the civil rights under the 

Establishment Clause unless they are enriched at taxpayer expense. And I object to that notion. 

Mr. NADLER. I ask that that be stricken from the record. 

Mr. CHABOT. Let us let the——

Mr. NADLER. It is an unfair aspersion about the ACLU. 

Mr. CHABOT. The witness is entitled to his opinion. And if it is 

his opinion, it is his opinion. 

Mr. NADLER. The fact that the ACLU has said it will not fight 

unless it gets paid. It is not true. 

Mr. LLOYD. It is true that the opponents of this bill have stated 

that if you remove the attorney fee provision these suits will not 

be brought. In fact, it is in the testimony that is written here 

today. So it is true. 

And I don’t believe the ACLU has ever intended, or anybody in 

it ever believed, that that was the basis. Certainly, when I was an 

ACLU attorney we never did that. As a civil rights attorney, as a 

member, former attorney for the ACLU and for Cezar, I am appalled that this is what would happen to the civil rights movement, 

the civil rights effort, to have to depend on attorney fees. 

We are trying to defend our veterans memorials in California 

where we had the precedent of the Mojave Desert Veterans Memorial across a rock outcrop built in 1934 by vets to honor vets. When 

it was incorporated into the Mojave Desert Preserve, a lawsuit is 

filed. It is 11 miles off the highway. It is in the middle of the 

desert. You have to drive to it to be offended by it. A judge says 

tear it down and gave the ACLU $63,000. 

12

In the Mount Soledad case that many people in the country are 

aware of at this time—that cross was there since 1913. Fifty years 

ago they established the memorial. Today a Federal judge has ordered it be destroyed by August 1 or we will fine you $5,000 a day. 

We can’t enter that case as parties and intervene because the Legion will then risk having to pay the ACLU’s attorney fees. And 

that shouldn’t be. 

It is not a one-way—it is a two—it is not a two-way street. It is 

one-way. If the ACLU prevails, it gets its funds. If it loses, it 

doesn’t have to pay them because there is a different standard. And 

the different standard is you have to show that it was frivolous. It 

is not at all the prevailing party gets their attorney fees. 

And with reference to the remarks of Representative Scott, which 

we appreciate very much, we are dealing with those issues and 

other legislative matters. But I will say there is an easy way to 

find the money to pay the veterans benefits that are due. Stop the 

judges from giving millions to the ACLU and others to sue our veterans memorials and give us the ability to fight back on a level 

playing field where we don’t risk having those fees imposed on us 

and where we can appeal to local elected bodies who will listen to 

us who today don’t because their minds are made up. They say we 

have no choice, including in Los Angeles, including at Redlands 

where they are drilling holes through the crosses on the badges because they can’t afford to make the changes that are due. 

Gentlemen, I don’t think Congress ever intended the 1976—not 

the 1871 Civil Rights Act, but the 1976 Civil Rights Attorney Fees 

Act, 42 U.S.C. 1988 to be used in this way. The country got along 

under the Civil Rights Act since 1871 until 1976 without an attorney fee provision, and we can if we eliminate it today. 

And I thank you. I am out of time. 

[The prepared statement of Mr. Lloyd follows:]

PREPARED STATEMENT OF REES LLOYD

Mr. Chairman and Honorable Members of the Subcommittee on the Constitution: 

It is my great honor to appear before you today to offer testimony in support of 

the passage of the Public Expression of Religion Act, HR. 2679, PERA, on behalf 

of The American Legion, the largest wartime veterans’ organization in the world 

with 2.7 million members. It is also poignant that I should appear before you on 

June 22, the anniversary of Congress’ recognition of the Pledge of Allegiance in 

1942, and the day on which in 1944 what has been described as the greatest social 

legislation of the 20th Century, the GI Bill, was signed into law. 

In testifying before you, I preface my remarks by stating that I do not appear before you as an inveterate hater of the American Civil Liberties Union (ACLU) or 

related organizations bringing Establishment Clause litigation and seeking and receiving taxpayer-paid attorney fees therefore, although I believe that PERA must 

be passed to stop the exploitation of the law for attorney fee profits in such cases. 

I have been a civil rights attorney for some twenty-five years. I was an ACLU 

of Southern California staff attorney for approximately two years immediately after 

graduating from law school and passing the California Bar, and had been on a fellowship with the ACLU while in law school. I have devoted my professional career 

to the defense of civil and workers rights. Among other things, I was for some twenty years, and until the day of his death and beyond, a volunteer attorney for the 

late Cesar Chavez, the founder and president of the United Farm Workers of America, AFL-CIO, whom we honor in California today for his great contributions to civil 

rights. Cesar Chavez was, indeed, a great American, he mentored me when I was 

an independent trucker engaged in a nationwide strike during the so-called Arab 

Oil Embargo, and it was Cesar Chavez who urged me to go to law school and his 

recommendation that secured my admission. It is a little known fact that Cesar 

Chavez was also a veteran, serving four years in the U.S. Navy when his country 

13

called. He was, in his humility and self-sacrifice, the greatest man I ever knew, or 

will know, and I will always walk in his shadow. 

I state this not for self-aggrandizement, but, rather, to indicate to you that I 

speak to you from the heart, and based on a lifelong commitment to the defense 

of civil rights, from participation in Resurrection City in the Poor People’s Campaign 

of Dr. Martin Luther King in 1968, to the present moment, in which I am privileged 

to participate in a great cause, the cause of veterans, the cause of the defense of 

American values by The American Legion Family of Legion, Auxiliary, and Sons of 

the American Legion, altogether involving some 4 million members. 

Neither The American Legion, nor I as its representative in these proceedings, believe that passage of PERA is a partisan issue, a conservative or liberal issue, a Republican or Democrat issue, or an ideological one. The American Legion believes it 

is an American issue, a civil rights issue that transcends all partisan, party, or ideological allegiances. 

PERA is narrowly drawn to impact only on Establishment Clause cases, and no 

other civil rights claims. Arguments have been raised that this, somehow, creates 

an Equal Protection violation. It is respectfully suggested that this is an argument 

without merit; the law makes distinctions in myriad instances, including as to what 

kind of civil wrongs can result in attorney fee transfers by court orders. Further, 

Establishment Clause cases are the only claims of which I am aware that are allowed to proceed without any showing that the plaintiff has suffered any economic, 

physical, or mental damage, or been deprived of the exercise of any right, but is 

merely offended at the sight of a symbol which has a religious aspect. In all other 

categories of claims of which I am aware, mere ‘‘taking offense’’ is not even cognizable for a claim or cause or action. Thus, the distinction made in PERA is a rational one, and preserves attorney fee transfers in cases in which an actual economic, physical, or mental injury, or deprivation of right, other than mere offense, 

is suffered. 

Concisely stated: The American Legion believes that passage of the Public Expression of Religion Act is essential for the protection of civil rights, for all Americans 

and not limited to special interests, and for the preservation of the purpose and integrity of the attorney fee provisions of the Civil Rights Act, 42 U.S.Code Section 

1988, the Equal Access to Justice Act (EAJA), and all other federal statutes which 

were benevolently intended to benefit the poor and advance civil rights, and are now 

resulting in the opposite; are resulting in unintended financial enrichment; and are 

trammeling and throttling the exercise of First Amendment rights to freedom of 

speech, to petition for redress of grievances to the judicial and legislative branches, 

In particular, but without limitation, The American Legion believes this reform 

legislation is absolutely necessary if we are to be able to preserve and protect our 

veterans memorials, and, indeed, all public displays of symbols of our American heritage which have a religious aspect, from litigative attacks under the Establishment 

of Religion Clause of the First Amendment by special interests, epitomized by, but 

not limited to, the ACLU, the primary source of such Establishment Clause litigation, and the primary recipient of literally millions of dollars of attorney fees from 

such litigatio—even though the ACLU in fact has no actual attorney fees. 

As a former ACLU attorney, I know to a certainty that the ACLU’s litigation is 

carried out by staff attorneys, or by pro bono attorneys who are in fact precluded 

from receiving fees under the ACLU’s own policies. Notwithstanding, the ACLU regularly seeks, and receives, attorney fees in Establishment Clause cases at market 

rate, usually $350 an hour in California. Although the courts know that ACLU clients in fact incur no attorney fee obligation, and that ACLU incurs no fee obligation 

to volunteer cooperating attorneys, as far as known, no judge has simply said ‘‘no’’ 

to ACLU attorney fee requests, even though there is no evidence that any attorney 

fees were incurred. Thus, benevolently intended fee provisions are being used as a 

bludgeon against public entities to surrender to ACLU’s demands, and to obtain 

profits in the millions. (See, examples cited below, and in American Legion Magazine reports submitted as Attachments hereto.) 

Further, it must be emphasized that there is nothing in the law today to bar declared enemies of America, including without limitation terrorists who we are 

warned are in fact in our midst, from following the precedents being set by the 

ACLU and others to bring lawsuits to destroy or desecrate our veterans memorials, 

or other public displays of symbols of our American history and heritage if they contain a religious aspect, and then to exploit federal law, including the Civil Rights 

Attorney Fees Act, 42 U.S. Code Section 1988, and related acts, including the Equal 

Access to Justice Act (EAJA), which also should be reformed, to demand that the 

courts award them taxpayer-paid attorney fees for such Establishment Clause litigation attacks. 

14

Frankly stated, if PERA is not passed, if EAJA and all other federal statutes 

which may provide attorney fees in Establishment Clause cases are not also reformed, there is nothing in the law to prevent such an abuse and exploitation by 

terrorists or their sympathizers. 

The American Legion urges this reality to be considered in acting on PERA. 

The threat of imposition of such fees is having other, and very real, consequences: 

Benevolently intended attorney fee statutes designed to advance First Amendment 

rights, including the right to petition for redress, are now being exploited for financial profit in Establishment Clause litigation, to effectively prevent The American 

Legion and others from meaningful participation in such Establishment Clause litigation in the exercise of the right to petition. Simply stated, as an attorney, acting 

under the Code of Professional Responsibility, I must advise The American Legion 

and others I represent based on what the law is, not what I would like it to be. 

Without PERA, I necessarily have to advise The American Legion that if the organization does seek to intervene in lawsuits against veterans memorials as a party, it 

risks having a court order it to pay the attorney fees of the ACLU. 

Thus, the very threat of imposition of attorney fees is having a chilling affect on 

the exercise of fundamental First Amendment rights. 

Further, the threat of imposition of attorney fees in Establishment Clause controversies is effectively depriving Americans of the right of speech and to petition 

elected bodies for redress because those elected bodies at the local level cannot in 

fact consider contrary views and deliberate because they so fear imposition of attorney fees in such matters by the courts that they believe they have no deliberative 

choice as they must protect taxpayer funds which are needed for essential local services. In short, their minds are made up before the first objection of a citizen is 

heard, nullifying effective exercise of the freedom of speech and to petition for redress before local elected bodies. 

Thus, the citizen’s right to be heard, and the very deliberative process of our representative democracy, are being distorted and denied by the threat of, and actual 

imposition of, attorney fees on taxpayers in Establishment Clause litigation. 

The threat of imposition of attorney fees is very real, and it manifestly is being 

used as a bludgeon by the ACLU and others to compel surrender to their demands 

to in effect secularly cleanse the public sphere, including at veterans memorials. 

Although most Americans remain unaware of it—and are outraged when they 

learn of it—Courts are awarding taxpayer-paid attorney fees to the ACLU and others literally in the millions of dollars annually, against towns, school boards, cities, 

counties, states, and the potential of imposition of such fees on The American Legion or others who would desire to intervene in such cases to participate fully in 

those judicial proceedings, as parties, to apprise the judiciary of their views on the 

importance of protecting our veterans memorials or other public display of symbols 

of our American heritage. 

Passage of PERA is essential as the very threat of imposition of attorney fee 

awards in Establishment Clause cases, including those at veterans memorials, has 

intimidated elected bodies into surrender to the demands of the ACLU and others 

to remove or destroy symbols of our American heritage if they have a religious aspect, rather than run the risk of imposition of often massive attorney fees on taxpayers, or upon intervening private parties, like The American Legion in defense 

of veterans memorials. 

All across the nation, lawsuits are being brought under the Establishment Clause 

to remove or destroy symbols of our American heritage from the public sphere if 

they have a religious aspect, principally the Christian Cross, but also the Star of 

David, both of which are present in the hundreds of thousands in our twenty-two 

National Cemeteries, from Arlington in the East to Riverside National Cemetery in 

California, and across the sea at American cemeteries in Europe, including Normandy Beach, where there are more than 9,000 raised Crosses and Stars of David. 

There are countless veterans memorials which have stood for years, decades, even 

longer, erected by grateful Americans in small towns, cities, counties, states, and 

considered by most Americans as sacred places as their manifest purpose is to 

honor, and call to the remembrance of succeeding generations, those Americans who 

served and sacrificed in defense of our American freedom. 

Today, all of these veterans’ memorials are threatened by dangerous precedents 

being set in Establishment Clause lawsuits brought by individuals and special interest organizations, epitomized by the ACLU, who are offended by veterans memorials 

because they contain a Cross or other religious symbol, or a prayer, as in the Mojave 

Desert Veterans Memorial case (Buono vs. Norton), and the Mt. Soledad National 

War Memorial litigation in San Diego, which has become a focus of national controversy in light of the fact that, on the one hand, a federal judge has ordered the 

City of San Diego to tear down the cross which has stood at the memorial for more 

15

than half a century or he will fine the taxpayers $5,000 a day; and, on the other 

hand, a California Superior Court Judge overturned a special election in which 76% 

per cent of the voters voted to transfer the Mt. Soledad National War Memorial to 

the federal government. The attorney for the plaintiff in the case, reportedly backed 

by the ACLU, has collected thousands of taxpayer-paid dollars in attorney fee 

awards in that case. 

In the Mojave Desert Case, the solitary cross, erected on a rock outcrop eleven 

miles off the road in the desert by veterans in 1934 to honor World War I veterans, 

has been declared to be an unconstitutional violation of the Establishment Clause 

because in 1994 it was incorporated into the Mojave Desert Preserve. Although Congress passed legislation sponsored by Rep. Jerry Lewis, my Representative in California, to transfer the one-acre Mojave Desert Veterans Memorial to private parties, 

veterans, in exchange for five acres of private land, the federal judge, on motion of 

the ACLU, nullified the act of Congress, finding its action violates the Establishment Clause, and ordered the Executive Branch to tear down the Cross. That case 

is on appeal. So far, the ACLU has reaped $63,000 in attorney fees to destroy that 

veterans’ memorial. 

These veterans’ memorials deserve to be defended, and The American Legion is 

ready and able to do so. But the threat of imposition of attorney fees creates a bar 

to intervention in these case with full party status not only against the public entities which cannot risk imposition of attorney fees, but private non-profit organizations like The American Legion which have fiduciary obligations to their members 

and cannot effectively exercise the right to petition for redress in Establishment 

Clause cases because of the risk that devastating attorney fees may be imposed. 

The enormity of the threat of imposition of fees by courts should not be discounted. For but a few examples:

• In its Establishment Clause lawsuit against San Diego to drive the Boy 

Scouts out of Balboa Park, the ACLU received some $950,000 in attorney fees 

when the City settled rather than risk even more attorney fees being awarded 

in the litigation.

• In the Ten Commandments Case in Alabama, the ACLU and sister organizations received $500,000 in attorney fees.

• In Washington State, the ACLU received $108,000 from the Portland School 

board in a case brought for an atheist to prevent the Boy Scouts from recruiting in the schools on non-class time.

• In Illinois, the ACLU brought suit against the Chicago Schools to drive out 

the Boy Scouts out of the schools, and the Department of Defense to drive 

the Boy Scouts off military bases as sponsored troops. The Chicago schools 

quickly kicked out the Boy Scouts and settled $90,000 on the ACLU to avoid 

even larger court-awarded fees. The DoD entered a partial settlement, and 

the case continued, resulting in a federal judge finding that the DoD aid to 

the Boy Scout Jamboree, supported by every U.S. President since its inception, is in fact a violation of the Establishment of Religion Clause. ACLU is 

seeking attorney fees under the Equal Access to Justice Act in that case.

• In Nebraska, a federal judge overturned a referendum in which 70% of the 

voters voted to define marriage as a union of a human male and female, and 

imposed attorney fees of some $156,000.

• In Los Angeles County, the Board of Supervisors voted 3-to-2 to remove a tiny 

cross from the County Seal when the ACLU threatened to sue over it (but 

not over the Roman Goddess Pomona whose figure dominated the Seal). The 

County will spend approximately $1 million to remove the cross from all flags, 

seals, badges, etc. The rationale for the three who voted to surrender to the 

ACLU: The threat of an even greater amount ordered in attorney fees to the 

ACLU if the County fought and lost.

• The City Council of Redlands voted, unwillingly, to remove the cross from its 

City Seal when the ACLU threatened lawsuit. The sole reason given for the 

vote: The fear of a court-awarded attorney fees to the ACLU being imposed 

on limited taxpayer-funds needed for city services. Redlands cannot afford to 

change all of the seals as L.A. County is doing. Therefore, among other 

things, Redlands is calling in all employees who have badges, police, fire, 

emergency services, et al., and drilling a hole through the Cross on the 

badges to comply with ACLU’s demands.

• In the Mojave Desert WWI Veterans Memorials case, the ACLU pleaded for 

fees under both the Civil Rights Act, 42 U.S.C. Section 1988, and EAJA, and 

ultimately received some $63,000 in attorney fees under the EAJA.

16

A recent case exemplifies, I believe, the abuse and exploitation of the Civil Rights 

Act attorney fee provisions for pure profit by the ACLU, and the ACLU’s use of the 

Civil Rights Act to terrorize local elected bodies. 

That case is the now famous ‘‘Dover Design Theory Case.’’ There, the ACLU sued 

the Dover school board after it voted to include teaching of the ‘‘design theory’’ along 

with Darwinian theory in science classes. The ACLU was represented by a cooperating, pro bono law firm. 

Whatever one thinks of the ‘‘design theory’’ or the merits of the case, the attorney 

fee outcome should be carefully considered. The judge ruled that the teaching of ‘‘design theory’’ violates the Establishment Clause. The court then awarded the ACLU 

$2 million in attorney fees to be paid by the school board from taxpayer-funds needed for the schools. 

The court imposed this massive attorney fee award on the taxpayers and schools 

even though the pro bono law firm representing the ACLU declared that in fact it 

waived all attorney fees. Thus, the $2 million is pure profit for the ACLU. 

The ACLU added to this set of facts the following: The ACLU announced to the 

media after its victory over the school board that it was only going to demand that 

the school board pay it $1 million instead of $2 million. The ACLU stated it was 

doing so because the school board members who had voted for the teaching of ‘‘design theory’’ had been removed from the school board in elections and replaced by 

school board members who agreed with the ACLU’s position. 

Thus, the ACLU announced it would not ‘‘punish’’ the school board by demanding 

the full $2 million. 

However, it publicly warned that it would not be so benevolent in the future if 

any other school board did not comply with ACLU’s demands. 

I respectfully suggest there could not be better evidence of the need for PERA, 

nor better evidence that the ACLU is exploiting the Civil Rights Act for profit and 

using its attorney fee provisions as a club to ‘‘punish,’’ in ACLU’s own words, elected 

local agencies, than the very public statements of the ACLU in the Dover Design 

Case. 

As one who was active in what was once called the Civil Rights Movement, and 

one who in that movement supported and fought for the attorney fee provisions of 

the Civil Rights Act and EAJA, and as a former ACLU attorney, I am personally 

appalled and ashamed at the ACLU’s disgraceful abuse of the Civil Rights Act for 

its own political and economic gain. People fought, and some died, in the civil rights 

movement for these laws to benefit the poor and make real the promise of our 

American freedoms. What is happening is shameful. 

Congress should end this abuse. 

The American Legion is strongly in support of passage of PERA, and similar reform of the EAJA and all federal fee-shifting statutes in Establishment Clause 

cases, as an absolutely necessary reform of the law to preserve and protect our civil 

and constitutional rights, and to protect the integrity of the Civil Rights Act, EAJA, 

and related acts. 

At the American Legion National Convention in 2004, more than 4,000 delegates 

voted unanimously for Resolution 326, Preservation of Mojave Desert Memorial, 

which I wrote and which calls on Congress to amend the Civil Rights Act, 42 USC 

Section 1988 to eliminate the authority of judges to award attorney fees to the 

ACLU, or anyone else, in Establishment Clause cases. (See, Attachment.) At that 

time, Past National Commander Thomas P. Cadmus of Michigan called on ‘‘all Legionnaires, and all Americans, to stand up to the ACLU and defend our American 

values.’’

At the American Legion National Convention in 2005, delegates unanimously 

voted to adopt Resolution 139, to amend the EAJA in the same way as the Civil 

Rights Act to eliminate the courts’ power to impose attorney fees in Establishment 

Clause cases when the federal entities are the defendants, as in the Boy Scouts 

Jamboree case. (See, Attachments.) 

American Legion National Commander Thomas Bock, the primary spokesman for 

The American Legion in all matters, including PERA, vowed upon his election at 

the 2005 National Convention that The American Legion would stand and fight to 

defend our veterans memorials, our American values generally, and to support passage of PERA against the terrorizing litigation attacks of the ACLU and others. 

In 2006, under National Commander Bock’s leadership, The American Legion 

published ‘‘In the Footsteps of the Founders,’’ explaining why PERA is needed. It 

was sent to all 15,000 American Legion Posts along with additional material on 

DVD. 

In his recent call for defense of the Mt. Soledad National War Memorial, Commander Bock stated: 

17

‘‘What is next? Will the ACLU target the 9,387 crosses and Stars of David honoring World War II heroes killed during the invasion of Normandy? The Public Expression of Religion Act, H.R. 2679, may be the only way to stop this assault.’’

The American Legion does mean to stand and fight to defend our veterans’ memorials against Establishment Clause litigation assaults. But we need a level playing 

field—and that means the end to one-sided risks of attorney fee awards to the 

ACLU, or others, but not against the ACLU or others, because, under decisional 

law, the fees do not go to the ‘‘prevailing party’’ because, when the ACLU loses, it 

is shielded from fee transfer unless it can be shown the suit was legally frivolous 

because the filing of a lawsuit against a governmental entity is itself a First Amendment right. 

With regard to Commander Bock’s reference to the American Cemetery at Normandy Beach, may I close with a personal observation which, I believe, reflects 

what is really at stake, and how much defense of veterans memorials means to us. 

I am proud to be a member of Memorial Honor Detail, Team 12, Riverside Post 

79, at Riverside National Cemetery, the home of the U.S. National Medal of Honor 

Memorial, and the U.S. National POW/MIA Memorial, the centerpiece of which is 

a dramatic sculpture of a prisoner of war by artist and Legionnaire Lewis Lee 

Millett, Jr., a veteran who waived the entire $100,000 artist’s commission so the 

funds could be used to complete the memorial surrounding the sculpture. 

We fear that that sculpture in the National POW/MIA Memorial may become a 

target of an Establishment Clause lawsuit, because artist, veteran, Legionaire Lee 

Millett, Jr., engraved the POW’s Prayer at the base: ‘‘I look not to the ground, for 

I have no shame. I look not to the horizon, for they never came. I look to God, I 

look to God . . .’’

There are more than 80,000 gravesites at Riverside National Cemetery now, almost all with a Cross or Star of David or other religious symbol. We fear for them, 

too. The ACLU has said it would not sue the grave markers because that is a matter of ‘‘family choice.’’ That, constitutionally, is utterly specious: 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. Further, who would have dreamed the ACLU would file a lawsuit 

against the solitary cross honoring WWI veterans in the middle of the desert to 

which one has to drive to be offended. 

MHD Team 12, Riverside Post 79, is the first volunteer team to perform more 

than 1,200 military honors services for our fallen comrades. 

The Captain and founder of Team 12 is Robert Castillo, who is a Native American 

who has served in many Legion offices in California and has led practically all 1,200 

MHD Team 12 services at RNC, carrying the American Flag to lead the processions. 

Robert Castillo, as a teenager, participated as a member of the United States 

Navy in the D-Day landing at Normandy Beach on June 6, 1944. He fought on both 

Omaha and Utah beaches. His ship was sunk. He was terribly wounded, and received a Purple Heart among other medals. 

On the anniversary of D-Day, June 6, 2006, Robert Castillo, who is affectionately 

known as ‘‘Uncle Bobby’’ by Legionnaires throughout California, led MHD Team 12 

through six military honors services, in heat that reached 100 degrees. He never 

wavered in those services; he has never wavered in service to America as a teenager 

on D-Day, nor any day since, as he continues to serve America in The American 

Legion. 

He asked me to convey to this Committee, and this Congress, his support for 

PERA, and his common-sense view which I believe reflects the view of almost all 

the 2.7 million members of The American Legion: 

‘‘How can they give our tax money to the ACLU to sue our veterans memorials? 

I don’t understand it. It’s wrong. They shouldn’t be allowed to do this. Are they 

going to sue our cemetery at Normandy Beach, and then take our money for doing 

it? We can’t let them do that. My buddies are buried there.’’

If you heed no other voice, I would appeal to you to hear the voice of Legionnaire 

Robert Castillo, and reform the law by passing PERA, and comparable reform of 

EAJA and all other federal fee statutes in Establishment Clause cases. Do not allow 

the law to be exploited for profit in attacks under the Establishment Clause against 

our veterans’ memorials and cemeteries. Give us the level playing field needed to 

allow us to defend the memorials, and gravesites, of our fallen American heroes. 

I thank you for allowing me to testify on behalf of The American Legion. 

18

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Mr. CHABOT. Thank you very much, Mr. Lloyd. 

Mr. Staver, you are recognized for 5 minutes. 

TESTIMONY OF MATHEW STAVER, FOUNDER AND CHAIRMAN, 

LIBERTY COUNSEL, INTERIM DEAN, LIBERTY UNIVERSITY 

SCHOOL OF LAW 

Mr. STAVER. Thank you, Mr. Chairman, Members of the Committee. Thank you for inviting me. 

Sections 1983 and 1988 are in derogation of the American rule. 

The American rule essentially says that each party bears his own 

cost for the cost of the litigation. These sections are particularly apVerDate 0ct 09 2002 11:38 Aug 22, 2006 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 G:\WORK\CONST\062206\28385.000 HJUD1 PsN: 28385

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ropos in the normal civil rights cases where plaintiffs are ill-financed and where the law has some relative predictability. 

However, in the Establishment Clause cases, many if not most 

of the plaintiffs today, based on the rise of public interest law 

firms, will finance the case by the public interest law firm and, 

therefore, there will be no opposition for these individuals to come 

to court if this Committee passes this particular bill. 

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

remain sharp disagreements among the justices of the United 

States Supreme Court over the meaning and the application of the 

Establishment Clause. In an area where the law is so conflicting 

and the court decisions are so confusing, supporting every conceivable position to the contrary, it makes little sense to award damages and attorney’s fees to plaintiffs with diametrically opposed positions on the same issue. 

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. While conflicting court 

opinions will inevitably 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 exactly opposite and irreconcilable results. One sad example involves New York City public school funding cases, which were litigated at an enormous expense. The same 

school district that paid huge attorney’s fees after losing its case 

at the United States Supreme Court eventually won 10 years later 

coming back following a second challenge. 

In the Augustini case, the court overruled its prior precedent involving the same New York City public school district. Scarce tax 

dollars, however, were used to divert through attorneys rather than 

to disadvantaged school children. By providing damages and a fee 

shifting statute in such a confused area of law, the complaining 

plaintiff often uses the threat of attorney’s fees and costs and damages to force Government officials to a desired result, whether or 

not the result is the right one. 

The confused and conflicted opinions of the Establishment Clause 

jurisprudence originate with the United States Supreme Court. The 

Court recently used several tests—or the court currently uses several tests, some of which conflict with one another. And sometimes 

the Court foregoes using any test at all. 

The Court uses the oft-maligned three-pronged Lemon test. The 

court later modified these three prongs to two prongs. But in certain institutional funding cases, the Court resurrects the third 

prong. For several years, the Court added the so-called ‘‘political divisiveness prong’’ but then recently overruled itself and eliminated 

this prong. 

The Court also uses a historical analysis or the Marsh test. 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. 

And we are left with little guidance to determine which test should 

be used. 

34

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

But the justices are not in agreement when it should be used. Nor 

do they agree whether it is coercion with psychological only or 

whether it involves some kind of penalty or force. 

Knowing the problem, Justice Sandra Day O’Connor, shortly before her retirement, proposed a brand-new test in the Newdow case 

that was designed to be used in limited circumstances. Justice 

Thomas has recently advocated that the Establishment Clause does 

not even apply to the States, nor does it bind the States. Then, of 

course, sometimes the Supreme Court uses no test at all and, even 

worse, provides no explanation as to why it used no test. 

If the justices of the United States Supreme Court are conflicted 

over the meaning of the Establishment Clause—and they are—and 

if professors and judges in lower courts are conflicted—and they 

are—then it is particularly inappropriate to punish Government officials with the threat of damages and attorney’s fees for a mere 

misstep in this constitutional minefield. 

Another peculiarity with the Establishment Clause that makes 

sections 1983 and 1988 inappropriate is the exception to the normal rules regarding standing. In every other area of law, the plaintiff must experience a direct and concrete injury. But in the Establishment Clause context, Federal courts have relaxed these requirements and carved out significant exceptions. 

In most lower Federal courts, a plaintiff can bring a challenge to 

the Establishment Clause simply because the litigant claims that 

he or she is offended by the imagery, the words or the alleged action. This exception to the general rule has opened up the floodgates of litigation. 

It is because of these floodgates of litigation and it is because of 

the unique situation regarding the Establishment Clause that I believe, although these statutes, 1983 and 1988, may be applicable in 

other areas, even first amendment free speech or free exercise, they 

are wholly inapplicable in the Establishment Clause. 

If you talk to any judge or any professor, the issue of the Establishment Clause is the most confusing area of constitutional law. 

I argued one of the Ten Commandments cases last year. And I 

can tell you no one can make a determination as to what the rationale is between those two cases. In one case, they used a brandnew modified Lemon test, in the Kentucky case. And in the other 

case, they essentially used no test at all. 

One court recently on December 20, 2005, says that the Supreme 

Court on the Establishment Clause have left the lower Federal 

court judges in first amendment purgatory. For these reasons, we 

shouldn’t punish Government officials when our own justices of the 

Supreme Court are conflicted and confused over the meaning of the 

Establishment Clause. 

Thank you very much. 

[The prepared statement of Mr. Staver follows:]

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PREPARED STATEMENT OF MATHEW D. STAVER


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Mr. CHABOT. Thank you. 

Mr. Stern, you are recognized for 5 minutes. 

TESTIMONY OF MARC STERN, GENERAL COUNSEL,

AMERICAN JEWISH CONGRESS 

Mr. STERN. Mr. Staver——

Mr. CHABOT. If you could turn the mike on. 

Mr. STERN. Mr. Staver has given the lies to the charge that the 

ACLU would not litigate if there were not attorney’s fees. The New 

York City case he talked about was finally litigated in PEARL v. 

Nyquist in 1973 3 years before the attorney’s fees statute was 

brought. My predecessor was lead counsel. If there were attorney’s 

fees, it was later in Aguillard when the other side won, but not 

when the original case, PEARL v. Nyquist, was brought. 

Secondly, this bill has two components. We have heard not a 

word from its proponents about the limitations on remedy, which, 

as I read the bill, include even a ban on declaratory judgments, 

nominal damages, punitive damages, which we make available to 

prisoners even under the Prison Litigation Reform Act. 

As to attorney’s fees, this act leaves citizens worse off than inmates in prison. Inmates get capped attorney’s fees. Here a proven 

violation of the Establishment Clause results in no attorney’s fees. 

Secondly, it is simply not true that the Establishment Clause is 

uniquely difficult. I defy anybody to explain when regulations become taking. I defy anybody to explain to me in great detail what 

the public forum doctrine amounts to. 

There are any number of cases—I have advised school districts—

a case called Wigg v. Sioux Falls School District where a teacher 

taught in her own classroom immediately after school in a Bible 

club. I believe, others believe that that is a substantial Establishment Clause reason for the school to say you can’t teach a Bible 

club in the same classroom you teach during the day as a public 

school teacher. I think there is a Supreme Court case on point directly controlling. 

I told the school board they ought to take an adverse decision of 

the Eighth Circuit to the Supreme Court. And what they said to 

us was we can’t afford to. We will have to pay attorney’s fees for 

the other side. It is entirely—the bill’s ban on attorney’s fees is entirely irrational. 

If a teacher is disciplined for compelling students to bring—to 

pray, he or she can bring a first amendment free speech challenge, 

a free exercise challenge. And in the unlikely event that they prevail, they get attorney’s fees. If by chance the student beats the 

teacher to the courthouse and brings an Establishment Clause 

claim on a clear, established violation of the Establishment Clause, 

they get no attorney’s fees. 

The issues before the court will be exactly the same. The school 

district will raise free speech claims or free exercise claims on behalf of the teacher, or the teacher will intervene and raise those 

claims. The Establishment Clause issues in the case, the free 

speech claims in the case—who gets attorney’s fees depends simply 

on who was first to the courthouse door. I suggest to you there is 

no rational difference between those two cases that justify this restriction. 

73

Finally, I would say the following. It is clear from the testimony 

of my colleagues on the panel that the chief beef here is not with 

the attorney’s fees statute but with the substance of constitutional 

law. And that is plainly beyond this Committee’s competence. 

There is a problem in one category of cases where there are conflicting constitutional rights and you have an award of attorney’s 

fees to one side, whoever happens to win when there are plausible 

arguments all along on both sides. But that would put Mr. Staver’s 

group out of the attorney’s fees business. That would put ACLJ out 

of the attorney’s fees business. And they, equally with the ACLJ, 

the American Center for Law and Justice, equally with the ACLU 

finance their operation with attorney’s fees. 

The Wigg case, in which the teacher taught in her own classroom 

immediately after school, which the Wall Street Journal cited in my 

testimony, points out that kids feel attracted to the teacher they 

know, I think has substantial Establishment Clause problems. 

There is a conflict of rights there. 

If you are interested in not having the attorney’s fees statute 

prevent people from litigating cases where there are plausible constitutional claims on both sides, then do it even-handedly. Say, in 

cases in which the court finds that there is substantial constitutional arguments on both sides, constitutional argument, not merely policy argument, on both sides, you have the discretion to lower 

or cap fees. That would be fine. But I assure you it is not the 

ACLU that will be the chief victim of that, of that action. The action will come from the other side. 

Finally, because I have many friends in the ACLU. It is true that 

you have Ken Falk’s letter. It is all equally true that when that letter was written it was perfectly clear that the school couldn’t run 

a school graduation because the Supreme Court had said so the 

year before. 

A colleague of mine who was on the opposite side of the aisle in 

church-State cases used to make a living writing letters to school 

boards asking them to stop what he thought were constitutional 

violations. And I would call him up and I would say—I am not 

going to use his name—you know, ‘‘Joe, the other organization that 

is your competitor, first they file a lawsuit, and then they settle for 

attorney’s fees. Why do you write the letter first?’’ He goes, ‘‘Well, 

that is just not an ethical way to proceed.’’

If you think this is a problem only of the ACLU, you are wrong. 

Attorney’s fees can be abused. They also make it possible to vindicate constitutional rights that otherwise would go unvindicated. If 

you want to deal with abuse, then deal with abuse. This bill doesn’t 

deal with abuse. It deals with one section, one type of rights that 

the Committee happens to disfavor. That is not a permissible basis 

for legislation. 

[The prepared statement of Mr. Stern follows:]

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PREPARED STATEMENT OF MARCH D. STERN


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Mr. CHABOT. Thank you. 

Professor Garry, you are recognized for 5 minutes. 

TESTIMONY OF PATRICK GARRY, ASSOCIATE PROFESSOR OF 

LAW, UNIVERSITY OF SOUTH DAKOTA SCHOOL OF LAW 

Mr. GARRY. Thank you, Mr. Chairman, Members of the Committee. 

It has already been discussed here the confusing and inconsistent 

status of the Establishment Clause jurisprudence. I would contend 

in disagreement with Mr. Stern that it is an unusually confusing 

and inconsistent area of the law. Teaching constitutional law, I 

make my living on making the students confused about doctrines 

in constitutional law. But it is particularly confusing when it comes 

to Establishment Clause doctrine. 

And I think there is a link between the fear that local government officials have in dealing with this area about what, in fact, 

does constitute an impermissible establishment of religion. And the 

court, in fact, has recognized that in several cases I cited to this 

Committee, the Lamb’s Chapel case, the Rosenberger case, the 

Good News cases in which local government officials are, in effect, 

selecting out and discriminating against religious expression because of the fear that somehow any connection between that local 

governmental entity and this religious expression might be seen as 

an unconstitutional establishment. 

There have been—it has already been discussed—sort of the 

number of different tests that have been used to measure whether 

an establishment—impermissible Establishment Clause has occurred. And one can even see it sort of in comparing some of the 

cases that have taken place. For instance, government can pay for 

students to be bused to and from religious schools, but the government can’t pay for busing trips during the school day for field trips 

for those students. 

Some Christmas creches on public property are okay. Others are 

not. It is due largely to the individual facts and context of each 

case and how the judges are going to interpret those. 

Prayers can be used to open legislative sessions, but they can’t 

be used prior to Friday night football games. 

There is also indications in which local government officials or 

school boards in particular have singled out religious expression 

only to be told later on that, in fact, the Establishment Clause did 

not require their particular activity. One school even prohibited a 

teacher’s assistant from wearing a cross on a necklace during 

school hours. Elsewhere, afraid of violating the Establishment 

Clause, school officials refused to let a student read a religious 

story as part of a class exercise on inspirational stories. 

Now, granted, Mr. Stern brings a good point. This Committee 

can’t necessarily control or can’t control really in any way what the 

Supreme Court does about the Establishment Clause. But that 

aside, it can do something about the costs and risks imposed by a 

Supreme Court that is very uncertain and inconsistent in this particular area. 

I might also add in response to the—sort of the general subject 

area of Section 1983. Section 1983 is a civil rights statute and 

meant to provide relief for violation of individual civil rights. As 

98

was brought up, it is used to vindicate when there are violations 

of a person’s right to vote. 

And, in fact, in the religious area if an individual is discriminated against or infringed on their religious liberty in some way, 

they have the opportunity to bring a free exercise clause—and that 

free exercise lawsuit. And under that, they can pursue this kind of 

remedy. And that is a real individual right remedy. 

However, the Establishment Clause within the context of the 

Constitution is not necessarily an individual right provision, not at 

all in the sense that free speech is or an individual’s right to vote 

or an individual’s right to practice their religion. It is a—it is a 

structural kind of provision which deals with the relationship between religion and Government in society. 

And with that, I will sum up and thank the Committee for inviting me here today. 

[The prepared statement of Mr. Garry follows:]

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PREPARED STATEMENT OF PATRICK M. GARRY


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Mr. CHABOT. Thank you very much, Professor Garry. 

We are now at that time where Members of the panel here will 

have 5 minutes to ask questions. And I will yield myself 5 minutes 

for that purpose. 

Mr. Lloyd, if I could begin with you. First of all, let me thank 

you for your service to our country. 

Mr. LLOYD. Thank you. 

Mr. CHABOT. In your opinion, is there any danger that the 

crosses, for example, at Arlington Cemetery that are honoring our 

brave men and women who have given their lives in defense of this 

country could fall under the argument that it is in violation of Establishment Clause and potentially have difficulties there? 

Mr. LLOYD. I think there is a great danger of that happening because of the precedents that have been set at Mojave Desert Veterans Memorial case and Mount Soledad case. And we do not in 

the American Legion consider this to be nonsense, this legislation 

or this threat. There is absolutely nothing in the law right now to 

prevent declared haters of America, including terrorists in our 

midst or their sympathizers, from following the Mojave Desert case 

precedent or Mount Soledad and suing our veterans memorials because the symbols there are on Federal property. And that is the 

premise upon which these decisions are based. 

I am on an honor detail at Riverside National Cemetery, which 

is the home of the national medal of honor recipient memorial and 

the POW-MIA memorial. And the centerpiece of which is a dramatic sculpture of a POW sculpted by a veteran, Lee Millett, Jr., 

a member of the American Legion who waived the entire $100,000 

artist’s fee so the memorial could be built. Lee Millett engraved on 

the base of that memorial a prayer: ‘‘I look not to the ground because I have no shame. I look not to the horizon for they never 

came. I look to God. I look to God.’’

Today under the jurisprudence that we are faced with, that is indeed vulnerable. A lawsuit could be mounted on that. And we need 

to be able to defend against it. There is 80,000 graves there, almost 

all of them with crosses or Stars of David or other symbols. They 

are at risk. 

At Normandy Beach, there are over 9,000 raised crosses and 

Stars of David. They are on the American cemetery. It is considered our property administered by the French. They are at risk. All 

the terrorist sympathizers, one of the Osama bin Laden’s minions, 

has to do is to say look at this precedent, walk into a Federal court, 

file the suit, win it like shooting ducks in a barrel and get the 

money. 

Now, I understand that in the testimony of Mr. Stern—and I respect his testimony—he said, of course, by denying attorney fees 

the act makes it likely that few suits would be brought, even in 

cases where an injunction would be appropriate. I happen to agree 

with his analysis in that regard. 

But I don’t think for a minute that there is anything in the law 

today that will protect us from such suits by terrorists or their 

sympathizers and their right to get attorney fees because you can’t 

give it to the ACLU and deny it to Osama bin Laden. And we have 

nothing to protect us except passage of this bill, the Public Expression of Religion Act. And I urge its passage. 

165

Mr. CHABOT. Thank you. 

Mr. Staver, if I could go to you next. Are you aware of cases 

where cities and towns have felt that religious references in their 

public square were constitutional but they could not afford to defend those references? 

Mr. STAVER. Absolutely, Mr. Chairman. In fact, we receive calls 

all the time from around the country. Liberty Council has been in 

existence since 1989. And we provide our services at no cost to the 

plaintiff or to the defendant, depending upon whether the constitutional principle is one that should be defended. But even in those 

situations where we would represent county or Government officials at no cost to them, the fact is many of them back down from 

a threat, just simply a letter or even a phone call because of the 

possibility that they would have enormous financial burdens at the 

end of this litigation if they were to lose. 

Take, for example, the Ten Commandments case. The Ten Commandments case is, I think, universally—and Mr. Stern, I am sure, 

will agree with me on this. In fact, I don’t know anybody on either 

side of this aisle, whether you are more separationist or less separationist, that doesn’t agree with this proposition. And that is this. 

The Supreme Court has absolutely given confusing and conflicting 

notions with regards to how do you deal with the Ten Commandments. 

In the Ten Commandments case that I argued, the court actually 

said you could have an identical Ten Commandments display in 

one county or one part of the State that would be constitutional but 

another one that looks exactly the same in another part of the 

county, a different neighboring county could be unconstitutional. In 

fact, you could have the same thing in the same county in different 

governmental buildings. And the sole difference between the constitutionality of one versus the other, even though they are identical, is the subjective statements that were made by the governmental officials, whether they may have referenced God when it 

was going up or may they have referenced, in fact, that it was just 

simply an educational display. 

Now, when you are dealing with situations like that and somebody might have made a statement or somebody who was religiously affiliated came by and made a statement at the display of 

these particular monuments or displays and it is printed in the 

newspaper, that alone could make something unconstitutional. 

And, in fact, in that case, Justice Souter cited a newspaper article 

of a clergy who showed up at the actual display whose clergy was 

the pastor of one of the governmental officials. And because of that 

used that as at least an example of how they must have had some 

religious motivation and, therefore, it is unconstitutional. 

And this same display since I argued the case we have also defended it in other parts around the country at the Federal courts 

of appeals has been upheld, the same, exact, identical display at 

the 7th Circuit Court of Appeals and now at the 6th Circuit Court 

of Appeals. And it is the 6th Circuit Court of Appeals on December 

20, 2005, that says the Supreme Court has left us in first amendment purgatory. 

So what that means is this. When we receive calls or see situations where someone gets a letter, whether it be from the ACLU 

166

or Americans United for Separation of Church and State or someone else, and they are threatened with litigation, even though they 

wouldn’t have to pay their attorney’s fees for having their own defense, the risk of having to factor this into a limited school board 

budget or city council budget is too great for them to bear. And so, 

they back down simply because of threat. 

Mr. CHABOT. Thank you very much. 

My time has expired, so I am out of time for questions. 

The gentleman from New York, Mr. Nadler, is recognized for 5 

minutes. 

Mr. NADLER. Thank you, Mr.—thank you, Mr. Chairman. 

First of all, let me say that it would be a great day for this country when the terrorists bring lawsuits instead of plant bombs. 

Mr. Stern, can you cite any case in which a religious symbol on 

an individual grave marker has been challenged in court on establishment grounds? 

Mr. STERN. No, that charge is demagoguery. Nobody is going to 

bring it. That is clearly the statement of the person or the family——

Mr. NADLER. That being the cross or the Star of David on the 

grave? 

Mr. STERN. There is no such case. I know of no organization that 

has even contemplated such a lawsuit. All the lawsuits involve 

symbols erected by the Government owning the cemetery and represent the Government’s speech, not the speech of individuals. I 

might add, just to be technical, that a lawsuit against the Federal 

Government is not relevant to today’s discussion because the attorney’s fees statute does not apply against the Federal Government. 

Mr. NADLER. Thank you. 

Mr. STERN. And so, all those things——

Mr. NADLER. Thank you. 

Mr. Staver, have you or any organization you have represented 

been awarded attorney’s fees? 

Mr. STAVER. Yes, we have. 

Mr. NADLER. Thank you. Do you know what percent of the budget of Liberty Council of the American Center for Law and Justice 

comes from attorney’s fees? 

Mr. STAVER. I don’t know, but I know from ours——

Mr. NADLER. Could you submit it for the record, please? 

Mr. STAVER. I could submit it. 

Mr. NADLER. Thank you. 

Mr. STAVER. I know from ours it is very little. 

Mr. NADLER. Thank you, but submit it for the record, please. 

And could you provide a record of the fees you have been awarded of this type in dollar amounts as a percentage of the annual 

budget for the record, as you just said? 

Mr. STAVER. We could do that. 

Mr. NADLER. Thank you. 

Mr. STAVER. It is a public record. 

Mr. NADLER. Mr. Stern, if the Government willfully violates an 

injunction under this act, what remedy is available apart from the 

attorney’s fees issue? 

Mr. STERN. If it violates an injunction under the act, presumably 

all the remedies that are available, although, whether that includes 

167

damages afterwards or attorney’s fees for enforcing the original injunction, is entirely unclear. 

Mr. NADLER. Well, under this bill it would not include——

Mr. STERN. There might be, there might be nothing. So that, in 

fact, the San Diego case, which Mr. Lloyd talks about, has a 

$900,000 or $500,000 attorney’s fees because for 15 years the city 

of San Diego and its supporters have simply refused to abide by a 

Federal court order. And what this bill will do, by taking away the 

attorney’s fees, is encourage people to ignore Federal court orders 

because there is no penalty for violating a Federal court order, a 

binding Federal court order. 

Mr. NADLER. And also—but under this bill if you violate an injunction, there would be no damages, correct? 

Mr. STERN. There would be no damages. And worse yet, in a case 

in which you could——

Mr. NADLER. So what would stop under this bill—what would 

stop a recalcitrant governing authority and a local government 

from violating a Federal court injunction? 

Mr. STERN. Nothing. And what is worse is even if you only got 

a—if you only had a case where you could get declaratory relief—

for example, a one-time violation of the Establishment Clause 

where an injunction is impossible because there is no possibility of 

future repetition—you are utterly without remedy, no attorney’s 

fees, no nominal damages, no declaratory judgment and no punitive 

damages. It is an open invitation for people to defy the Constitution in the interest of political convenience at their will. 

Mr. NADLER. Thank you, Mr. Stern. 

Finally, take a case where the law is unclear. A teacher prays 

after school. I think you made reference to a given case. She claims 

she has a free speech right to do so. The school thinks—the school 

thinks it violates the Establishment Clause. How would this legislation affect the school’s calculus and deciding what to do about it? 

Mr. STERN. It would not because the teacher is free to bring a 

case. She gets attorney’s fees. The school board in any event is not 

entitled to attorney’s fees if it is vindicated. In fact, it is even unclear if a third party, let us say a parent of a student, intervened 

in that case and the school board won, whether the intervener 

would be entitled to attorney’s fees. 

Mr. NADLER. It is unclear under the current law or under the 

statute? 

Mr. STERN. It is unclear both. That would not change. 

Mr. NADLER. So, therefore, this doesn’t affect——

Mr. STERN. But the calculus doesn’t change for the school board. 

They are still faced with the possibility of attorney’s fees if they 

lose, nothing if they win. And a completely viable Establishment 

Clause claim does not get——

Mr. NADLER. Would this include forced prayer in violation of 

Barnette? 

Mr. STERN. Does this include—this includes any Establishment 

Clause violation, including as cited in my testimony——

Mr. NADLER. So there would be no remedy, then? 

Mr. STERN. No remedy. Cases where, as the school board in 

Montgomery County did and Ann Arbor did, liberal bastions where 

they imposed a liberal form of religion on the students, which is an 

168

Establishment Clause violation equally, there would be no remedy 

for those students, either. And one of those cases involved a onetime violation. 

Mr. NADLER. So do you think that forced prayer involves the violation of individual rights? 

Mr. STERN. Well, not according to Justice Thomas, who Professor 

Garry—whose views Professor Garry has endorsed. I think it does. 

Mr. NADLER. And——

Mr. STERN. The Supreme Court thinks it does. 

Mr. NADLER. Okay. 

Mr. Staver, final question. Atheists and wiccans have asked that 

their symbols be placed on individual grave markers of their adherents in military cemeteries. Do you support their right to have 

their symbols on their tombstones in military cemeteries? 

Mr. STAVER. Certainly, anyone has a right if they wanted to have 

their own particular choice of whatever religious symbol on 

their——

Mr. NADLER. Including wiccans? 

Mr. STAVER. Including wiccans. But I would also like to say that 

in response to this violating a court injunction, it is not true that 

you would not have some attorney’s fees because the fact is——

Mr. NADLER. Under this bill? 

Mr. STAVER. Under this bill because you can get a damage award 

or an attorney’s fee award for violating a court injunction irrespective of whether there is a fee shifting of damaging shifting statute. 

So in this hypothetical you gave, that would be a violation of a 

court ordered injunction. And that would be punishable by attorney’s——

Mr. NADLER. Mr. Stern, would you come in on that, please? 

Mr. CHABOT. The gentleman’s time is expired. 

But you can comment, if you would like to. 

Mr. STERN. I don’t know on what authority and what statute a 

court would rely on to award damages other than the underlying 

constitutional violation. 

Mr. NADLER. I am confused. So——

Mr. STERN. In any event——

Mr. NADLER. Mr. Staver is saying that despite this bill, if someone violated—if some Government authority violated an injunction, 

you could still get attorney’s fees? 

Mr. STAVER. You could get attorney’s fees. 

Mr. NADLER. Okay. 

And, Mr. Stern, you are saying——

Mr. STERN. I think that is not the case. I am prepared to submit 

a legal memorandum. I may be wrong, but I believe that that is 

the case. 

Mr. NADLER. Thank you. 

Mr. STERN. And the bill certainly leaves that unclear. 

Mr. NADLER. Thank you. 

Mr. CHABOT. Would we have to pay attorney’s fees for that legal 

memorandum? 

Mr. STERN. At a very enhanced rate, Your Honor. 

Mr. CHABOT. Okay, thank you. 

169

The gentleman from Indiana, the chief sponsor of the proposed 

legislation, is recognized for the purpose of asking questions for 5 

minutes. 

Mr. HOSTETTLER. Mr. Stern, are you familiar with the fact that 

the bill allows for injunctive relief? 

Mr. STERN. Yes, but—excuse me. But——

Mr. HOSTETTLER. That is my question. 

Mr. STERN. Yes, but——

Mr. HOSTETTLER.—and we will have a chance for another. So the 

answer is yes. 

Professor Garry, if an injunction is granted and an individual 

violates the injunction, is there grounds for a contempt citation? 

Mr. GARRY. Yes. 

Mr. HOSTETTLER. Is the contempt citation, if violated, grounds 

for fines? 

Mr. GARRY. As far as I know, yes. 

Mr. HOSTETTLER. Irrespective of the language of this legislation? 

Mr. GARRY. Yes. 

Mr. HOSTETTLER. Mr. Stern, when you voluntarily offered in your 

testimony that there would be no penalty whatsoever of an individual that would violate the Establishment Clause and, therefore, 

defy an injunction, did you know that a contempt citation——

Mr. STERN. A fine doesn’t remedy the plaintiff’s harm. It goes to 

the Government. 

Mr. HOSTETTLER. No, that wasn’t the question. The question 

was——

Mr. STERN. It is not what the testimony is talking about. The 

testimony is talking about the harm to the plaintiff. 

Mr. HOSTETTLER. In your——

Mr. STERN. The plaintiff is not remedied by a fine that goes to 

the U.S. Treasury. 

Mr. HOSTETTLER. That is not, that is not your statement. Your 

statement was there was no penalty of the, of the——

Mr. STERN. There is no penalty to the plaintiff. If I need to 

amend the testimony, I will, but that is what I meant. 

Mr. HOSTETTLER. And that is true. But that was not the—that 

was not what you said. You said there was no reason for the defendant to not—to not——

Mr. STERN. Look at the San Diego case. 

Mr. HOSTETTLER.—injunction. 

Mr. STERN. Fifteen years we are litigating an order that is final. 

Mr. HOSTETTLER. I have another——

Mr. STERN. And public officials defy it because it is in their political interest to defy it. 

Mr. HOSTETTLER. I have another question for you, Mr. Stern. You 

talk in your testimony about having a client who was a football 

player who objected to school-sponsored prayer in the case Berlin 

v. Okaloosa County. What was the decision in that case? 

Mr. STERN. We lost the temporary preliminary injunction because the school board threatened to riot at the football game. 

After the school superintendent’s election was safely out of the 

way, the school board settled. That case was later controlled by—

it was later controlled by Doe and——

170

Mr. HOSTETTLER. But according to your testimony, the reason 

why they settled—here the availability of attorney’s fees put an 

end to a calculated defiance of the Constitution for cheap political 

advantage. The facts of the case—in Okaloosa County, was it mandatory for attendance at a football game? 

Mr. STERN. If you are the punter on the team, yes. 

Mr. HOSTETTLER. My son was a place kicker on a team. And he 

never had to go to a football game. It was never required. 

Mr. STERN. If he wanted to be a place kicker on the team, he had 

to be where the team was. 

Mr. HOSTETTLER. Was it mandatory—was it mandatory for participation in high school athletics? 

Mr. STERN. Congressman, if you want to re-argue Santa Fe 

School District, I am perfectly prepared to re-argue it. 

Mr. HOSTETTLER. No. 

Mr. STERN. The Supreme Court rejected that argument. And Lee 

v. Weisman is the same thing. It was not mandatory to attend 

graduation. That is Justice Scalia’s submission. As I count, he 

didn’t get five votes. 

Mr. HOSTETTLER. Thank you. 

Mr. STERN. If you don’t get five votes on the Supreme Court, you 

lose. 

Mr. HOSTETTLER. Right. Thank you for the filibuster. 

But given the fact that neither attendance at the football game 

was mandatory, nor participation in varsity athletics in Okaloosa 

County was mandatory, is it possible, Professor Garry, is it possible 

that a later Supreme Court may find that because of no mandatory 

attendance, no mandatory participation, that, in fact, no coercion 

on the part of the school district or the Government took place in 

the school sponsored prayer at the football game? 

I am not asking you if it is constitutional law today because 25 

years ago it was unconstitutional, according to Stone v. Graham, to 

have the Ten Commandments in a public place. But in 2005, that 

changed. My question is, is it possible, given what I have just 

asked you, that some future Supreme Court may say that this is 

not a violation of the Establishment Clause? 

Mr. GARRY. Well, Representative, I think it is more than possible. Of course I think it is possible. And I outline the arguments 

in a recent book I published on the Establishment Clause. 

Mr. HOSTETTLER. Well, thank you. 

So we have a situation whereby the case was not decided. The 

case was determined as the result of the coercion on the part of the 

plaintiffs to get the school district to say we will take you to court, 

you will pay our attorney’s fees. And so, the case never went to 

court. And, in fact, as is the testimony, an interim injunction was 

actually denied by the court. 

So it is possible, possible that the case may have been lost, not 

probable, not likely, but possible that the case would have been lost 

on the part of the plaintiff and this school sponsored prayer could 

have continued. 

Mr. Chairman, this is why we need PERA because of the sword 

of Damocles that hangs over everyone’s head given the muck of Establishment Clause jurisprudence as it is today. I yield back the 

balance of my time. 

171

Mr. CHABOT. The gentleman’s time is expired. 

The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes. 

Mr. SCOTT. Thank you. 

Mr. Stern, can you bring a 1983 action against the Federal Government? 

Mr. STERN. No. 

Mr. SCOTT. No? 

Mr. STERN. No. 

Mr. SCOTT. Okay. 

If you have a 1983 action, Mr. Lloyd—you talked about attorney’s 

fees against the American Legion. The American Legion isn’t the 

defendant in this case. Is that right? So you wouldn’t have to pay 

attorney’s fees? 

Mr. LLOYD. I raised the point, Representative, that if we attempt 

to intervene as parties and fully participate in the adjudication 

then we risk the fee shifting of the ACLU’s attorney fees to us. 

That has a chilling effect on us and everybody else who would get 

in and attempt to fight for these. And if I may, the point about the 

imposition of attorney fees under 1983 and Federal defendants, we 

believe in the American Legion that the Equal Access to Justice 

Act must be reformed in the same way as 42 U.S.C. 1988. And it 

should be. 

In the Mojave Desert Veterans Memorial case, the ACLU pleaded 

for fees under both. They said give us fees under the Civil Rights 

Act of 1976. And then they said or give us fees under the EAJA. 

They ended up getting $63,000 under the EAJA. We think they 

both should be reformed. 

Mr. SCOTT. Mr. Staver, if there were no attorney’s fees, would 

the law in this area be any clearer? 

Mr. STAVER. I don’t think it would be any clearer, Congressman. 

I think we have to have the Supreme Court make it clearer and 

then the lower Federal court judges have some principles and rules 

to follow. And right now they don’t have any consistent area of law. 

It is not going to make it clearer. 

Mr. SCOTT. Okay. 

Mr. STAVER. The problem, however, is——

Mr. SCOTT. It would still be the same confusing law that it is. 

You mentioned standing, too. If people who are offended by the 

State action, who could? 

Mr. STAVER. Well, this would not affect standing. What has happened—and in the normal standing rules, you have to have three 

criteria you meet. And primarily you have to have a direct and concrete injury, not imaginatory or conjecture. But in the Establishment Clause, there has been a huge area that is carved out that 

has opened up the floodgates so essentially anybody who drives by 

that sees something that they are offended to can bring a suit and 

walk into court. 

Mr. SCOTT. Well, who else—who else would there be to bring the 

case? 

Mr. STAVER. Well, I think as Judge Easterbrook said in the 7th 

Circuit case involving the Ten Commandments, the issue of whether words alone that make an offense to you give you a cause of action to come to court should be reconsidered. 

172

Mr. SCOTT. Who else could bring the case other than someone—

other than someone who is offended, who else could bring the case? 

Mr. STAVER. Well, someone who is actually injured by the activity. For example, it is one thing if you are forced to participate in 

a religious activity. It is another thing if you are driving by on a 

highway and you see a cross on a city seal as a police car drives 

by at 40 miles per hour and all of a sudden you are offended. 

Mr. SCOTT. Who else could—who could bring the case? 

Mr. STAVER. Somebody who has either a penalty or force or some 

kind of coercion in participating in a religious activity or exercise. 

Mr. STERN. It is not true, in any event, that anybody who drives 

by—the courts have uniformly insisted that you change your behavior in some way. You don’t go into the courthouse. You walk 

around to some other entrance and the like. It is simply a 

misstatement of current standing law to say that anybody who 

drives by can bring a case. 

Mr. STAVER. But all that means is that instead of going down 

First Street, you divert and go down Second Street. You change literally nothing in your behavior. 

Mr. SCOTT. Well, I would be, I would be hard pressed to find 

somebody—if the local city put up a religious symbol in the courthouse, that would be hard for us to find somebody who has an economic loss as a result. So if, so if the people who are offended by 

that can’t sue, there wouldn’t be a plaintiff. 

Mr. STAVER. Well, the fact is this does not change any standing 

rules. The standing rules are a whole different issue that the 

courts need to deal with. What this does is because the floodgates 

have been opened because of the standing rules and because it is 

so confusing that people don’t know what to do, the threat of attorney’s fees and damages are inappropriate. In fact, what you have 

is a court awarding damages to one particular situation that is 

identical and to the opposite situation awarding damages because 

they don’t know which side of this issue to come down on. 

Mr. SCOTT. What is a disincentive to a locality, Mr. Stern, from 

just violating the law intentionally? 

Mr. STERN. None. 

Mr. CHABOT. Will the gentleman yield? 

Mr. SCOTT. Even in a—even in a case that is not even close. 

Mr. STERN. Take a case——

Mr. SCOTT. And if the victim——

Mr. STERN. Take the case in Michigan which is cited in my case. 

A school district sponsors a panel of liberal clergymen to explain 

why the Bible does not ban homosexuality. It was a diversity day. 

That is the day that this event occurs. It is a one-time event. It 

is a clear violation of the Establishment Clause. By the time you 

get to court and litigate this case, diversity day is long forgotten. 

There is a clear violation of the Establishment Clause. 

Under this bill the conservative Christians who brought suit 

would have no remedy. They can’t get an injunction. It is moot. 

They can’t get any attorney’s fees because the bill says so. There 

is no declaratory judgment because the bill says so. There is no 

nominal damages because the bill says so. And there are no punitive damages because the bill says so. Nobody remedies. 

173

Mr. SCOTT. I just have a couple of seconds left, and I wanted to 

get this chart——

Mr. CHABOT. The gentleman doesn’t have a couple seconds left. 

But the gentleman has an additional minute. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Just since the Chairman pointed out what happened during 

court, who was in control, let me break the color code down. Red 

is Republican presidents. Purple is Democratic presidents. 

And you can use your own adjectives to describe what happened 

when the 10-year forecast starting in the beginning of 2001 

dropped $9 trillion after that red line fell off the chart. And that 

is—interest on the national debt is going up hundreds of billions 

of dollars from what had been projected just then. And that money 

could have gone to veterans and other needs or could have paid off 

the national debt. 

Mr. CHABOT. Would the gentleman—would the gentleman explain how the PERA bill that Mr. Hostettler has proposed would 

affect that? 

Mr. SCOTT. Yes, because we have suggested all these attorney’s 

fees are causing the lack of veterans’ health care. And I suggest 

that part of the $9 trillion deterioration in the budget could have 

been used for veterans’ health care rather than worrying about the 

few hundred thousand dollars. We are talking trillions, not billions, 

not millions, few hundred thousand dollars that naturally may 

have gone to some of these attorney’s fees. 

We could have gotten a lot more done if we had not ruined the 

budget. And you can use whatever adjective you want to describe 

that——

Mr. CHABOT. The gentleman’s time has expired. 

But the Chair would just note that we would be happy to provide 

reams and reams of documentation to show that under Republican 

administrations there have been significant improvements in veterans’ health care and a whole range of other issues. But that is 

not the jurisdiction that this Committee has. 

Mr. SCOTT. Mr. Chairman, could I be recognized for unanimous 

consent? 

Mr. CHABOT. Pardon me? 

Mr. SCOTT. Could I be recognized for unanimous consent? 

Mr. CHABOT. Without objection. 

Mr. SCOTT. I have letters from the Leadership Conference on 

Civil Rights, Americans United, and a coalition of many civil rights 

organizations opposed to the legislation that I would like to enter 

into the record. 

Mr. CHABOT. Without objection. 

[The letters referred to are located in the Appendix.] 

Mr. SCOTT. Thank you. 

Mr. STAVER. Mr. Chairman, may I be recognized for just one moment to correct something? 

Mr. CHABOT. Yes. 

Mr. STAVER. Congressman Scott mentioned whether there would 

be any disincentive if this bill were passed. I would like to underscore that this is not a radical or unusual bill. In fact, this would 

make the State as it relates to Establishment Clause exactly how 

it has always been with regards to the Federal Government. And 

174

the Federal Government would have exactly the same disincentive 

not to violate a constitutional right. 

We haven’t seen the Federal Government running away rampant 

because they don’t have an attorney’s fee or damage provision 

under Section 1983 or 1988. So I don’t think this opens up the 

floodgates to the Government run amok because it simply puts the 

States back into the same thing we have always dealt with, the 

Federal Government. 

Mr. STERN. If Mr. Staver wants to see 1988 repealed entirely, 

that would be fine. The question before the Committee is why selectively repeal it. You don’t have a 1988 for the Federal Government on free speech. 

Mr. CHABOT. Okay. The Chair—the Chair—we are going to go 

back to regular order here. 

And the gentleman from Arizona, Mr. Franks, is recognized for 

5 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

And thank you, gentlemen, for coming. And I want to be very, 

very brief here with my questions because I would like to yield to 

another gentleman here. 

So, Mr. Stern, earlier the question was brought up as to the 

crosses or Stars of David on military cemeteries. And I thought I 

heard you say, and I believe I did—and I just want you to clarify 

very transparently, very courageously your own opinion, not stating a fact, but your own opinion. 

If the family or the soldier that has died is the one that designates the cross or the Star of David or the wiccan, whatever it 

is, is it then appropriate or is it your opinion that that is constitutional——

Mr. STERN. Completely. 

Mr. FRANKS.—for the Federal Government then to pay for that 

tombstone and for that cross or that Star of David or whatever the 

family designates? Is that your opinion, a yes or no, sir? 

Mr. STERN. Yes. And it would be inappropriate for the Government not to do so. 

Mr. FRANKS. Okay. I appreciate your—do you think that that is 

the ACLU’s opinion? 

Mr. STERN. Yes. 

Mr. FRANKS. Okay. And you think that the Supreme Court—and 

that is constitutional? 

All right. That is what I wanted to know. And I appreciate it. 

Mr. STERN. They litigated such a case, and they made it 

clear——

Mr. FRANKS. I appreciate the transparency. 

Mr. Lloyd, if I am understanding the gentleman’s position, he 

says that it is appropriate as long as the family decides or the soldier what that religious symbol is, that it is appropriate for Government to pay for the creation of that symbol. 

Then how is it—and you understand where I am on—I am a cosponsor of this bill. How is it then, when you incorporate someone 

that built a cross out here on private money—how is it then unconstitutional for that to be incorporated into some type of cemetery 

situation? 

Your opinion, sir? 

175

Mr. LLOYD. Well, I would not dream of being so presumptuous 

as to explore the thinking that has resulted at modern jurisprudence in this issue because it is so confusing. In my small mind I 

couldn’t grasp it. Certainly, the people making the decisions can’t. 

I don’t believe it is unconstitutional to erect on private land a 

cross or a Star of David or any other religious symbol that later 

gets taken over or put into Federal or State or local public land and 

then declare it to be unconstitutional even though it was not unconstitutional when it was erected. And that is certainly the situation at Mount Soledad in California. It went up in 1913. There 

wasn’t even an incorporation of the Establishment Clause against 

the States and localities until 1947. And somehow the sky didn’t 

fall, and the republic survived. 

Mr. FRANKS. Thank you, Mr. Lloyd. 

And I just—Mr. Chairman, just a brief statement. You know, 

sometimes we are always seemingly surprised by all of a sudden 

what has happened in the last 30 or 40 years of certain things that 

we always thought were constitutional, crosses out here or Stars of 

David out here. We always thought those things were okay. And 

all of a sudden, we are shocked and we are amazed that the ACLU 

has found how unconstitutional they have always been. 

And so, it is always a shock to me. And I am wondering some 

day if we won’t see the ACLU bring suits that say we have to stop 

listening to families’ positions on that. I see no reason in the direction they are going why that won’t happen. 

And with that, I would like to yield the balance of my time to 

Mr. Hostettler. 

Mr. HOSTETTLER. I thank the gentleman for yielding. 

Mr. Chairman, I would like to continue to clear up this idea of 

a disincentive. The question was posed, as Mr. Staver said earlier 

from Representative Scott to Mr. Stern, is there a disincentive for 

violating the Establishment Clause. And Mr. Stern’s response was 

no. 

Mr. Staver, in your experience, is the probability of an injunction 

to stop an activity or a move, a particular symbol, is that a disincentive for violating the Establishment Clause? 

Mr. STAVER. Absolutely, it is. It is a disincentive for a number 

of reasons, not the least of which is the political ramifications that 

that creates where someone has literally violated a law. Now a 

court is telling them to stop violating a particular law. It is an absolute disincentive. 

Mr. HOSTETTLER. And I am not an attorney, but, Mr. Staver, if 

you could answer this question, too. Mr. Stern likewise said there 

was no remedy under the legislation PERA. Is injunctive relief in 

legal terms a remedy? 

Mr. STAVER. It is. And Mr. Stern also, I think, incorrectly, I believe, stated that you wouldn’t even have declaratory relief. Well, 

injunctive relief is the primary relief that you would have in any 

of these kinds of cases where a court issued an order telling you 

to stop doing something or to start doing something. But in this 

case, it would be to stop a particular activity. That is the remedy 

that is primarily sought. That remedy will always be there. 

Mr. HOSTETTLER. It is primarily sought because ostensibly the 

reason why the plaintiff is bringing the case—maybe not why the 

176

interest group is defending or is representing them, but the reason 

why the individual is bringing the case is to stop what they see as 

a violation of their constitutional rights. Is that not true? 

Mr. STAVER. That is true. 

Mr. HOSTETTLER. Thank you. 

I yield back the balance of my time. 

Mr. CHABOT. The gentleman’s time is expired. 

If the gentleman is available, the gentleman from Iowa? 

Mr. KING. Excellent. 

Mr. CHABOT. The gentleman from Iowa is recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. This is the story of my life, 

just in under the wire. 

And I want to thank the witnesses for the testimony this morning and thank Mr. Hostettler for bringing this bill and Mr. Chairman for holding this hearing this morning. 

I am not so much with questions for the panel as I am just an 

opportunity to reflect somewhat on my overall viewpoint on this. 

And I think it is framed a great deal on the remark that was made 

by Mr. Hostettler when he said given the muck of Establishment 

Clause jurisprudence today. 

And, of course, I don’t know if there has been testimony here and 

discussions about the text of the Constitution. But it has always 

been a source of despair to me to go to the Supreme Court of the 

United States, the very center of the place where one might go if 

they were seeking to hear profound constitutional arguments before 

the Supreme Court of the United States. I have gone there a number of times to listen to those profound constitutional arguments 

and those profound issues that so much shape this society and that 

are the core, I believe, of one of the foundations at least and the 

most important foundation of the greatness of America. 

And a couple of those arguments before the court would be the 

affirmative action cases that came in some couple of years ago and 

the Ten Commandments cases that were before the court. I don’t 

remember the exact date on that, but I sat in on that. 

And as I listened to those profound constitutional arguments, I 

listened for them. But I have not heard one before ht Supreme 

Court. It takes a very nuanced ear to pick out a constitutional argument before the Supreme Court. And yet we are here arguing 

case law as if somehow it were decided upon the Constitution when 

yes, you can read the briefs and you can find constitutional arguments there. 

But the case law that is being argued before the court is targeted 

at the nuances of the psychological analysis of perhaps a swing justice. And to sit there for an hour on a case and listen to those 

nuanced arguments targeted at the idiosyncrasies perhaps, maybe 

even the legal idiosyncrasies of a swing justice and then conclude 

that somehow the Supreme Court has ruled upon the text of the 

Constitution is a source of great frustration to me. 

And, in fact, when I walk to the Supreme Court to hear the Ten 

Commandments cases, I walked in out of the bright sunlight and 

before my eyes adjusted to the darkness inside the Supreme Court 

building, I was met by a security guard. And I introduced myself, 

and I said, ‘‘I am Congressman Steve King, and I am here to hear 

177

the Ten Commandments cases.’’ And he said—and this is for the 

record—‘‘My name is Moses, and I am here to lead you.’’

And he was a wonderful guard. Moses led me in, and he led me 

out. He led me past the oaken doors that have the Ten Commandments inscribed in them into the chamber of the Supreme Court 

where up on the frieze as if I were sitting in Justice Ginsburg’s 

seat, I would make my expression to the Moses upon the frieze in 

this fashion up above on her left and on the left of all the justices. 

And she referenced the Moses with the Ten Commandments there 

and said that he is simply up there among, I believe she said, 25 

other lawmakers or lawgivers. 

Now, the only figure I recognize up there is Moses. And the rest 

of them are pretty obscure from my understanding of Greek mythology or history. And it is—and so, then on the other side of the 

Supreme Court building, on the east side, on the pediment, there 

sits Moses also with the Ten Commandments on his knees as he 

sits down opened up for all to see. And he sends a message out for 

all to notice that here this is a nation that is based upon the rule 

of law and the foundation of that rule of law is God’s law. 

You cannot escape that. And if architects—excuse me, archeologists should somehow or another—or if something happens like 

Pompeii to America and we were sealed off with a lava flow and 

in 10,000 years if they would dig up this city and chisel the lava 

off of our buildings, they would see expressions of religion engraved 

into the marble and into the stone and into the concrete as part 

of who we are, of the foundation of this nation. 

And so, that foundation is this Constitution. And the Constitution says Congress shall make no law respecting an establishment 

of religion or prohibiting the free exercise thereof. 

They will read this Constitution. And then I would challenge 

those archeologists to go back and read through this case law, not 

having any institutional memory of the Constitution, but just simply starting with the most recent case law and then begin to read 

and understand like hieroglyphics and divine what was the foundation for these decisions. And I don’t care how smart they might be 

10,000 or 20,000 years from now. No one could discern the Constitution by reading backwards through the case law. 

And that is why we have this debate here today, because we 

have gotten so far away from the text and the original intent of the 

Constitution. It is unrecognizable in the case law today. 

And I thank you, Mr. Chairman. I yield back the balance of my 

time. 

Mr. CHABOT. Thank the gentleman. 

I want to thank the witnesses and thank the panel here as well 

today. I thought this was a very enlightening discussion. The panel 

did an excellent job of letting us know various points of views 

which exist. So——

Mr. NADLER. Mr. Chairman? 

Mr. CHABOT. I think I already did that. But I will recognize the 

gentleman. 

Mr. NADLER. You may have done one of them. Let me make sure. 

Mr. CHABOT. Go ahead. 

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Mr. NADLER. Mr. Chairman, I ask unanimous consent that all 

Members have 5 legislative days to revise the extent of their remarks, include additional materials in the record. 

Mr. CHABOT. Without objection, so ordered, even though I already did it. 

Mr. NADLER. And, Mr. Chairman, I don’t think you did this one 

yet. I understand that an earlier draft of Mr. Stern’s testimony has 

been included in the materials. I ask unanimous consent that he 

be permitted to substitute the final version of his testimony for the 

record. 

Mr. CHABOT. Without objection, so ordered. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. CHABOT. Okay. 

But I want to thank again the panel for their testimony here this 

afternoon. 

If there is no further business to come before the Committee, we 

are adjourned. Thank you. 

[Whereupon, at 11:32 a.m., the Subcommittee was adjourned.] 

(179)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND MEMBER, SUBCOMMITTEE ON

THE CONSTITUTION


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ADDITIONAL INFORMATION SUBMITTED BY MATHEW D. STAVER, FOUNDER AND

CHAIRMAN, LIBERTY COUNSEL, INTERIM DEAN, LIBERTY UNIVERSITY SCHOOL OF LAW


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ADDITIONAL INFORMATION SUBMITTED BY MARC D. STERN, GENERAL COUNSEL, 

AMERICAN JEWISH CONGRESS


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PREPARED STATEMENT OF THE ALLIANCE DEFENSE FUND CONCERNING H.R. 2679, 

THE ‘‘PUBLIC EXPRESSION OF RELIGION ACT OF 2005’’


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PREPARED STATEMENT OF STEVEN W. FITSCHEN, PRESIDENT,

THE NATIONAL LEGAL FOUNDATION


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LETTER FROM RUTH FLOWER, LEGISLATIVE DIRECTOR, FRIENDS COMMITTEE ON

NATIONAL LEGISLATION, TO THE HONORABLE STEVE CHABOT, DATED JUNE 19, 2006


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LETTER FROM WADE HENDERSON, EXECUTIVE DIRECTOR, AND NANCY ZIRKIN, DEPUTY

DIRECTOR, LEADERSHIP CONFERENCE ON CIVIL RIGHTS, TO MEMBERS OF THE JUDICIARY COMMITTEE, DATED JUNE 21, 2006


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LETTER FROM CAROLINE FREDRICKSON, DIRECTOR, AMERICAN CIVIL

LIBERTIES UNION DATED JUNE 22, 2006


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LETTER FROM THE AMERICAN CIVIL LIBERTIES UNION, ET. AL., DATED JUNE 22, 2006


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LETTER FROM THE REVEREND BARRY W. LYNN, EXECUTIVE DIRECTOR, AMERICANS

UNITED FOR SEPARATION OF CHURCH AND STATE, TO CHAIRMAN CHABOT AND

RANKING MEMBER NADLER, DATED JUNE 22, 2006


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Æ


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