Undermining the Bill of Rights

In a disturbing turn of events that has been largely ignored by the media, Republicans in the House of Representatives have pushed through a bill that would seriously undermine enforcement of the constitutionally required separation of church and state (the Establishment Clause). The Washington Post reports:

A federal statute, 42 United States Code section 1988, provides that attorneys are entitled to recover compensation for their fees if they successfully represent a plaintiff asserting a violation of his or her constitutional or civil rights. For example, a lawyer who successfully sues on behalf of a victim of racial discrimination or police abuse is entitled to recover attorney's fees from the defendant who acted wrongfully. Any plaintiff who successfully sues to remedy a violation of the Constitution or a federal civil rights statute is entitled to have his or her attorney's fees paid.

Congress adopted this statute for a simple reason: to encourage attorneys to bring cases on behalf of those whose rights have been violated. Congress was concerned that such individuals often cannot afford an attorney and vindicating constitutional rights rarely generates enough in damages to pay a lawyer on a contingency fee basis.

The recently passed statute creates an exception (prohibiting reimbursement of attorneys) to this law specifically in cases regarding the separation of church and state, while leaving the reimbursement system in place in cases dealing with any other constitutional right. One must ask exactly why it is necessary to create an exception (which will financially exclude most cases from ever being presented) solely for cases dealing with issues of church and state, unless proponents of the bill intend to initiate programs that violate that specific constitutional right.

Since attorneys are only reimbursed if their client is found to have suffered a violation of their constitutional rights, there is no reasonable argument that this bill is aimed at preventing frivolous lawsuits. The only possible purpose this bill could serve is to establish strong disincentives to keep people from seeking justice when their constitutional rights are infringed by state establishment of religious programs. No doubt proponents of the bill perceive a need to discourage what they see as overly-stringent interpretation of the Establishment Clause by the courts. It is, however, extremely dangerous -- and a serious encroachment on the powers of the judicial branch -- for Congress to intentionally circumvent constitutional protections by impeding the judicial process.

One can hope that respect for constitutional provisions will prevail and this bill will be killed in the Senate. If it becomes law it will not only constitute a serious violation of the Establishment Clause, it will set a dangerous precedent for Congressional interference with the right of citizens to seek justice when their rights are violated. Especially in the current atmosphere of fear and growing government power (due to the ongoing "War on Terror"), such a precedent could open the door to much more grave suppression of constitutional rights.