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The Public Expression of Religion Act of 2005: A Bill That Is Intended to Eviscerate the Establishment Clause

Thursday, Jun. 29, 2006

Recently, Rep. John Hostettler (R-IN) introduced the Public Expression of Religion Act of 2005 (PERA). PERA enjoys the support of forty-five other sponsors (all Republicans save one), and of the American Legion. James Madison, however, must be rolling over in his grave.

PERA is a creative attempt to forestall Establishment Clause attacks on public displays of religion - from statues and plaques of the Ten Commandments placed at courthouses, to government placement of religious symbols such as crosses and menorahs in public areas. Indeed, PERA's language goes so far that it could even protect government-sponsored sectarian prayers from Establishment Clause challenge.

If enacted into law, PERA would forbid awards of damages, and awards of attorneys' fees in cases involving the Establishment Clause. As a result, such lawsuits would end, at most, in injunctions - and plaintiffs' lawyers would have to accept the cases on a pro bono basis, or not at all.

An Attempt to Cripple Crucial Supreme Court Precedent - and the Constitution

To give Rep. Hostettler his due, at least he seems to understand that Congress may not, as a body, overrule decades of the Supreme Court's jurisprudence. That is a big step beyond the Congress's largely failed attempt to institute its own standard under the Free Exercise Clause with the Religious Freedom Restoration Act. The Court held RFRA unconstitutional in Boerne v. Flores, and now Congress seems to have wised up

Now, instead of overruling decisions they dislike, the members of Congress who are behind PERA have decided to make it very difficult for a citizen to bring a lawsuit attacking government action that establishes religion. It is the vanishingly rare individual who can afford federal litigation on his or her own, which is what this bill would effectively require. After all, the ACLU and similar groups can take only so many cases - especially if even the strongest constitutional challenges, and the most outrageous violations, cannot result in damages or attorneys' fees awards.

Obviously, the religion Hostettler and the other PERA supporters intend to establish is Christianity. Once again, a majority wants to water down disestablishment principles to squelch a minority. (As of 2001, about 80% of Americans identified as Christian, though that encompasses many denominations, while only a little more than 5% identified themselves as believers in other religions. About 15% identified themselves as atheist, agnostic, or having no religion.)

In other words, these Representatives want to cement the establishment of their own religion - already commanding the belief of a supermajority of Americans -- as dominant via the force of the government, and the force of law. This is an old story, and it puts these representatives in a light that makes them look very much like the Puritans at the time of the Constitution's Framing who expelled dissenting religious believers (like Baptists and Quakers), because they did not believe what the established church required.

To be blunt, this is yet another bill pandering to the Christian religious right, who persistently but misguidedly insist that the separation of church and state is anti-Christian. That, of course, is historical revisionism at its worst. As I explained in a previous column, the disestablishment principles embodied in modern Establishment Clause cases were derived from the principles of a variety of Christian organizations. So to argue that the separation of church and state is hostile to Christianity is to say Christianity is hostile to itself - an argument ad absurdum, to say the least. .

Part of a Larger Movement to Get Financial Benefits for Religious Entities

The big picture here is very informative if one wants to understand what is really happening. As I discussed in my last column, there has been an intense drive by religious entities, especially recently, to obtain financial benefits from the government..

The Religious Land Use and Institutionalized Persons Act (RLUIPA), for instance, gives religious landowners a new right to sue local government, attorneys' fees to do it, and a legal tool that permits them to use less expensive land for more intense uses. In short, it directly enriches religious entities. The flipside of this strategy is represented by PERA - which takes damages and attorneys' fees (and thus, effectively, the right to sue) away from those who would enforce the Establishment Clause prohibition on religious entities co-opting the government to deliver their message. So much for level playing fields.

Surely, it is clear that this is an era of religion's power grab, and as with all power ploys, it always pays to look for the money trail. The Clinton Administration set the stage for the transfer of wealth to religious entities, and the Bush Administration has finished the construction of a new Age of Establishment.

The primary problem here - and it is a serious problem - is a lack of determined and principled leadership at the federal level. We need national leaders who will actually follow through on their pledge to uphold the Constitution -- even when those constitutional principles are not popular. And we need leaders who are more devoted to the integrity of our representative democracy than they are to their own political future.

It wouldn't hurt to have leaders who are fully versed in history as well, and who actually know what the Framers believed as they drafted the Constitution, and later, the Bill of Rights. The Framers, unlike many Twenty-First Century Christians, remembered well the terrors and injustices of established (yes, Christian) religion in Europe.

Why the American Legion, Of All Groups, Surely Should Not Support This Bill

The greatest irony in the PERA story, though, is the American Legion's fervent support for PERA. We have American soldiers in Iraq at grave risk because religious factions are at war there. They are fighting those who would impose their religion on not just Iraq, but the entire world. They are fighting, in other words, against the establishment of religion. The war on terror is a war against those who believe in a global establishment.

When these American soldiers fight for America, they are not fighting to preserve Christianity. They are fighting to preserve the one constitutional system that has made it possible for religion - including many Christian sects -- to flourish by keeping the state from being religion's servant.

For the American Legion to line up behind a bill that undercuts this structural, core constitutional principle is ironic in the worst way. Our soldiers deserve better. If we are not going to stand by our Constitution at home, why should they fight for it abroad?

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005). Her email address is

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