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Contributors
Gary M. Galles - Contributor
Mr.
Galles is a professor of econmics at Pepperdine University. [go
to Galles index]
 Separating
Church, State and Litigation Subsidies
What's
behind all the suits...
[Gary M. Galles] 6/25/04
Despite the
outpouring of discussion following the Supreme Court’s
refusal to rule on the Constitutionality of the Pledge of Allegiance,
there still seems to be at least one question left unasked. Why
is all this litigation about “church and state” issues
taking place now?
There seems to be
a three-part answer, involving the interpretation of the 14th
Amendment, the expanding scope of government activities,
and the 1976 Civil Rights Attorney’s Fees Awards Act.
At our founding, the
1st Amendment banned a federally “established” church
and federally imposed worship. It did not apply to the states,
which were acknowledged to have powers with regard to religious
matters (evidenced by the long period states maintained established
churches after the Constitution was ratified). So only federal
activities were affected. But “creative” judicial
interpretation of the Reconstruction era’s 14th Amendment
has extended it to include the states. Now any government act
at any level with any plausible (or even implausible) connection
to religious issues can bring a 1st Amendment lawsuit.
At our founding, the Constitution also constrained the federal
government to a very limited scope, giving it little power to
infringe on religion. With the federal government not authorized
to do much, it had few margins of interaction with such matters.
But now the federal, as well as state and local, governments
have grown so extensive that they are involved in some way in
everything, including virtually every area of church ministry,
including health care, aid to the needy, education, rehabilitation
programs, etc. The result is that there are now a plethora of
government connections at multiple levels with every religious
issue. And government sponsored historical depictions involving
religious imagery provide many more connections.
Perhaps the least
known reason for the current boom in religious litigation,
however, is the 1976 Civil Rights Attorney’s
Fees Awards Act. It allowed civil right suit plaintiffs to collect
attorney’s fees. But now the ACLU and related groups, alleging
that “church and state” suits are civil rights suits,
are using that act to collect rich attorney fee settlements in
such cases (e.g., $540,000 in the Roy Moore case in Alabama and
$790,000 in the San Diego Boy Scout case). The result is that
every government body with any link to religion, however tenuous
(e.g., the Los Angeles County seal), can be turned into an involuntary
ACLU donor. And government bodies, faced with paying their own
and plaintiff’s attorneys fees out of strapped budgets,
are being cowed into submission.
Each of these three
sources of church and state litigation has a questionable pedigree.
Unfortunately, history and Supreme Court
precedents make it clear the first two won’t change anytime
soon. However, there is a way to address the third—eliminating
the shakedown power the Civil Rights Attorney’s Fees Awards
Act has given the ACLU and other organizations that bring such
suits against crosses, copies of the Ten Commandments, and potentially
every school district that requires the Pledge of Allegiance.
And at least here there is hope, as John Hostettler (R-Indiana)
has introduced H.R. 3609 to bring the current religious extortion
possibilities to an end.
With governments intertwined in everything, they cannot be kept
from impinging on religious issues. The best solution would be
to shrink the federal government back to its Constitutional duties
and rediscover fealty to the intent of the 14th Amendment (e.g.,
as exhaustively researched by scholar Raoul Berger). But in the
absence of that prospect, at least the unintended subsidy to
such litigation can be removed. CRO
copyright
2004 Gary M. Galles
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