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Jim Gerlach

The Public Expression Of Religion Act Of 2005
A bill Intended to eviscerate the Establishment Clause

-- Prof. Marci A. Hamilton

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 this act unconstitutional in Boerne v. Flores, and 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 American Civil Liberties Union 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. 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.

Professor Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University