Erwin Chemerinsky, one of the nation's foremost constitutional scholars, pens a frightening online op-ed at WashingtonPost.com:
With little public attention or even notice, the House of Representatives has passed a bill that undermines enforcement of the First Amendment's separation of church and state. The Public Expression of Religion Act - H.R. 2679 - provides that attorneys who successfully challenge government actions as violating the Establishment Clause of the First Amendment shall not be entitled to recover attorneys fees. The bill has only one purpose: to prevent suits challenging unconstitutional government actions advancing religion. [...]
Despite the effectiveness of this statute, conservatives in the House of Representatives have now passed an insidious bill to try and limit enforcement of the Establishment Clause of the First Amendment, by denying attorneys fees to lawyers who successfully challenge government actions as violating this key constitutional provision. For instance, a lawyer who successfully challenged unconstitutional prayers in schools or unconstitutional symbols on religious property or impermissible aid to religious groups would -- under the bill -- not be entitled to recover attorneys' fees. The bill, if enacted, would treat suits to enforce the Establishment Clause different from litigation to enforce all of the other provisions of the Constitution and federal civil rights statutes.
Such a bill could have only one motive: to protect unconstitutional government actions advancing religion. The religious right, which has been trying for years to use government to advance their religious views, wants to reduce the likelihood that their efforts will be declared unconstitutional. Since they cannot change the law of the Establishment Clause by statute, they have turned their attention to trying to prevent its enforcement by eliminating the possibility for recovery of attorneys' fees.
Those who successfully prove the government has violated their constitutional rights would, under the bill, be required to pay their own legal fees. Few people can afford to do so. Without the possibility of attorneys' fees, individuals who suffer unconstitutional religious persecution often will be unable to sue. The bill applies even to cases involving illegal religious coercion of public school children or blatant discrimination against particular religions.
As Chemerinksy points out, this bill is a "disturbing achievement" for the theocrats. Theirs is a movement that is not just anti-lawyer, but decidedly anti-law. Well, anti-Constitutional law. Biblical law--or rather, their interpretation of Biblical law--is just fine.
What we see in H.R. 2679 is the conservatives' "erosion strategy" at work. It's used by radical conservatives on a myriad of issues. On abortion, for example, the tactic works to chip away at the right to choose until abortion, for all intents and purposes, becomes impractical, if not impossible. On privacy, they have nibbled away at the core protections of the Fourth Amendment, and have sought to prevent citizens from litigating domestic spying cases. And now, on the separation of church and state, the erosion strategy aims to dissuade patriots from enforcing the Establishment Clause.
Wholesale rejection of the Constitution is not possible, legislatively speaking. So the radical conservatives have taken the scenic route to destroying that document. Via bills like H.R. 2679, they seek to make fundamental constitutional mandates unenforceable. And in stripping the Constitution of its force and effect, they undermine the very notion of American democracy as well.
Which is just fine by them, since it's a theocracy they desire.
Here is the link to the roll call vote for H.R. 2679. The bill passed the House 244-173. Twenty-nine Democrats voted for the bill.
Update: To see just how disturbing this bill really is, check out the House report on the bill. Most notably, there were several amendments offered in committee to try and temper the effects of the bill. For example, the committee rejected an amendment by Rep. Nadler that would have exempted from the bill cases "involving a declaration of an official religion."
More from the report below...
Another section of the report attacks the very notion of separation of church and state. The report claims the phrase (which appears only in quotation marks throughout the report), is essentially the product of political bullying and the KKK:
While opponents of this legislation may rely on arguments that H.R. 2679 somehow violates `the separation of church and state,' it is important to keep in mind that no such phrase appears in the Constitution.
In his book entitled `Separation of Church and State,' Philip Hamburger, the John P. Wilson Professor of Law at the University of Chicago, provides an exhaustively researched account of the history of the oft-repeated notion of `the separation of church and state.'
Essentially, the phrase originated when Thomas Jefferson (who, as the Ambassador to France, was in Paris when the Continental Congress framed the First Amendment) used it in a letter intended to silence clergyman who were members of the Federalist political party who were using their sermons in the Northeast to criticize Jefferson, a member of the Republican party.
The phrase went largely unnoticed until, in the eighteenth and nineteenth centuries, there were attempts to amend the Constitution to explicitly require a separation of church and state.
Following those failed attempts, the Ku Klux Klan officially adopted the phrase as a means of articulating its disapproval of Roman Catholics in government.
One of those Klan members was Hugo Black, who later became a Supreme Court Justice and authored the Supreme Court's 1947 decision in Everson v. Board of Education, which first enshrined the concept of `the separation of church and state' in constitutional law.