If You Can't Win, Just Change the Rules of the Game!

That seems to be the strategy of the religious right in pushing this bill in the House. As noted by Ed over at Dispatches from the Culture Wars, the idea is to stop awarding attorney's fees to winners in establishment clause cases, that is to say, in cases where a citizen claims the government is violating the separation of church and state. And only in establishment clause cases. The obvious intent is to make it too expensive for people to sue the government when it violates the separation of church and state.

But what I love is this line from a guy defending the bill:

"Where violation of these clauses is truly egregious, the plaintiffs should not need a hell of a lot of legal representation." !?!?

What? This is wrong on so many levels. In essence, this guy is saying, essentially, "If you have a good case you don't need good representation."

Wouldn't it be great if that were true, but it's not. Heck, if that were true, why let plaintiffs have lawyers at all? If the violation is "egregious" enough, then any shmoe should be able to prove it in court, right? Wrong. Poor or insufficient representation can lose the best case. Take the OJ trial.

Besides, since when were only "truly egregious" violations of the constitution worthy of being corrected? Is it okay for the government to violate citizens' rights as long as they don't cackle evilly while they do it?

And, isn't the whole point of taking the government to court to prove that it committed an "egregious" violation of citizens' rights? If it were obvious beforehand what was and wasn't a violation, let alone an "egregious" one, then we wouldn't need the courts to decide these cases at all. But, lo and behold, often not everyone agrees on whether citizens' rights have been violated. And, therefore, we have a mechanism to decide who is correct: the courts. And we already have a mechanism to encourage plaintiffs to only bring cases they believe have merit to the court: the fact that only winning plaintiffs get attorney's fees.

Here's the simple fact: the religious right believes that the possibility of paying out large amounts of money in plaintiff's attorney's fees is creating a chilling effect on governments trying to get away with violating the establishment clause. Only governments trying to break down the wall of separation of church and state or trying to test the boundaries of that separation are in any danger of paying out attorney's fees in establishment clause cases.

With this bill, the right is basically claiming that the specter of large attorney's fees bills is making governments wary of violating the constitution, and they don't think governments should have to worry so much about foolish things like the Bill of Rights. But the whole point of the constitution and the Bill of Rights was that governments can and will violate the rights of the people given half the chance, and the philosophy of those documents is therefore to err on the side of protecting the rights of the citizens rather than the powers of the government. This bill seeks to stand those protections on their heads.

Of course, the right's agenda here is even less subtle than that. They don't like losing establishment clause cases, which they so often do, because they want to establish an American theocracy. This is just their way of changing the rules of the game. Or rather, since they can't win the game, this is their way of making it too difficult for their opponents to play.