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The House of Representatives has voted to end a perverse subsidy that encourages attacks on religious freedom. Now the Senate should do the same, despite self-serving opposition from groups, such as the American Civil Liberties Union, that profit from the status quo. The Veterans’ Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religions Protection Act, passed by the House on Sept. 26 (a similar bill is before the Senate), would prohibit an award of attorney fees to plaintiffs who sue governments for “violations” of the establishment clause of the First Amendment. For just a hint of how off-base courts have misconstrued this provision, how does the Constitution’s words that “Congress shall make no law” apply to a monument sitting quietly under the stars on a courthouse lawn? Only lawyers could make a piece of granite a law. Such attorney fee awards — in essence, a litigation subsidy from American taxpayers to advocacy groups looking for a pot of gold — have perverse consequences for religious freedom. The possibility of being forced to pay six-figure sums in attorney fees deters state and local government authorities from defending themselves against legally weak attempts to drive religion from the public sphere. Faced with limited resources, local officials have too often decided that their only sensible choice is to yield to legal bullying. As Sen. Sam Brownback (R-Kan.) has said, “If a group like the ACLU wants to sue a city for displaying a religious image, it should pay the bill itself, not take advantage of a provision that was designed to reimburse poor individuals pursuing civil rights cases. . . . It is wrong for these well-heeled activist groups to abuse civil rights laws so that their legal costs are paid for by taxpayers.” The result of such bullying is to silence religious speech that is fully protected under the First Amendment. Unfortunately, this chilling effect is largely the goal: The censorship groups, such as the ACLU, that bring these suits are trying to drive religion — Christianity, in particular — out of public life. And under current law, they are exploiting fee awards to force the American taxpayer to subsidize their crusade against the public expression of Christianity and Orthodox Judaism. The law at issue is the Civil Rights Attorney’s Fee Awards Act of 1976. Originally intended to assist plaintiffs bringing civil rights claims arising from federal statutes, the act has been used by the ACLU to wage a campaign of fear, intimidation, and disinformation. It has been used to pressure public officials — even officials seeking to follow the law carefully — to bow down before the ACLU and its demand for obedience and religious cleansing or face financial ruin. And if the officials don’t cower? Then it’s a big payday for the ACLU when an activist court agrees to advance the group’s secular agenda. For example, the ACLU has been awarded in attorney fees: • $80,000 from an Oklahoma school teacher who had taught voluntary Bible classes during nonschool hours on school grounds. (A court later greatly reduced this award.) The ACLU also sued the publisher of the curriculum.

• $121,500 from the state of Kentucky over a Ten Commandments display at the state capitol. • $950,000 from the city of San Diego because the Boy Scouts were allowed to lease space (for a nominal fee) at Balboa Park. The judge had ruled that the Boy Scouts were a “religious group” because they require members to have some sort of belief in a higher power. • $1 million from the Dover, Pa., School Board, which wanted to inform its students of alternative theories of the origins of the human race. (The ACLU and its allies had initially been awarded $2 million by the court, but later they agreed to the “lesser” amount).

Thus, it is a fact, not a theory, that when public officials receive a letter from the ACLU demanding that they immediately halt any form of public religious expression, they often cave in — no matter the facts or law — rather than risk costing the city, the school district, or themselves hundreds of thousands of dollars. (Ask the countless people who have called us at the Alliance Defense Fund for help. We repeatedly hear about this reality.) Rees Lloyd is a former ACLU attorney who is involved with the Alliance Defense Fund in defending San Diego’s Mount Soledad War Memorial cross from a 17-year-long legal attack from the ACLU. As he has said, “The ACLU has perverted, distorted, and exploited the Civil Rights [Attorney's Fee Awards] Act . . . to turn it into a lawyer-enrichment act.” THE SMOKE SCREEN Of course, the ACLU doesn’t own up to the statute being a lawyer-enrichment act, if only because the American public (the vast majority of whom are religious) might question why they are funding such attacks. Instead, the ACLU carefully hides its real agenda, just as it has done since its beginning. Roger Baldwin, the founder of the ACLU, knew that if his fledgling organization was to succeed, it would have to carefully package its agenda. In a 1917 letter, he encouraged his supporters to “steer away from making it look like a Socialist enterprise. Too many people have gotten the idea that it’s nine-tenths a Socialist movement. We also want to look like patriots in everything we do. We want to get a good lot of flags, talk a good deal about the Constitution and what our forefathers wanted to make of this country, and to show that we are really the folks that stand for the spirit of our institutions.” Baldwin and the ACLU have practiced this same pattern when it comes to defending religious expression only when it advances their social and political agenda. Baldwin himself noted in 1934, “If I aid the reactionaries to get free speech now and then . . . it is only because those liberties help to create a more hospitable atmosphere for working class liberties.” Or as William Donahue of the Catholic League for Civil and Religious Rights has observed, “In other words, the occasional defense of right-wing �extremists’ (in the ACLU’s eyes) opens up the courts, thereby making it easier for the ACLU to defend its ideological kinfolk on the left.” UP CLOSE These quotations came to mind as I read the recent commentary by David Drachsler of the ACLU of Virginia defending the ACLU’s record on religious freedom. Drachsler’s remarks are just another example of the ACLU’s long track record of appearing one way from a distance but another way up close. When he started to list the “numerous” cases the ACLU has taken to supposedly nurture religious freedom, I could not help but think of the hundreds of cases where the group did just the opposite. Those far outnumber the token cases the ACLU has taken from time to time to provide cover to advance its agenda. Remember when the ACLU filed an amicus brief against Catholic Charities in California? Despite the Roman Catholic Church’s well-established religious opposition to birth control, the state Supreme Court ruled that the charity must violate its religious beliefs and provide contraceptive coverage to women as part of any prescription-drug benefit for its employees. The ACLU argued that because Catholic Charities had non-Catholic employees and ministered to non-Catholics, it must offer the coverage. In other words, if the charity didn’t minister to other groups, it might be exempt. In response, then-California Supreme Court Justice Janice Rogers Brown noted, “This is such a crabbed and constricted view of religion that it would define the ministry of Jesus Christ as a secular activity.” And then there was the ACLU suit against the Salvation Army over employment policies requiring that employees state their religious affiliation and affirm the Salvation Army’s mission. The ACLU sued because the Salvation Army receives state and city funds to help provide services for children in poverty — never mind that the services are provided with no religious strings attached. The ACLU also sued to force public school students to attend mandatory “tolerance” education about homosexual behavior, even if such classes violate the students’ (and their families’) religious beliefs. The same ACLU that demands an opt-out from the Pledge of Allegiance opposed an opt-out from training about sexual behavior. And if Drachsler and the ACLU of Virginia are so afraid of government sponsorship of a particular religion, why did they sue to stop a Christian prayer before a Fredericksburg City Council meeting, but then sue demanding that a Wiccan be allowed to pray before Chesterfield County Board of Supervisors meetings? If the ACLU were truly in favor of religious freedom for all, wouldn’t it be protecting the rights of both individuals to pray publicly? Yet the ACLU is not doing so. The reason is that the ACLU has lots of problems with Christianity, what it teaches, and what it calls on its believers to do and not to do. Most of all, the group wants to silence the public expression of Christianity. The ACLU’s director of “religious freedom” told military chaplains that if they wished to evangelize their Christian faith, they “need to find another career,” despite the fact that the final instruction of Jesus to his followers was to share his message with others. The executive director of the ACLU’s Louisiana chapter has even gone so far as to demand that Christian teachers and School Board members who pray in public settings should be jailed. This director compared these peace-loving, praying Christians to the terrorists who attacked our country on 9/11. The ACLU and its allies claim that they have defended the right of Christians to express their faith. In fact, the ACLU’s threats of lawsuits have muzzled the faithful — the valedictorian who wants to praise God in her graduation speech, the families who want to memorialize their fallen in public through a simple cross, the municipality that wishes a public acknowledgement of the community’s religious heritage, and the pastors and churches being threatened into silence about public policy. So the next time the ACLU claims that it’s the great defender of religious freedom, dig a little further below the surface. What you’ll find is that what the ACLU does is vastly different from what it preaches. As the Senate considers the pending legislation about attorney fee awards, it should not be misled about what the ACLU actually does to religion — or about whether the ACLU’s secular crusade against much of our nation’s history and heritage warrants public subsidy.
Alan E. Sears, a former federal prosecutor, is president and CEO of the Alliance Defense Fund, a legal alliance defending religious freedom, the sanctity of human life, and family values. Sears is also co-author of the book The ACLU vs. America (2005).

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