Public Expression Of Religion Act Could Untie 1st & 14th Amendments

13 02 2006

H/T: Stop The ACLU

The Public Expression of Religion Act (H.R. 2679) is legislation that could take a lot of air out of the ACLU’s balloon by removing the awarding of reimbursement of legal fees to prevailing parties in “establishment clause” cases only.

Passing H.R. 2679 could be a giant step in re-claiming the Constitution from activist judges that have been mistakenly ruling on the 1st Amendment since 1947’s Everson’s case by removing the extortion tool from the arsenal of the ACLU.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Nearly every First Amendment case appearing before contemporary courts contains a phrase declaring “the First Amendment made applicable to the States by the Fourteenth Amendment . . . ” By using this phrase, the Court is invoking its decisions from the 1940’s which reinterpreted the Fourteenth Amendment. That reinterpretation created a mechanism for the Court whereby, for the first time, it could intervene in virtually all practices of States and local communities, including religion.

The Fourteenth Amendment was a racial civil rights guarantee for slaves set free by the Thirteenth Amendment. And for seventy years following its ratification, the Courts applied it as it was intended. This is not surprising, however, for those Courts were simply following the elementary judicial principle described by Chief Justice John Marshall in McCullough v. Mayland (1819):

An exposition of the Constitution deliberately established by legislative acts . . . ought not to be lightly disregarded.

That is, determine the legislative intent for an act before applying it. The adherence to this principle was long practiced by the Courts. But as a result of separating the wording from its intent, cases such as Cantwell v. Connecticut (1940), Murdock v. Pennsylvania (1943), Everson v. Board of Education (1947), and other decisions, the Court substituted a totally revised and foreign interpretation for the Fourteenth Amendment. In those decisions, the Court decided to extend the purpose of the Fourteenth Amendment to the other numerous items contained within the Bill of Rights.

Under this reshaped purpose for the Fourteenth—and thereby under its new extended scope of power—the First Amendment would now limit every State and community, and no longer just the federal government as originally intended. This judicial activism has been termed “selective incorporation.”

What has been the effect? According to Justice William Douglas in Walz v. Tax Commission (1970), the result has been a national revolution . “Reversing the historic position that the foundations of those liberties (in the Bill of Rights) rested largely in State law, the revolution occasioned by the Fourteenth Amendment has progressed as Article after Article in the Bill of Rights has been selectively incorporated in it (the Fourteenth) and made applicable to the States.”

What makes the Court’s coupling of the Fourteenth and the First even more reprehensible is the fact that those who framed and ratified the Fourteenth made clear that it was not to be applied to the First. Notice, for example, what occurred when the Blaine Amendment had
been proposed in 1875. That proposed (and later rejected) Amendment stated:

No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof. . . . No public property and no public revenue . . . shall be appropriated to . . . the support of any school . . . under the control of any religious or anti-religious sect, organization, or denomination. . . . And no such particular creed or tenets shall be read or taught in any school or institution supported . . . by such revenue.

This Amendment would have done to the States exactly what the Court did in the 1940s; yet it was rejected by the Congress which passed the Fourteenth. The intent of the legislators who framed the Fourteenth was clear: it was not to be coupled to the First.

H.R. 2679 could be a critical step in returning power back to the Constitution the way the framers inteded. What H.R. 2679 does is remove the awarding of reimbursement of legal fees to prevailing parties in “establishment clause” cases only.

To amend the Revised Statutes of the United States to eliminate the chilling effect on the constitutionally protected expression of religion by State and local officials that results from the threat that potential litigants may seek damages and attorney’s fees.


This Act may be cited as the `Public Expression of Religion Act of 2005′.


(a) Civil Action for Deprivation of Rights- Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended–

(1) by inserting `(a)’ before the first sentence; and

(2) by adding at the end the following:

`(b) The remedies with respect to a claim under this section where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of
religion shall be limited to injunctive relief.’.

(b) Attorneys Fees- Section
722(b) of the Revised Statutes of the United States (42 U.S.C. 1988(b)) is amended by adding at the end the following: `However, no fees shall be awarded under this subsection with respect to a claim described in subsection (b) of section nineteen hundred and seventy nine.’.

Sign the Stop The ACLU Petition urging the passage of this legislation.

Locate your Congressman’s Website here.
Locate your Senators’ Websites here.




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