Liberal law prof (almost a redundancy, I know) Erwin Chemerinsky argues that by denying plaintiffs’ attorneys (from the ACLU and Americans United, for example) the ability to collect their fees if they win a case under the Establishment Clause, the Public Expression of Religion Act would deprive Americans of the opportunity to vindicate their rights:

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.

Aren’t there generous secularists and separationists who are willing to bankroll such challenges? There are plenty of good things, like school choice, which could be funded by government, but often aren’t. In some cases, the philanthropic sector has picked up the ball. Why not let Establishment Clause challenges be another arena in which we rely on the generosity (to use the word generously) of those who wish to pursue that particular agenda?

Chemerinsky assumes that the sorts of challenges he wants to encourage are always meritorious, but Congress--entitled, as it is, to its own assessment of the judiciary’s record in these matters--begs to differ. The legislative branch is certainly free to decide whether or not encouraging such suits, and implicitly approving of the string of decisions that inspired, and will be extended by, them, is a desirable goal of public policy. To my mind, little or no harm would come from reining in the separationist litigators and, in effect, compelling them to choose their cases more carefully, since they’re spending their own--or rather their donors’--money.

A last thought: if Chemerinsky is so interested in defending the litany of rights currently upheld by the courts, would he be willing to support an analogous mechanism for discouraging frivolous lawsuits? Suppose the plaintiffs lost. Could it be possible under law for the defendants to recover their court costs? Turnabout would seem to be fair play. (Perhaps this is already possible. If so, I ’m hoping that one of our attorney readers will set me straight.)