John Hostettler, the always entertaining Congressman from
Using the language of victimization that Christians on the far right are increasingly employing, the bill’s supporters describe the measure as necessary to “protect religious liberty.”
Hostettler and his cohorts conveniently ignore a few not-so-minor points. The omissions strongly suggest that what they really want is a country where the government gets to decide whose religion is acceptable. (They seem to take for granted that government will choose theirs.) After all, the fees they want to eliminate are only awarded to “prevailing parties,” that is, to people who have won their lawsuits by proving in court that the government broke its own rules, overstepped its bounds and violated their rights.
There are several reasons for the laws that allow citizens to recover their attorney fees when they successfully sue the government for civil rights violations. A civil rights action is different from an action between private parties. In a private lawsuit, if you win, you can make the other guy compensate you for whatever damage he caused. In a civil rights suit, a plaintiff who wins doesn’t necessarily even get compensated for whatever harm he has suffered. Sometimes, he doesn’t get anything but a promise by the government agency to stop doing something illegal. But his willingness to hold government responsible is an important tool of public accountability.
If citizens have no real remedy when government misbehaves, government will misbehave. The Bill of Rights and other civil rights laws aren’t self-enforcing. They are worthless on a dusty shelf in someone’s law library—it takes legal action to make the Establishment Clause or Free Exercise Clause real. And the people who need protection from government are rarely the rich; they are often people who could never afford an attorney on their own.
It’s hard enough to find a lawyer willing to fight city hall “on contingency” when there is the hope of being paid if they win. Ironically, if fee recovery were eliminated, the only lawyers who would ever bring these cases—other than those hired by the wealthy—would be public interest law firms like the ACLU, which gets most of its support from private donations, or groups like the American Center for Law and Justice, affiliated with Pat Robertson’s Christian Coalition.
Fee reimbursement laws weren’t passed to benefit lawyers, or the ACLU or the ACLJ—they were passed to help their clients. Congress recognized that government is more likely to run roughshod over the rights of the “little guy,” than it is to mess around with the well-to-do and privileged. The fee statutes level the playing field by allowing us all to keep government in line.