Vanderbilt Law Review

First Page



In 2004, the American Civil Liberties Union ("ACLU") threatened to sue the city of Redlands, California, if it did not remove a small cross from its city seal.' The cross represented the city's religious heritage and its history as a city of churches. Instead of facing the possibility of litigation and the more daunting risk of losing in court and being forced to pay the ACLU's attorneys' fees in addition to its own, the Redlands City Council agreed to change the seal. The City of Redlands not only could ill afford the risk of paying the ACLU's attorneys' fees; it also had insufficient municipal funds to replace the seal. Therefore, the city had to improvise. Blue tape covered the cross on many city vehicles, and some city employees used electric drills to "obliterate" the cross from their badges.

After its success in Redlands, the ACLU turned its attention to the Los Angeles County seal, which contained a small cross symbolizing the Spanish missions that played an integral role in the county's history. One newspaper columnist observed, "The cross was about one-sixth the size of a not-very-big image of a cow tucked away on the lower right segment of the seal, and maybe a hundredth of the size of a pagan god (Pomona, goddess of fruit) who dominated the seal." The county's attorneys advised that a loss in court would be costly-the county would be responsible not only for the cost of changing the seal and its own legal fees, but also for the ACLU's legal fees. In what was an unpopular decision, the county supervisors voted to redesign the seal. The transition to the new seal is costing the county around $1 million and entails replacing the seal on approximately 90,000 uniforms, 12,000 vehicles, and 6,000 buildings. Events similar to these are taking place around the country. Some Americans view these events as victories over governments endorsing a particular religion in violation of the First Amendment's Establishment Clause and attempting to force religion upon their citizens. Others believe that these events are examples of communities being coerced into abandoning all acknowledgment of their religious values and heritage. Debates over this issue have increased recently, especially surrounding the Public Expression of Religion Act ("PERA"), which was introduced in Congress in response to events such as those that took place in Redlands and Los Angeles. The U.S. House of Representatives passed PERA on September 26, 2006. The House forwarded the bill to the Senate, where it was referred to the Senate Committee on the Judiciary and currently awaits action. PERA would amend federal statutes to provide that plaintiffs who challenge government action as violating the Establishment Clause would not be able to recover attorneys' fees. This change would be a departure from current federal law and practice, under which plaintiffs who are successful in a lawsuit brought under the Establishment Clause may (and almost always do) recover attorneys' fees from the defendant government, whether local, state, or federal. PERA's proponents argue that the current fee-shifting scheme, combined with the unpredictability of the Supreme Court's Establishment Clause jurisprudence, allows plaintiffs to force governments to accede to their demands and abandon all public acknowledgment of religion by greatly increasing the risk involved in defending Establishment Clause claims in court.

Like PERA, this Note recognizes that plaintiffs have an inordinate amount of leverage when they bring an Establishment Clause claim. Part II of this Note examines the two main factors contributing to this leverage. The first factor is the unsettled state of Establishment Clause jurisprudence. Part II first introduces the debate concerning the original purpose of the Establishment Clause. It then discusses the many tests the Supreme Court has applied in Establishment Clause cases and examines two recent cases that scholars cite as exemplifying the muddled state of Establishment Clause jurisprudence, Van Orden v. Perry15 and McCreary County v. ACLU.16 Part II then examines the second factor, 42 U.S.C. ?? 1983 and 1988, the federal fee-shifting statutes that enable successful plaintiffs in Establishment Clause cases to receive attorneys' fees from the defendant government.

Part III of this Note introduces PERA. It discusses the background of the bill, presents its provisions in detail, and examines the debates surrounding the bill. Part IV critically appraises PERA and the solution it proposes. Although this Note concludes that PERA is fundamentally flawed, it also asserts that a legitimate aim can and should be extracted from the bill. This aim is to protect a government's ability to defend the acknowledgment of its religious heritage. Part IV demonstrates that the Supreme Court's Establishment Clause jurisprudence allows for the acknowledgment of religious heritage and explains why this acknowledgment needs protection. Part IV concludes by examining why PERA's approach to this problem is flawed.

Finally, Part V proposes an alternative to PERA that would make it easier for governments to defend acknowledgments of their religious heritage without reducing the incentives for governments to avoid behavior that clearly violates the Establishment Clause. This alternative exempts governments from having to pay a plaintiffs attorneys' fees in Establishment Clause cases unless the challenged conduct violates clearly established law. This "clearly established law" standard is similar to the standard used in the Supreme Court's qualified immunity jurisprudence, which this part outlines. Part V concludes by examining how courts could apply this standard in Establishment Clause cases.