A local attorney and the American Civil Liberties Union won’t give up their legal fight to remove the Mount Soledad Cross from government property if Congress nullifies their right to collect legal fees in the event of a victory.

The Expressions of Religion Protection Act, passed by the House of Representatives yesterday, would prevent those who successfully challenge the legality of religious displays on government property – specifically under the Constitution’s Establishment Clause – from collecting legal fees.

The Establishment Clause bans Congress from enacting laws regarding the establishment of religion or prohibiting the free exercise of religion.

The bill’s author, Rep. John N. Hostettler, R-Ind., said the ACLU and similar groups are “profiteering” as well as seeking “to remove every vestige of our religious heritage from public places,” according to the Washington Post.

The federal government currently reimburses the legal fees of those who successfully sue it.

James McElroy, the attorney who has waged a 17-year legal battle to remove the cross from city, and now federal, land, said he’ll continue to pursue the case even if the bill is signed into law.

“I’m never going to pack up and go home,” McElroy said before pointing out that he offered to waive his right to collect legal fees three years ago if city would settle the case.

Kevin Keenan, executive director of the local ACLU, said financial gain isn’t a motivating factor in his organization’s decision to challenge a recent transfer of the cross and surrounding property from the city to the federal government.

“After being around for 86 years we have some resources and this case is important enough that we wouldn’t back out of it if we couldn’t recoup our costs,” Keenan said.

Both McElroy and Keenan criticized the legislation as a last minute attempt by congressional Republicans to appease their conservative Christian base before the November elections. They also took issue with the idea that the bill will only limit attorney’s fees in Establishment Clause cases.

“What this bill says is if the government discriminates on the basis of race or sex we are still going to pay the legal fees, but if they discriminate on religion we are not,” McElroy said.

Many congressional observers believe it is unlikely that the Senate will pass the legislation before it adjourns at the end of the week.


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