Wednesday, Oct. 4, 2006 | San Diego Attorneys Jim McElroy and Kevin Keenan might not feel like reflecting on their new found fame, or is it infamy? A bill in the House and another in the Senate have been working their way through Congress. The House bill passed on Tuesday.

If either HR 2679 or S3696 ends up as law, it will forbid attorneys from collecting fees or expenses when they sue the federal government in cases involving establishment of religion, even if they win the case. The best example is San Diego’s “cross case” waged by Jim McElroy on behalf of Phil Paulson.

Kevin Keenan, executive director of the ACLU of San Diego and Imperial Counties is also involved. The ACLU has filed its own case, naming the SECDEF, Donald Rumsfeld, himself. It is on behalf of the Jewish War Veterans of the United States of America. Both McElroy and the ACLU will get the short end of the stick if either bill becomes law.

Ordinarily, that wouldn’t bother me. My conservative streak says that I don’t want to help foot the bill for another guy’s lawsuit. And before, you ask, I do have a conservative streak. I just control it.

On the other hand, there is no justice in the constitution if it’s out of reach for those who need it. If you’re unable to sue, you’re screwed. Look at the current case of Phil Paulson. Even though he and Howard Kriesner won the first round without legal representation, the city has been appealing ever since. The legal costs of fighting those appeals have been enormous.

Mostly they were incurred by Jim McElroy. I called Jim. He said that even if he wanted to do the work pro bono, his regular expenses would still continue. They have run into the hundreds of thousands of dollars so far.

He emphasized that this bill specifically only rejects claims against the establishment of religion clause in the First Amendment. What a nice way to enforce your own beliefs, simply put dissent out of reach of those who need it most!

He and his client, Phil Paulson, claim it is not a suit just of one person against a religious symbol. It is a suit on behalf of Americans against establishing one religion. The implications go far beyond whether some folks feel good looking up at a religious symbol on a mountain.

“As it is we have more religious diversity than any other country, and it’s because of the First Amendment,” says McElroy.

Others disagree, the American Legion for example. In the Legion website, National Commander Thomas Bock wrote, “. . . It (the proposed law) will remove the chilling effect on constitutionally protected free expression of religion in public areas by ending court-ordered attorney fees, or damages, in Establishment Clause cases – but only those cases.”

And ain’t that just dandy. People with grievances of all sorts against the government can likely get an attorney to represent them, but if that grievance is against the 600 pound gorilla in our living room – that untouchable thing called religion – a litigant is just plain out of luck.

Only institutions as large as the churches themselves could afford to go to court. And don’t bet against that either. Once we’ve put enough crosses on mountains and copies of the Decalogue in our court rooms, we can claim this is a Christian nation. Or maybe I’m late with that prediction – seems I’ve heard that phrase a lot lately.

What we haven’t heard a lot of so far is which particular religion will reign over America. Those who think it’ll just stay as a Christian nation without big churches wanting to rule the roost just haven’t looked at their history books close enough.

Why a law that singles out just one provision of the Bill of Rights? McElroy put it best, “It’s election-year politics. That’s exactly what it is. It is trying to invigorate the Christian right for the election…”

And what a great way to do it, put the First Amendment out of reach of all but the richest of our citizens!

Keith Taylor is program chair for the San Diego Association for Rational Inquiry. He can be reached at

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