The Cross on the San Diego Hillside

As many people know, the ACLU has fought for the removal of the cross that was erected as a war memorial to fallen comrades following World War I. The cross was originally on a privately owned hillside, but became public when the federal government declared the area a national preserve. Naturally, a cross on public land will offend someone with the ACLU, and that is cause to file a lawsuit to remove the cross. Amazingly, in my view, the courts that have heard the matter so far have both ruled for the ACLU and have ordered the cross removed.

The fact that this privately maintained cross that was originally erected on private land which has been attempted to be deeded to a private non-profit political organization to keep it from being public land (a move refused by the court) is being ordered removed is bad enough. What is worse, in my eyes, is that the taxpayers are paying the ACLU for bringing this civil rights suit on our behalf. According to the Wall Street Journal:

The ACLU, however, has made out quite nicely. Not only has it prevailed in the courts to date, but it has managed to pocket $63,000. Owing to a quirk in civil-rights law, the taxpayer once again ended up paying the ACLU for pressing a highly controversial church-state lawsuit.

The Civil Rights Attorney's Fees Award Act of 1976 specifies that anyone bringing an even partly successful civil-rights suit may have the plaintiff pay all legal fees for both parties, a discretionary award that is routinely granted. Such fee-reversals are not permitted to successful defendants. Congress meant for the law to help citizens with little or no money, but since then wealthy and powerful organizations have perverted that intention. They use the specter of massive attorney fees to force their secularist agenda on small school districts, cash-strapped municipalities and, now, veterans' memorials. According to Rees Lloyd, a former ACLU staff lawyer, such litigation is "manifestly in terrorem," intended to terrify defendants into settling out of court.

And what if the defendants don't knuckle under? For advocacy groups that use staff or volunteer lawyers as plaintiffs' counsel, the result is pure gravy. If they lose their cases, they have lost no money. If they win, defendants pay attorney's fees at the private sector's market rate, which the advocacy groups can keep for themselves.

Certainly, it is appropriate that we somehow lessen the burden of attorney fees when a civil rights suit is brought to encourage those people who are being discriminated against some help in bringing lawsuits that help amend past discrimination. But it is clear to me that this is not the type of lawsuit to which such an attorney fees clause out to apply. This is pathetic.


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