Written by Don Byrd
It’s something I wonder every month or so, after reading about yet another case of a local government attempting to defend a religious monument against claims that it violates the separation of church and state. In cases where the law seems clearly against them, how do they justify spending significant sums of taxpayer dollars in likely losing litigation?
In other words, Andrew Seidel has some thought-provoking answers in a new commentary for Religion News Service. It often starts, he says, with the promise of free legal counsel from a nonprofit organization like the American Center for Law and Justice (ACLJ). Seidel describes the experience of one Michigan town facing a religious liberty challenge to a large memorial cross on public land.
The ACLJ promised the town that it would defend the massive cross shrine on public land from any legal challenge, pro bono. “We do not charge you a penny,” said the ACLJ’s attorney to the township’s governing board at the last meeting.
Pro bono? Not even a penny? The old adage holds: This sounds too good to be true. And it is.
ACLJ might not charge the Michigan township, but fighting a losing legal battle could still cost taxpayers a pretty penny, hundreds of thousands of dollars actually. That’s because the town is still liable to pay the other side’s attorneys’ fees when it loses. This makes sense; governments shouldn’t be defending obviously unconstitutional actions in court, and the fee-shifting is meant to dissuade them from doing so.
In some ways, I recognize that one person’s “obviously unconstitutional action” is another person’s principled stand defending an important constitutional right. Church-state battles tend to turn on factual distinctions that invite competing interpretations. I mean, one Ten Commandments monument can be lawful on one courthouse lawn, while another identical monument is struck down on another courthouse lawn. The surrounding circumstances matter, so these disputes aren’t always as easy to predict as they sometimes appear.
At the same time, often in monument disputes, the case for maintaining a clearly religious symbol on government property produces some disturbing and contorted reasoning. After all, if you have to justify a large memorial cross by arguing that it’s not a religious symbol, what’s the point? And is it worth absorbing these often enormous costs to the taxpayer?
Unfortunately, as Seidel goes on to describe, local governments often struggle to pay the resulting legal bills, which send them into “dire financial straits.” And what becomes of the “pro bono” legal advocate organization that rallies a community behind the cause? Well, read the whole thing.
