Sec. 1983 Establishment Claims

[Doug Laycock]

        I am not aware of any significant damage awards in Establishment
Clause cases.  I don't think there have been many claims; many civil
liberties lawyers reason that damage claims irritate the judge without
producing recoveries (generally and not just in Establishment Clause cases),
and that the real point is the injunction.  There was a case in Iowa back in
the early or mid-80s involving a Jewish school teacher who was emotionally
distressed by a religious school assembly.  He got $300.  He also lost his
job and filed a Title VII retaliation claim; no results were ever reported.

        There probably have been some substantial fee awards, and I don't
doubt that government lawyers worry about that.  Local officials will risk
fees for things they really want to do; not for things they don't care much
about; they will cite the fear of fees as an excuse for not doing things
they don't want to do anyway.

        The bill is clever; it would mean that the Establishment Clause
could be enforced only by altrustic volunteers.  But it is stupid, even from
the perspective of the religious right, which has many civil liberties
claims of its own.  Religious liberty for me but not for thee is not an
appealing platform.



Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-471-3275 (voice)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu