From Bob Park’s science bulletin What’s New:

1. DOVER PAYBACK: HOUSE VOTES TO LIMIT THE ESTABLISHMENT CLAUSE.

The nation was distracted this week: the leaked Intelligence Estimate on Iraq, a terrifying new report on global warming, continued high gas prices, a White House lobbying scandal that grew from “a few” contacts with Jack Abramoff to 485, not to mention the news that two men have stepped forward claiming to be the father of Anna Nicole Smith’s baby. That allowed the House to quietly pass H.R. 2679, the “Public Expressions of Religion Protection Act of 2006,” with scarcely a mention in the media. The bill would prevent plaintiffs from recovering legal costs in any lawsuit based on the “establishment clause” of the First Amendment, which of course only happens when the court finds the plaintiff’s Constitutional rights have been denied. The Senate is expected to pass a companion bill, S. 3696. Congress cannot simply abridge the Bill of Rights. Maybe they think the Supreme Court is stacked. Or maybe it’s the election.

That’s right: Congress has just ruled that a plaintiff cannot recover legal costs even when they have won their case, and this applies specifically to the separation of state and religion. This sort of bill is usually only enacted in response to a growing abuse of legal privileges that were not anticipated by earlier legislators. In this instance, there has only been one lawsuit in recent memory, the Dover case, which was won so conclusively by the plaintiffs that there can be no consideration of it being an abuse of the legal system. In fact, Dover represents exactly what the establishment clause is intended to do: protect the community against individuals misusing public positions to further their personal religious agendas.

It is easy to see it in Bob Park’s terms: as payback. But I don’t believe that for a moment. The Bush administration is currently buried under a mountain of important issues from the Iraq War to the economy that it needs to devote all its energies to evading. I find it hard to believe that Congress has time to deal right now with payback over a single lawsuit in a Pennsylvania courtroom that has not been appealed. It seems to me, cynical as I am, that if Congress isn’t responding to a plethora of “establishment clause” cases, then it fully expects to.

Remember, the bill says that plaintiffs cannot recover their legal costs if they are successful. This is a message bill. The message to those who believe in secular education is: even if you prove your case in a slam dunk, you’re going to have to pay for the privilege of doing so. What it’s saying to religious activists is: go ahead, ignore your constitutional duties on establishment issues; the worst that can happen is you have to go to court, in which case a number of conservative legal bodies like the Thomas More Centre are likely to provide your defence pro bono, and you won’t run the risk of paying your opponents’ costs even if you’re contemptuously in the wrong. This bill isn’t about payback, it’s about securing the future of constitutional abuse.