Freethought Today · September 2017

Published by the Freedom From Religion Foundation, Inc.

Taxpayers on hook for ‘pro bono’ lawsuits: By Andrew L. Seidel

Religious law firms cost taxpayers millions, even if they claim to be free

By Andrew L. Seidel

Kentucky taxpayers owe the ACLU nearly $225,000 because Kim Davis, the Rowan County clerk, wanted to use her public office to impose religious law. In the name of her god, she wanted to deny LGBT couples a right guaranteed to them by the Constitution and upheld by the U.S. Supreme Court. Davis wanted her religious belief to trump our secular law.

From the beginning, the case was insurmountably and fatally defective. As Columbia Law School professor Katherine Franke memorably put it, "The claim she's making is a clear loser. It's a political claim, it's not a legal claim. That's why she lost on the district level and the circuit level and she will continue to lose. She's fighting for justice on the level of religious law. But we don't live in a theocracy." How is it that the taxpayers are paying so much for a case that was a foregone failure?

Davis took her unprincipled stand after the Supreme Court decided the Obergefell marriage equality case on June 26, 2015. A conservative Christian law firm, Liberty Counsel, then wheedled its way into Davis' case.

Liberty Counsel, run by Mat Staver, fundraises by scaring the credulous with stories of Christian persecution in America, as a glance at its budget for "email alert" and "printing and mail" services shows. Liberty Counsel is not alone — it's joined by a who's who of organizations with names that could've been plucked from a dystopian Orwell novel: Liberty Institute, the Alliance Defense Fund, now operating as Alliance Defending Freedom, the American Center for Law & Justice, among others.

A cash cow for firms

No doubt Davis has been a cash cow for Staver & Co. According to Liberty Counsel, it represented Davis "at no charge," or, as other reports said, "pro bono." But that waiver only applies to Liberty Counsel's legal fees, and I'd wager they made far more fundraising off Davis than they would have made from charging her an hourly rate. Liberty Counsel's fee waiver does not apply to the other side, to the ACLU, and — this is the critical point: The other side can recover fees from the government when it wins.

Here's another example. FFRF sued the Chino Valley School Board for its unconstitutional prayers, bible reading and proselytizing. We did this after many attempts to resolve the case without going to court, but the Pacific Justice Institute, a West Coast version of Liberty Counsel, offered to represent the school board pro bono. This free lunch proved too tempting. But when the board lost in the district court, the court awarded FFRF more than $200,000 in attorney's fees and court costs.

So all the talk of pro bono representation by groups like Liberty Counsel is a bit disingenuous. They create and foster a public impression that court battles to privilege religion will cost the taxpayers nothing and give the firms a gloss of magnanimity and generosity. In some cases, these groups seem to deliberately conflate pro bono representation with no cost to the taxpayers. In one of the cases enumerated below — a case in which the government had to borrow money to cover the costs — a local paper reported that "Staver stated that the battle is costing Pulaski taxpayers 'zero' dollars, since Liberty Counsel is working 'pro bono' for the county governments." In reality, they're fighting losing cases so that they can fundraise on the Christian persecution narrative and pass on all the risks and costs of litigation to the taxpayers.

Staver is desperate to keep this strategy hidden. So desperate, in fact, that he actually tried to blame the $225,000 bill, which was a direct result of his firm extending a losing legal fight, on anybody else, no matter how far-fetched he sounded:

"If, at the end of the day . . . the state of Kentucky has to pay for attorney's fees, whose responsibility is that? It's not Kim Davis, it's not Rowan County, it's not the current legislative body . . . it's certainly not Gov. Matt Bevin. . . . It is the former liberal Democratic governor, Beshears [sic] . . . Had he [provided a religious liberty accommodation to Kim Davis, this case never would have gone anywhere. Had he done that, Kim Davis never would have spent any time in jail. Had he done that, the ACLU would never have had a case because it would have ultimately been derailed at the very beginning. But because he was so ideologically sided with, blinded with if you will, the same-sex marriage agenda and he wanted to force Kim Davis down this path, he would not lift a finger to give a religious liberty accommodation."

There are really only two people to blame: the clerk who refused to do her job and vowed to discriminate — and Staver. He dragged out — is still dragging out — a losing case that allows his group to fundraise and further a mythical narrative of Christian persecution in America (where it is the majority religion and is grossly over-represented at all levels of government).

Squandering taxpayer funds

The costs that are passed on to taxpayers because of this strategy can be huge. Here are a few that can be verified with publicly available information:
• $1,000,011 wasted defending "intelligent" design.

Kitzmiller v. Dover Area School District.

No court has ever upheld teaching creationism or any of its creatively rebranded offspring in public schools. But the Thomas More Law Center represented the Dover School District "pro bono" to defend the teaching of "intelligent design" in public school. The school board lost and had to pay out $1 million dollars in legal fees and $11 in damages ($1 for each plaintiff). The plaintiffs' attorneys, Pepper, Hamilton, kindly cut their bill down from the $2,067,226 to which they were entitled.
• $1,000,000 squandered by trying to hold public school graduations in a church.

Does v. Enfield Public Schools.

The school district unconstitutionally held graduations in churches and insisted on litigating the case, causing the plaintiff to accrue "about $1 million" in legal fees. The Enfield Board of Education eventually decided to settle the lawsuit after losing a preliminary injunction and was responsible for those fees, though it did not disclose exactly how much it paid. The American Center for Law and Justice represented the school board after the chair "was contacted by the ACLJ and they wanted to represent [the board] pro bono."
• $500,001 consumed for a city to fly a Christian flag.

In a desperate attempt to keep a Christian flag flying on city property, the city of King (N.C.) turned to the Alliance Defense Fund, which encouraged the city to adopt a policy it promised to draft pro bono. Once the issue was taken to court, however, the city of King quickly racked up more than $50,000 in legal fees and costs and ultimately settled with the plaintiffs, agreeing to pay $500,001 to plaintiffs.

• $451,662 blown in a misguided attempt to display the Ten Commandments.

McCreary County, Ky. v. ACLU of Kentucky.

This case involved two different Ten Commandments displays in Kentucky county courthouses. Pulaski County lost and paid the ACLU $231,662. The county was forced to take out a loan to pay the legal fees. Mat Staver of Liberty Counsel represented the county. Previously, "Staver stated that the battle is costing Pulaski taxpayers 'zero' dollars, since Liberty Counsel is working 'pro bono' for the county governments."

Staver also represented McCreary County. Fundraising efforts, including sending requests to "national religious organizations, such as Focus on the Family and the Trinity Broadcasting Network" and local Christian radio broadcasting, raised less than 10 percent of the more than $220,000 McCreary County owed.
• $248,000 drained to pray before board meetings.

Joyner v. Forsyth County, N.C..

Forsyth County was unconstitutionally opening board meetings with sectarian prayer. This constitutional violation cost the county $248,000. The group now known as Alliance Defending Freedom was "representing Forsyth County pro bono in the case."

Liberty Counsel and groups like it are not looking out for the taxpayers' interests. In Santa Rosa, Fla., a school district was found liable for attorney's fees after the ACLU challenged some of its practices under the Establishment Clause. The court entered a consent decree between the ACLU and the school board. Several school employees intentionally violated the terms of that decree. Liberty Counsel represented those employees and when invited to work with the ACLU and the school to make the terms of the decree more clear, Liberty Counsel "rejected these invitations out of hand," increasing costs and causing litigation to drag on for years. In the end, the school district owed the ACLU over $150,000 and the ACLU agreed to waive its fee. Liberty Counsel did not waive its fee, requiring the school to pay $265,000.

Religious law firms like Liberty Counsel exist to push their own agenda. They don't care about the costs that are passed on to public schools and local taxpayers.
The Kim Davis case is the perfect example. Taxpayers and their elected officials need to be leery of groups that come along offering to defend losing cases.

Attorney Andrew L. Seidel is FFRF's new Director of Strategic Response.

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