William & Mary Bill of Rights Journal


For fourteen years, members of Congress repeatedly introduced legislation directed at a single subject. A key underpinning for the necessity of the legislation was provided by the opinions of two Supreme Court justices. Yet, for the past nine years, Congress has gone silent on the same topic. This Article argues that it is past time for Congress to reconsider this topic, and that if it will not do so, the Supreme Court can rectify the situation without engaging in judicial legislation.

Perhaps the best view of Congress's efforts can be seen by examining the high-water mark of those efforts, which occurred in 2006. In that year, it was the belief of 247 United States representatives that "the Establishment Clause [of the United States Constitution] does not secure an individual right." Therefore, they believed attorney's fees should not be available in Establishment Clause cases under 42 U.S.C. §§ 1983 and 1988, the federal civil rights and fee shifting statutes that make such awards possible.

Similarly, by 2006, two Supreme Court Justices had indicated that the Establishment Clause did not protect individual rights. Indeed, the 247 Congressmen explicitly relied on the words of one of those justices, Anthony Kennedy, for this proposition; and Justice Thomas had by then made the even more emphatic, unequivocal statement that "[t]he Establishment Clause does not purport to protect individual rights."

And yet, here were are, fourteen years later, and attorney's fees are still being awarded in Establishment Clause cases under 42 U.S.C. § 1988. This Article will argue that this practice should stop, either by amendment of 42 U.S.C. §§ 1983 and 1988 or through a pronouncement by the Supreme Court that Establishment Clause claims can no longer be brought under 42 U.S.C. § 1983.