House Resolution 2679, (h/t DailyKos) which went to the floor of the House on September 14, is an attempt to effectively repeal a part of the First Amendment to the Constitution - the part prohibiting governments from establishing religion - without going through the effort of officially repealing this part of the Bill of Rights.

The mechanism for doing this is to make it so expensive to enforce the Establishment Clause of the First Amendment that religious majorities can establish whatever religion they please, even turning the country into a Theocracy, without any real fear that the citizens might interfere through the courts.

Specifically, the bill will prohibit people who have proved that they have suffered a violation of their rights from collecting attorneys fees.

There is a long established moral principle that states that whenever one person wrongs another, that the person who does the wrong is responsible for all of the costs he inflicts on his victims, to the degree that he is able to compensate the victim for those costs.

To illustrate this principle, imagine that you are driving your family to church one Sunday morning. I, who have had too much to drink, run through a red light and smash into your car. Also, let us assume that I am very wealthy - that I have vast resources at my disposal - resources, say, to match those of a government entity who can simply tax the citizens if it wants more money.

As a principle of morality, I owe you compensation for all of those damages and all expenses that you are forced to endure, that you would not have had to suffer if I had not smashed into your car. I am morally responsible for those costs to the degree that I am able to pay. If I do not pay, that further compounds the injustice I already inflicted on you by making you the victim of my recklessness.

Also recall that it is a basic element of moral principles that they are supposed to be universal. Any person who attempts to write a "special exception" into morality for themselves is treating others unjustly and immorally. The fact that this case concerns the victimizing others by hitting them with an automobile, and the original case concerns victimizing others by attempting to coerce them into participating in somebody else's religion, is materially irrelevant when we consider the fact that moral principles must be universal.

Now, let us assume that we live in a society that accepts the moral principles the Republican members of the sponsors of this bill (specifically, Rep. John Hostettler [R-IN]) would have us live under. Let us assume that, even though I am clearly guilty, I refuse to admit guilt and to pay you any compensation for having caused that accident. Therefore, you decide to take me to court.

If you win, I will still appeal the decision. If there is any area of contention, I will pay my lawyers to argue the point. I will do all of this because, under the principles of Hostettlerian Morality, even if you can get me to purchase you a new car and cover the costs of lost work and medical bills, you will never be permitted to recover your legal costs. Those costs will have to come out of your own pocket. All I have to do is drive the costs up high enough, and at some point you will not be able to afford to pursue the case any further. In fact, all I have to do is threaten to do this to you, and this should be sufficient to prevent you (if you are at all rational) from even trying to file that lawsuit against me.

Similarly, HR 2679 is designed to prevent people from filing lawsuits to enforce the Establishment Clause of the First Amendment. The establishment clause will still exist, but for all practical purposes it would have been repealed because it would have been made unenforceable.

A very wealth person who has a hundred thousand dollars at his disposal may still decide to demand that his rights not be violated. Anybody who does not have a hundred thousand dollars to spare effectively has no rights. Hostettlerian Morality says that the extremely rich (the top 1%) have rights, the rest of us do not.

One may be tempted to argue that this is enough - that when the rich protect their rights that the decisions will also protect the rights of the poor. However, this is not the case.

To see this, imagine that there is a Constitutional Amendment in place that bans cruel and unusual punishment. Imagine that some town has established a speed limit on the highway going through town, and those who violate the speed limit are burned slowly over a low fire until they die. Two people get caught speeding through town. John Smith is very wealthy, while Jack Smith makes $50,000 per year, has a mortgage, a few credit card debts, and is saving to put his kids through college.

Let us also assume that the U.S. Congress wrote another Hostettlerian Morality into law by stating that anybody convicted a crime who wishes to argue that their punishment is cruel and unusual must pay a $250,000 filing fee when he files the case - in cash, up front, with no possibility that he will ever get any of this money back.

John Smith can afford the $250,000 fee, so he pays it. His case goes to the Supreme Court, who decides that slow roasting a man to death for the crime of speeding is "cruel and unusual punishment".

Jack Smith is still no better off. The city can still go ahead and kill Jack Smith. Who is going to stop him? If Jack Smith wants to file a lawsuit saying that the decision reached in John Smith vs. State should be applied to his case, he is still going to have to come up with his own $250,000. Which he does not have.

Under Hostettlerian Morality, only the very rich have rights. The rest are rendered powerless against any state encroachment into their own rights.

It is true that Hostettlerian Morality is only being applied to the Establishment Clause of the First Amendment. However, to say that this is a defense of the moral principle involved is to say that murder is permissible if one only murders people over 6'10" tall. The argument establishes that Hostettlerian Morality is unjust in principle. Injustice cannot be turned into a just action simply by saying, "We are not going to be victimizing everybody, just these people over here."

Hostettler says that the purpose of this legislation is to:

eliminate the chilling effect on the constitutionally protected expression of religion by State and local officials that results from the threat that potential litigants may seek damages and attorney's fees.

This is another fatal flaw of Hostettlerian Morality.

We hold that the drunk driver who plows into another driver's car victimizes the person whose car he hits. He wrongs that person. Because wrongs are . . . well . . . wrong! we do not want drunk drivers even taking a risk that they might violate the rights of others. It does not matter that drunk drivers can sometimes drive home safely. It is still patently absurd to argue that we must "eliminate the chilling effect on drunk drivers who can reach home without having an accident that results from the threat of potential litigants may seek damages and attorney's fees that result from the off chance of an accident."

Hostettlerian Morality is patently unjust and evil. It is an attempt to grant one group of people with power and money - the power of government and the money derived from the power to tax - to impose their will on others while denying others the ability to protect themselves. The government, under this law, gets the power to violate the First Amendment with impunity. All they need to do is be willing to drive up the court costs to a degree that no citizen would be able to afford to defend his rights. It will be sufficient, I this case, for the government to simply announce a willingness to do so to ensure that no violation of the Establishment Clause will be challenged in court.

It is particularly ironic that this is being done by people who claim that their faith gives them a particular incentive to be treat others fairly, justly, and morally. It turns out to be yet another case where militant theocrats use God's name to justify the victimization of others.

Alonzo Fyfe
The Atheist Ethicist