Religion in the Public Schools after Santa Fe Independent School District v. Doe: Time for a New Strategy

In this Essay, Steven Fitschen, President of the National Legal Foundation, argues against the Supreme Court\u27s ruling in Santa Fe Independent School District v. Doe, and calls for a new strategy in litigating similar cases. Fitschen proposes a thirty-year plan because he believes that the current Court composition, which he sees as driven by personal predilections rather than by precedent, was partly responsible for the outcome of Santa Fe. Fitschen argues that the current Court has largely ignored Establishment Clause precedent, and that any new, effective strategy will be slowly implemented The thirty-year plan calls for less perfunctory reliance on free-exercise-as-free-speech strategy, and asserts that the Establishment and Free Exercise Clauses are really two sides of the same coin, rather than in tension with each other. Fitschen also draws upon historical arguments that although establishment of religion is prohibited by the First Amendment, acknowledgment, accommodation, and even encouragement of religion is not. The thirty-year plan will be successful when everything short of establishment passes constitutional muster, and when mere acknowledgment, accommodation,and encouragement are not falsely characterized as establishment by opponents. Fitschen is hopeful that a reminder of historical reality, as articulated by Justice Story, will make the thirty-year plan a feasible new strategy for the futur

From Civil Rights to Blackmail: How the Civil Rights Attorney\u27s Fees Awards Act of 1976 (42 U.S.C. § 1988) Has Perverted One of America\u27s Most Historic Civil Rights Statutes

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\u27s 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\u27s 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\u27s 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

Religion in the Public Schools after Santa Fe Independent School District v. Doe: Time for a New Strategy

In this Essay, Steven Fitschen, President of the National Legal Foundation, argues against the Supreme Court\u27s ruling in Santa Fe Independent School District v. Doe, and calls for a new strategy in litigating similar cases. Fitschen proposes a thirty-year plan because he believes that the current Court composition, which he sees as driven by personal predilections rather than by precedent, was partly responsible for the outcome of Santa Fe. Fitschen argues that the current Court has largely ignored Establishment Clause precedent, and that any new, effective strategy will be slowly implemented The thirty-year plan calls for less perfunctory reliance on free-exercise-as-free-speech strategy, and asserts that the Establishment and Free Exercise Clauses are really two sides of the same coin, rather than in tension with each other. Fitschen also draws upon historical arguments that although establishment of religion is prohibited by the First Amendment, acknowledgment, accommodation, and even encouragement of religion is not. The thirty-year plan will be successful when everything short of establishment passes constitutional muster, and when mere acknowledgment, accommodation,and encouragement are not falsely characterized as establishment by opponents. Fitschen is hopeful that a reminder of historical reality, as articulated by Justice Story, will make the thirty-year plan a feasible new strategy for the futur