William & Mary Bill of Rights Journal


In this Essay, Steven Fitschen, President of the National Legal Foundation, argues against the Supreme Court's 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 future

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