Sotomayor and Religious Freedom

JUST LAW AND RELIGION By Michael Kessler And so the circus begins. Sonia Sotomayor was nominated by President Obama to … Continued


By Michael Kessler

And so the circus begins.

Sonia Sotomayor was nominated by President Obama to fill the vacancy created by Justice David Souter’s impending retirement. She would become the sixth Catholic on the Court. What does her nomination mean for religious freedom?

Even before the nomination, attack ads were ready to roll, with charges that she was a “liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written.” Others contend that her record “raises serious questions about the issue of legislating from the bench.” The Republican National Committee accidentally unveiled their rather muted talking points, stating generically that they “do not view this nomination without concern,” and then reciting a standard litany of terrible things a liberal appointment “could” bring about.

Do these people actually read any of the nominee’s opinions before writing these ad hominem attacks?

Of course, there is her now infamous remark at a 2005 Duke University Law School conference that “the Court of Appeals is where policy is made.” Is this a smoking gun proving that she’s a judicial heretic?

Balderdash! Such charges are nothing more than a laughable attempt to seize upon and reshape a banal statement of utter fact about how Circuit Courts function. The context was a student question about the differences between clerkships at the Federal District (trial) Courts and the Appeals Courts and whether coming from an Appeals Court enriches one’s chances for employment.

Her full quote was: “All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made,” she said, laughing a bit through the next part: “And I know this is on tape and I should never say that because we don’t make law. I know. OK, I know. I’m not promoting it. I’m not advocating it. I know.”

Of course she recognized that one way of interpreting that falls into sounding like she is saying the judges make law. Not the best way to tell the student that Appeals Court clerkships often lead to academic and policy jobs because of the highly theoretical nature of the appeals they hear.

But the simple fact is that the legislatures–Congress most of all–send forth laws that are not clear. That’s one reason why lawsuits often happen: two or more parties interpret statutes differently. Similar lawsuits happen before different federal trial judges, and these courts reach different conclusions, in which one judges says the law means x, and another judge interprets that the law means y. It is then up to the appellate courts to sort out this tangled thicket and determine for all of the District judges in the Circuit that the law actually bears one unified meaning. When the Circuits split, then the issue may get taken up by the Supreme Court and conclusively decided for every court in the land. This appellate level sorting allows efficiency among the courts in judging further disputes and it lays down clear signposts to businesses, institutions, and citizens about what the law actually means. Thus, “policy is made.” If Congress doesn’t like this fact, they could endeavor to do their jobs better and craft laws that are less ambiguous. What shouldn’t happen is labeling a judge as an “activist” for simply describing what EVERY appellate judge does every day.

And in the area of religious free exercise and establishment clause challenges one can see just how much Judge Sotomayor is not an “activist.” One case in particular exemplifies her respect for precedent and the rule of law, while at the same time manifesting a deep concern for preserving religious liberty. (For a complete run-down of her religion cases, see the always precise and informative Howard Friedman at Religion Clause).

The case, Flamer v. City of White Plains, 841 F. Supp. 1365 (1993), is a 1993 decision then-District Judge Sotomayor crafted granting an Orthodox Rabbi’s request to display a lighted menorah in a town park in White Plains New York. The parks in which the Rabbi requested to place the menorah had played host to a variety of “expressive conduct” over the years, from political rallies, cancer walks, music concerts, and lighted Christmas trees regularly installed by private parties. The only time requests to engage in expressive conduct were denied appeared to be for reasons of public safety.

In this instance, according to the trial record, a number of Jewish leaders had informed members of the city council–even submitting letters read into the council minutes–that an “overwhelming majority of the Jewish community” did not support the display. The town denied the Rabbi’s request–without stating a clear reason for their denial. They passed a resolution that stated the “City affirms its historical position that there be no fixed outdoor display of religious or political symbols in the City’s parks.”

Judge Sotomayor correctly determined that the past practice of the City clearly indicated the parks in question were “traditional public forums,” which meant, according to Supreme Court precedent, that such parks have been “held in trust for the use of the public…have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” As such, the city’s denial of the Rabbi’s temporary display, without other compelling reasons of public safety, was a “content-based regulation of speech,” and impermissible under the First Amendment.

In short, this means that since the city had opened these parks and always treated them as an open forum for citizens to engage in all kinds of expressive conduct, the city cannot choose among particular viewpoints and allow most forms of religious and political expression, but prohibit this particular Rabbi’s menorah. In a traditional public forum, there can be reasonable time, manner, and place restrictions (such as prohibiting open fires, limiting the timeframe of loud concerts, and restricting large crowds that overwhelm the safe park capacity), but the determination about what is allowed cannot be based on the viewpoint expressed by the permit-seeker. If the Rabbi’s menorah might be unsafe and electrocute someone, the city could deny it (or require it be made safe before display). But deny it merely because they thought it was “unusual” (as the Park Commissioner called it), or because other members of the Jewish community objected, was unconstitutional. The City can’t choose sides in sectarian battles or limit speech based on content.

The City further claimed that allowing the Rabbi to display the menorah would amount to an endorsement of his message, impermissible under the Establishment Clause. Judge Sotomayor expressed sympathy for that view, but stated unequivocally that the display was not the city’s but the rabbi’s. Again, following precedent, Judge Sotomayor said: “as the Supreme Court’s public forum analysis instructs…, traditional public forums, unlike nonpublic forums, are intimately linked in the public psyche with public expression. Consequently, expressive activity in these quintessential public forums is viewed, and should be viewed, by reasonable observers as that of private speakers, not the government.” Since the menorah would be viewed by others as the Rabbi’s expression, the City is relieved of any Establishment Clause concerns.

Thus Judge Sotomayor’s decision carefully wove together the preservation of every individual’s freedom to express their religious views in the public square and the assurance that the government not act in ways that limit religious expression. This ought to warm the hearts of every American concerned about religious freedom.

Perhaps more importantly, even a quick read of her opinion will reveal a judge who is hyper-attentive to the rule of established law. Sotomayor’s is not an opinion carving out a liberal agenda on the basis of her own policy agenda. Rather, in this opinion, like many others she wrote, she carefully reviews the relevant and long-established precedents and applies them to the facts before her.

That is precisely what some conservative commentators are claiming she does not do. Perhaps if they read her opinions without the preconceived notion of a liberal, activist judge clouding their vision, they might see a judge that actually does respect the rule of law as well as one of our most cherished freedoms.

Dr. Michael Kessler is Assistant Director of the Berkley Center for Religion, Peace, and World Affairs and Visiting Assistant Professor of Government at Georgetown University.

By Michael Kessler | 
May 27, 2009; 1:50 PM ET

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Just Law and Religion

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