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Judge Sonia Sotomayor on Church/State Issues

President Barack Obama has announced his nomination for the Supreme Court. Judge Sonia Sotomayor is a mixed bag. She is a well known political moderate and as the first Latina nominee, she puts the Republican is a tough place since they would like to gain support within the Latin American community. She has been described as an intellectual and a bit of a bully on the bench like Supreme Court Judge Scalia. Those last two traits are in my opinion positive traits. I am bothered that she is more moderate than I would like. Let’s look at some of her case history.

On the plus side, in Pappas v. Giuliani she sided with Free Speech even though that speech was bigoted and racist. I have always held that popular speech doesn’t need protection, but unpopular speech does. In this case, Judge Sotomayor and I are in agreement. Since speaking out against religion is generally considered to be unpopular, Judge Sotomayor seems to be the type of Judge who will protect our Free Speech to be critical of religion.

In Rosario v. Does, substitute teacher Sonia Rosario spoke for several minutes about her religious views in the classroom. She told her students that according to the Bible, “Jesus was the son of God” and that “one must come through Jesus to get to God.” Rosario also approached each student, placing her hand on their foreheads, and asked God to protect them and their families. In this case, Judge Sotomayor ruled in favor of the school that fired her. This too is a ruling which I support and agree with. It shows that Judge Sotomayor understands that schools are not to be a forum for religious proselytizing by those in authority.

Friedman v. Clarkstown Central School District dealt with science and medicine. In this case, Judge Sotomayor ruled that the plaintive did not meet the requirements for religious exception for vaccine immunization. Here she pulled off a classic Supreme Court maneuver of not really dealing with the issue, but still managing on ruling in the case. If this case is any indication, she will certainly fit in on the High Court, but at least she supported science somewhat.

Now I will discuss the cases in which I had issue with her rulings like in Hankins v. Lyght. In this case the Methodist Church wanted to force the retirement of John Paul Hankins. While Hankins had reached the retirement age of 70, he did not wish to retire. Judge Sotomayor ruled against Hankins and stated that the Court should “not [to] apply to employment suits brought against religious institutions by their spiritual leaders.” In other words, she was basically stating that because of the Separation of Church and State that the Church does not have to comply with the law and can pretty much do whatever it wants. In my opinion, that sets up a dangerous precedent for the future and I hope that she does not keep that reasoning if she makes it to the High Court.

In Flamer v. City of White Plains, the city of White Plains denied permission to display a menorah in a city park in light of a city council resolution barring fixed outdoor displays of religious or political symbols in parks. Rabbi Flamer’s suit challenged the resolution as unconstitutional. Judge Sotomayor agreed and struck down the resolution as a content-based regulation of speech that discriminated against religious speech. Here the soon to be Supreme Court Justice and I disagree. Because the resolution barred all religions it does not show a bias or favoritism of any religion. The City was not prohibiting free speech on private property based on content. As the park is public owned land, such a restriction aims to keep the wall of separation rather than turn the public property into a battleground for religious proselytizing. This sends the dangerous precedent, which could give religion a blanket invitation to use all public property as a de facto Church. It also stands in contradiction to her position in Rosario v. Does.

The Republicans are already calling her an “Activist Judge” which I define as any Judge who they don’t agree with. I do not think Judge Sotomayor is an activist at all and to date, her two cases, which slightly dealt with the Abortion issue, she sided more on the anti-choice side than the pro-choice side. The Republicans aren’t looking for a “Non-activist Judge” as they claim, but rather I think that the Republicans are looking for Agenda Judges like Chief Justice Roberts, Justice Alito, and Justice Scalia.

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