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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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  • http://www.myspace.com/rox1smf Rox

    Thanks for putting that all in one place, Staks, I haven’t made up my mind yet about this nomination (not that I have a damned thing to say about it, mind you!). The right-wingers have painted her as extreme left and she’s not anywhere NEAR it. Has the country and the Court really moved so far right that she’s “moderate?”

    • http://www.dangeroustalk.net Staks

      Considering that Roberts, Scalia, Thomas, and Alito are far right and there is no one on the far or even near the far left on the Court, I think that says something. Stevens is the closest thing to a liberal on the court and he is pretty moderate. Sotomayor is looking pretty moderate to me too.

  • http://www.dangeroustalk.net Staks

    I want to hear everyone’s up or down vote on this and why.

  • Soul Rebel

    Justices Roberts, Thomas and Scalia are staunch catholics who often represent the hardcore conservative wing of the SC. Kennedy is also a catholic and with Sotomayor that’ll be 5 catholics on the bench with a conservative majority. I’m more confident that Sotomayor will represent a more centrist view…. but, the church is always putting alot of pressure on catholic lawmakers to review and overturn Roe vs Wade.

    • http://www.myspace.com/rothtalltales Tralf

      Jesus H. Christ! The SCOTUS has more Catholics than a papal shindig! All religion is crazy, but Catholicism is crazy plus the bells and whistles. Where else do you get to EAT simulated HUMAN FLESH and DRINK simulated HUMAN BLOOD? Cannibalism meets vampirism with a side order of child fucking. Yowza!


  • http://www.myspace.com/theperplexedobserver TPO

    Since the announcement of Obama’s first Supreme Court Nominee this morning, I have seen many posts by liberal and secular organizations urging support for Sonia Sotomayor’s appointment. Conservatives, fundamentalists and Republicans in general are already lining up to campaign against her basically because Obama picked her. The opposition to her appointment by these reactionaries and ideologues is to be expected and most of their arguments against Sotomayor are ludicrous.Some secular groups like the Center For Inquiry, which I support, offer cautious support for her nomination:

    Amherst, N.Y. (May 26, 2009)—The Center for Inquiry, a group committed to fostering a secular society, has today congratulated President Obama for his nomination of Judge Sonia Sotomayor to replace Justice David Souter on the United States Supreme Court.Arguing that the ideological balance on the High Court must be preserved, Paul Kurtz, chairman and founder of the Center for Inquiry, is calling upon members of the Senate Judiciary Committee to carefully determine Sonia Sotomayor’s views on church-state separation. Said Kurtz, “While we support her nomination and recognize her distinguished record, we are concerned that her views on the separation of church and state are unclear. We are urging for due diligence.” Kurtz says that it is imperative that the president’s choice to replace Souter be as sympathetic to religious liberty as Souter himself was. “He was a crucial member of the bare five to four majority that, by a thread, has preserved the essence of government neutrality in matters of religion.”Ronald A. Lindsay, the Center for Inquiry’s President and CEO, pointed out that there are already four members of the Court, who, if they obtained one more vote, would reverse more than 62 years of precedent and reinterpret the First Amendment to allow open discrimination against nonbelievers, as long as no branch of government betrayed any favoritism for one religion over any other.“We therefore urge the Senate Judiciary Committee to carefully question Judge Sotomayor so they can determine her judicial philosophy on the Establishment Clause,” said Lindsay.

    While groups like Planned Parenthood, which I also support, are not so cautious when urging support:

    You’ve probably already heard the news: President Obama has nominated Judge Sonia Sotomayor to replace retiring Justice David Souter on the U.S. Supreme Court. Over the coming days and weeks, we’re going to be hearing a lot about Judge Sotomayor, both from her supporters and her critics. If you turn on your TV or open up a web browser, you’ll see it’s already started.That’s why I wanted to let you know what Planned Parenthood has said about Judge Sotomayor. We believe that this historic nomination sends a strong signal that President Obama understands the importance of ensuring that our Supreme Court justices respect precedent while protecting our civil liberties.Judge Sotomayor has vast experience in nearly every aspect of the law, having served as a big-city prosecutor and a corporate litigator, a federal trial judge on the U.S. District Court, and an appellate judge on the Second Circuit Court of Appeals.What our nation needs from our Supreme Court Justices is a deep understanding of the law and its impact on everyday Americans, and a commitment to the protection of our individual liberties. We look forward to Judge Sotomayor bringing these qualities to the Supreme Court.There is no doubt that Judge Sotomayor’s story is an inspiration to all. Her nomination as the first Hispanic woman justice reminds us that with hard work, dedication, and commitment all things are truly possible in America.Please keep an eye out for future updates from Planned Parenthood on this historic nomination.

    That being said, liberals, secularists and free speech advocates should not be so quick to give Sotomayor a free pass. I for one am not so sure I will be able to support her nomination.Science fiction author Paul Levinson makes some good points about a recent free speech ruling she was a participant of in his blog Sotomayor’s Anti-First Amendment Decision Should Disqualify Her for Supreme Court.

    …she has one major, very bad decision on free speech and press to her discredit, which should give everyone who values these freedoms in our society serious cause for concern about Sotomayor’s possible nomination to the High Court.The decision came from Sotomayor’s Second Circuit Court last May, regarding Lewis Mills High School student Avery Doninger. While running for Senior Class Secretary, Ms. Doninger found reason to object to the school’s cancellation of a “jamfest” event, and characterized those who scotched the event as “douchebags” on her off-campus LiveJournal blog (she also characterized a school official in that same blog posting as getting “pissed off”). The school officials, in turn, took umbrage, prohibited Avery from running for Class Secretary, and disregarded the plurality of votes she received, anyway, as a write-in candidate. Avery sued the school officials, and the Federal District Court supported the school. Avery appealed to Sotomayor’s Second Circuit Court.After acknowledging the Supreme Court’s 1969 Tinker decision, which held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Sotomayor’s Court proceeded to affirm the District Court’s ruling – that is, Sonia Sotomayor and her colleague justices upheld the high school’s right to punish Doninger for her off-campus speech. Their reasoning was that schools have an obligation to impart to their students “shared values,” which include not only the importance of free expression but a “proper respect for authority”.

    Also, her record on the establishment clause is not so good either:Why the White House Will Promote Sotomayor’s Religious Liberty Record

    “…the White House is already spotlighting Sotomayor’s record on religious liberty cases, where her rulings are likely to please religious conservatives…It’s the kind of church-state separation opinion—protecting the church from the state, as opposed to the other way around—that will please religious conservatives…”

    I think Obama could do better…TPO

    • http://www.dangeroustalk.net Staks

      I think he could do better too. The Republicans are attacking her as if she were a progressive and she isn’t. At the end of the day, it doesn’t matter what they think, she will most likely be confirmed. So if the Reps. are going to attack no matter what and the nominee is going to be confirmed no matter what, why not actually pick a Progressive.

  • http://www.myspace.com/trailrunner1983 Mike

    NO WAY!

    Judge Sotomayor will allow her feelings and personal politics to stand in the way of basic fairness. In a recent case, Ricci v. DeStefano, Sotomayor sided with a city that used racially discriminatory practices to deny promotions to firefighters. The per curiam opinion Sotomayor joined went so far out of its way to bury the firefighters’ important claims of unfair treatment that her colleague, Judge Jose Cabranes, a Clinton appointee, chastised her.

    • http://www.dangeroustalk.net Staks

      Someone has been watching too much Fox News, where more Americans get their news than definitely should.

  • http://www.myspace.com/trailrunner1983 Mike

    I don’t watch FOX news, ASSHOLE!

    • http://www.dangeroustalk.net Staks

      Well you got their talking points from somewhere.

      • marr

        Believe it or not, a lot of us are upset about reverse discrimination. It is NOT the happy way to end discrimination. It is the “let’s do it the hard way, and with lots of hard feelings and making lots of hate along the way” version of integration.

        If you want to end discrimination, do whatever has to be done to make minorities able to compete on the same level as everyone else. Don’t just rig the results against the whites. Those of us who are not descended from slaveholders are getting sick of being forced to heft a disproportionate share of the payback. If you must have revenge instead of equality, why don’t you find a way to pay back the former slaves by putting the burden on the rich guys whose great-granddaddies really did abuse blacks?

        • http://www.dangeroustalk.net Staks

          Again, someone should STOP watching Fox News and STOP listening to Rush Oxycontin. I am not even sure I am supporting Sotomayor, but I do have to call out BULLSHIT when I see it. How is what she said any more “reverse-racist” than Judge Alito??? Please see that video clip below from TYTs. Also, Fatty Limbaugh didn’t take the rest of what she said into account.

    • http://www.dangeroustalk.net Staks

      • Tomkinson

        Ahh so because Alito doesn’t understand the judicial oath then it follows that people should support another person with an even more serious misunderstanding of a jurists’ role. Perfectly sensible, what a compelling argument. I opposed Alito’s nomination in part because of this stupidity, although I did support Roberts. Obama opposed them both, I wonder why?

        And as for the “you watch Fox News” rejoinder to the initial post. That’s no argument nor is it even necessarily true. That talking point has been reported by MSNBC (weeks before and now after Sotomayor’s nom), the PBS Newshour, Bill Maher, and oh yeah ALL THE MAJOR PAPERS including those bastions of conservative thought the New York Times and the Washington Post. Oh and so has the one about Alito!!!

        Your responsibility, if you choose to defend her, is to explain why a candidate clearly chosen in part on the basis of identity politics, who has made some incendiary remarks regarding identity politics, who made a recent decision that speaks directly to the issue of identity politics should get a free pass from someone who is concerned as much about that issue as you are with Church/State issues.

        I haven’t made up my mind yet, I will wait till the hearings when she can defend herself. She is probably more biased than I am comfortable with & that First Amendment case is truly disturbing, but shes shown a penchant for narrow rulings which is a plus. Although one is not in a position to make the most broad & binding rulings until on the High Court. My biggest problem with her is that based on what I’ve seen so far I don’t think she’s smart enough for a position on the Supreme Court.

        • http://www.dangeroustalk.net Staks

          First, as I have stated before I HAVE NOT MADE UP MY MIND YET on Sotomayor. But I will call out Bullshit then I see it. You called her Identity Politics. Where is your evidence for that? Because she is Latino she MUST be Identity Politics? Is she qualified (i.e. does she have the necessary judicial experience)? The answer to that is an obvious yes since she has more judicial experience that ever other SC Judge. You then questioned her intelligence yet she graduated at the top of her class at Princeton and was an editor of the Yale Law review. So what is your evidence that she isn’t “smart enough?” My issue with her is that I am confused about why she has ruled the way she has ruled on the cases above. I would like an explanation. Personally, I think Obama could have done better. There are four far right agenda judges on the court and I think we need someone who supports freedom, liberty, and fairness to balance them out. So while I think Obama could have done better, I still may support Sotomayor if she can explain her reasoning on these cases to my satisfaction. But to claim that she is not smart enough is just ridiculous.

          • Tomkinson

            When you can predict the outcome of something well in advance of the proceedings (thereby insuring falsification); and that outcome is predicated on Latina femaleness, and it comes true, you can accept corroboration of the theory said justice was picked in part on gender/race grounds i.e. identity.. Study some philosophy sometime.

            As for intellect I don’t accept grades as a measure of intelligence except as a limiting case. I.e. someone can’t get all A’s and be retarded. But getting great grades is no indicator of superior intelligence beyond the 1/50 mark.

            Sotomayor was the editor of a law journal, so was Obama. Obama has been the only major law editor in HISTORY not to be published, why? And president of the law journal, which Obama was, is an elected position not an academic one. As for Sotomayor:

            Which legal opinion or idea of hers really made you think differently about an issue or reframed and redefined an issue more compellingly than before, so much so that she’s worthy of the most exclusive Bench?

            • http://www.dangeroustalk.net Staks

              Tomkinson, you are a sexist racist. Your claim is because YOU predict that she will be confirmed solely based on those two factors and she will be confirmed, therefore she MUST have been confirmed solely on those two factors. The fact is that unless Obama nominated his secretary (like Bush did) anyone he picks would probably be confirmed based solely on the fact that there are 59/60 Democrats in the Senate. Your claim that her race and gender are the sole factors has no basis in fact. Second, the fact that she is a moderate and not a super liberal limits the Republican opposition. That again has nothing to do with race or gender.

              Now, you claim that she isn’t smart. Where is your evidence for that. While I agree with you that grades are not necessarily correlated with intellect, the fact is that 8 times out of 10 they are, So while it is possible for a stupid person to get straight A’s, it generally is the exception not the rule. So where is your evidence that she isn’t smart? What do you base such a statement on? ?It seems tome, and I could be wrong, that you are basing that statement off of one of two things. Either based of far right talking head talking out of his or her ass, or solely based on her gender and race. The first makes you stupid and the second makes you a sexist racist.

              While I acknowledge that Sotomayor is qualified, I still don’t know if I will support her. Her gender and race have nothing to do with my support or lack of support. For me, the determining factor is how she defends her case record to the Senate and how she views Church/State issues in light of the Constitution.
              PS, “Study some philosophy sometime.” I think I did just that. The State of Pennsylvania considers me a Master Philosophy and yet I still learn new things all the time (just not from you).

              • Tomkinson

                I’m neither sexist nor racist (unlike Sotomayor) & nothing I’ve written could possibly be misconstrued as such by anyone with even a minimal comprehension of English.

                I said nothing about her confirmation regarding identity politics I wrote of her NOMINATION. Before she was picked it was obvious Obama was going to pick either a female or a Latino and most likely a Latina killing two birds with one stone. I told this to people the very day I heard Souter was retiring. In fact during the Kentucky Derby which I & some of my friends bet on I suggested we wager on who Obama’s nom would be and I said “I’m picking Sotomayor!”, I knew nothing of her other than that she was a Latina on the appeals court.

                I’m not psychic, Obama is just predictable and never passes up a chance to submit symbolism for substance which is EXACTLY why YOU think he could have done better. Obama’s not alone either; Harriet Myers was nominated partly because she was a woman and Thomas was nominated partly because he’s black, even the moron Cornel West acknowledges that.

                And I never claimed she isn’t smart I said she isn’t smart ENOUGH. She’s probably more intelligent than at least 90% of the population maybe even 98% but we are talking about the most exclusive judicial club on Earth where her rulings will have lasting and perhaps profound effects on our lives. I ask you again:

                Which legal opinion or idea of hers really made you think differently about an issue or reframed and redefined an issue more compellingly than before, so much so that she’s worthy of the most exclusive Bench?

                You didn’t answer because there aren’t any. Oh and I’m not alone in thinking this http://newsbusters.org/blogs/p-j-gladnick/2009/05/27/liberal-jonathan-turley-sotomayor-lacks-intellectual-depth liberal Law Professor Jonathan Turley agrees oh and here’s another liberal Jeffrey Rosen’s take http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085 now YOU tell me why Obama picked her.

                • http://www.dangeroustalk.net Staks

                  This was not the first time her name was floated as a possible he was put on the short list by the media of someone Obama might nominate. Many people thought that Obama would nominate her because out of that short list, she was the most moderate and she had a compelling personal story. Obama is not a progressive Democrat despite what the Right Wing media tried to claim during the election. He has always pushed for moderates and non-confrontational approaches. I knew this already and wrote about it before in my blogs. The media knew it too. Sure there were woman’s groups and Latino groups pushing for representation. But every group was pushing for representation… including me. I was pushing for Obama to pick a secular scientist. Obama might have looked at the short list of candidates that were floated to him and saw their qualifications. Out of that list, he picked Sotomayor. Why? I don’t know because I am not Obama. But he didn’t pick her out of no where just because she was a Latino Woman. She was a qualifies judge. The claim that because she happens to be a Latino Woman therefore she must have been picked for those reasons is a racist assumption. If you had facts to back up that claim then I might concede that point, but you have not. Instead you said that it must be the case and that she wasn’t smart enough (another claim which you have presented no evidence to back up).

                  Then you ask, what case did she rule on which redefined the issue. If there was such a case, you would no know whine about her being an activist judge. What case did any of the other judges rule on which redefined the laws before they were judges? It seems to me like you are playing party politics and have drawn your conclusions before all the facts are in and without regard to the precedents set by other nominations. I will say again, that I still am not sure if I would support Sotomayor or not yet. But on the grounds of qualified, she certainly is qualified. There were no doubt others who were also qualified. I would have preferred someone with more scientific knowledge and experience. Someone who also has a more liberal view of freedom and who can be counted on to protect the wall of separation. The fact is that Sotomayor is as right wing as the Republicans are going to get from Obama and for them to oppose her merely because Obama picked her is really stupid on their part.

                  I also find it hard to believe that you looked at detailed files from all the hundreds or thousands of potential nominees and said, “Well shit, this chick is Latino, Obama will pick her.” No, it is more likely that you picked her out of a handful of potentials that the media had already vetted as probable based on their qualifications and then jumped to the sexist and racist conclusion that Obama would pick her merely because of her gender and race.

  • Pingback: Sotomayor Round-up: It’s about more than abortion « The Confluence

  • Tomkinson

    I never suggested even for a second that Obama picked her out of nowhere or that she has no qualifications or even that you will/should support her. All I said was that he picked her IN PART because of her identity and that includes her personal story. There was no way a white male was going to be chosen and if you wanna talk of short lists then tell me the white guys that were on those lists. I did a google search for “latino” “appeals court” “liberal”, and her name came up a bunch of times that’s why I figured it would be her.

    For the record I don’t believe Obama is a very progressive Democrat either (we agree on something!) I think he’s the biggest phony in American politics perhaps in all of our history. However to say that he has always pushed for moderates is wrong. http://www.youtube.com/watch?v=NTCNK7v3J6w. And what was “far right” about Roberts? Why did he vote against him?

    As for what I think of the current justices that is NO argument. Because the current jurists are mediocre then I must support another mediocrity? I will say that most of them did appear more thoughtful than Sotomayor does. There are a few examples of bright thinkers; Ginsburg had an interesting set of arguments AGAINST Roe v Wade even though she strongly supports abortion rights. Kennedy wrote many interesting defenses of Constitutional gray-areas like the right to privacy before coming to the bench. Scalia wrote pieces of fascinating historical scholarship before he was nominated. NONE of this is true, so it seems, of Sotomayor. Its not whether one agrees with her necessarily, I don’t often agree with Scalia but his arguments are almost always formidable, its whether or not shes of a certain caliber or not.

    The best comparison then is who should have been chosen. If you look at a judge like Richard Posner who has applied economic theories in highly original ways to the law or if you like someone more liberal there is Cass Sunstein who developed four categories within which to decide judicial temperament. Of course being white guys they were of course excluded from consideration.

    • http://www.dangeroustalk.net Staks

      Again, where is your evidence that “white guys” were excluded from consideration? White guys can’t have compelling stories too? You seem to be of the opinion that Sotomayor was picked solely based on gender and race and when I called you out on that, you back-peddled and then restated that same belief again without evidence.

  • Tomkinson

    “You seem to be of the opinion that Sotomayor was picked solely based on gender and race”


    Now your just making shit up.

  • http://de-avanzada.blogspot.com/ Daosorios

    I think they should pay taxes EVEN if it’s a religion!

  • frisbee_kid

    LoL! I take it that you didn’t listen very well as O’Reilly said the individual denominations, ie those churches, are a religion. IOW Christianity is the philosophy that all those denominations base their religions on (by O-Reilly’s standards)
    As for the Nativity, well that is just about one person’s birth. And that is no more a religion or promoting a religion than anyone else’s birth

  • http://www.facebook.com/john.hunter.3760 John Hunter

    I wonder what O’Reilly would do with a Non-denominational Christian church? Before I became an atheist, that was the type of church that I went to. Should they lose their tax exempt status since they are just a “philosophy” group?