Sotomayor and the First Amendment

BODY,.aolmailheader {font-size:10pt; color:black; font-family:Arial;} a.aolmailheader:link {color:blue; text-decoration:underline; font-weight:normal;} a.aolmailheader:visited {color:magenta; text-decoration:underline; font-weight:normal;} a.aolmailheader:active {color:blue; text-decoration:underline; font-weight:normal;} a.aolmailheader:hover {color:blue; text-decoration:underline; font-weight:normal;} THE BATTLE IS JOINED: OBAMA PICKS SOTOMAYOR FOR SCOTUS,
                    RIGHT DIVIDES, RELIGION & SEPARATION ISSUES

President Obama on Tuesday announced that he is nominating Second
Circuit Judge Sonia Sotomayor for a position on the U.S. Supreme
Court.

If confirmed, Sotomayor would replace retiring Justice David
Souter. She would also be the first Hispanic to serve on the high
court, and the fourth woman to hold such a position.  Obama cited
Sotomayor's impressive academic background -- she graduated Summa
Cum Laude from Princeton in 1976 and received her law degree from
Yale University in 1979 -- as one of several credentials qualifying
her
for a seat on the nation's highest bench.  Mr. Obama also pointed to
her diverse background in the legal profession noting that she has
more experience than any of the current sitting justices had when
they were nominated. Backers quickly said that she was nominated
to the U.S. District Court by President George H.W. Bush in 1991,
and enjoyed support from several key Republicans.

Barring unusual revelations or other "unknown unknowns,"
Sotomayor is likely to be confirmed according to Capitol Hill
pundits. Conservatives, though, have promised a fight in the Senate,
and were quick to brand the new nominee as a "judicial activist."
An ad hoc coalition of 14 different organizations have pooled
resources, coordinated "opposition research," and drawn up a long
list of talking points to galvanize their respective constituencies
in an effort to block Sotomayor's appointment.  Religious right
groups are entering the fray as well.  Christian Coalition founder
and televangelist Pat Robertson declared, "The Republicans have got
to take a stand on this one.  If they don't, they can kiss their
chances of ever getting back into power away."

Randall Terry, anti-choice activist and founder of Operation Rescue
told reporters that his organization was urging members to do all
they can to stall or prevent a Senate vote.

"Do GOP leaders have the courage and integrity to filibuster an
active, pro-Roe v. Wade judge?" Terry quipped to reporters.

                First Amendment Issues

While different interest groups flesh in Sotomayor's position on
a wide range of issues, her thinking regarding the First Amendment
separation of church and state is fairly clear. Her most important
decision concerned the application of the Religious Freedom
Restoration Act of 1993.  RFRA was struck down in a pivotal decision
in "Boerne
v. Flores."  State legislatures quickly enacted their own RFRA
statutes, and Congress later passed a scaled-down version known as
the Religious Liberty Protection Act or RLPA. The original case
concerned an attempt by the Roman Catholic Church to demolish a
building that had been declared part of a historic zone by the
City of Boerne, Texas.  The Archdiocese of San Antonio went to
court citing the protection of RFRA, which required governments
to demonstrate a "compelling interest" before placing any "burden"
on religious groups or practices.

Critics charged that RFRA created a dual system of justice by
extending "special rights" to religion.  Indeed, the mere threat
of RFRA litigation was cited as a way for churches to circumvent
a range of laws, including ordinances having to do with property
use, environmental concerns, building code and other statutes.
The U.S. Supreme Court, in a majority opinion authored by Justice
Anthony Kennedy agreed, and struck down RFRA as an impermissible
use of Congressional authority. The justices also noted that RFRA
provided religious groups with a special legal instrument which
"no atheist" could use.  Justice John Paul Stevens opined that the
1993 RFRA was "a law respecting an establishment of religion that
violates the First Amendment of the Constitution."

In 2006, Sotomayor joined with two fellow dissenting judges on the
Second Circuit Court in "Hankins v. Lynch."  That case involved
a charge of age discrimination filed by a Methodist clergyman.
The majority argued that the action fell under the purview of RFRA,
but Sotomayor argued that the Act did not apply to litigation
involving private parties.

Equally revealing is Sotomayor's citation of the "Lemon Test" in
First Amendment cases.  Based on the Supreme Court's 1971 ruling in
"Lemon v. Kurtzman," this test is used as the "gold standard" in
determining whether or not government acts violate the separation
of church and state. It states: The government's action must have
a secular legislative purpose; The government's action must not
have the primary effect of either advancing or inhibiting religion;
The government's action must not result in an "excessive government
entanglement" with religion.

The small number of other First Amendment cases in which Sotomayor
ruled involved specific practices, including efforts by prison
inmates to engage in certain religious exercise, and an attempt by
Muslims to have the Post Office display a crescent religious symbol
during the December Christmas-Hanukkah season.

Links and other resources for this story:

http://infobot.com/blogspot/religionclause/2009/05/sotomayor-is-high-court-pick-here-are.html
From Religion Clause: Sotomayor's rulings in religion-related
legal cases

http://www.politico.com/news/stories/0509/22984.html
"Right Divided Over Court Fight," Politico.com. "Conservative groups
know they want to oppose Supreme Court nominee Sonia Sotomayor - but
exactly how that campaign will be conducted is a major unanswered
question that is splitting the Republican right. The early fissure
among opponents to Sotomayor, the New York federal appeals judge
nominated by President Barack Obama on Tuesday, is over whether
to push for a filibuster.  'The Republicans have got to take a
stand on this one," said Pat Robertson, founder of the Christian
Coalition and a proponent of a filibuster. "If they don't, they can
kiss their chances of ever getting back into power away,' he added."

http://www.nytimes.com/2009/05/27/us/politics/27judge.html?_r=1&hp
Sotomayor's Rulings Are Exhaustive but Often Narrow. " Judge Sonia
Sotomayor's judicial opinions are marked by diligence, depth and
unflashy competence. If they are not always a pleasure to read,
they are usually models of modern judicial craftsmanship, which
prizes careful attention to the facts in the record and a methodical
application of layers of legal principles."

http://www.motherjones.com/politics/2009/05/will-sotomayor-split-right
With his new Supreme Court pick, Obama gives GOPers a choice:
tick off social conservatives or alienate Hispanic voters.

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