Jay Sekulow: May 2009 Archives

Barry, the idea that Judge Sotomayor should be welcomed by conservatives because she has cited binding precedent from cases that I argued before the Supreme Court is absurd. The fact that a judge votes in my favor some of the time or relies on one of the cases I won before the Supreme Court does not mean that he or she does not hold a strict position on church-state separation or an expansive view of abortion or privacy rights.

All of the currently sitting Justices--including those who hold a strict view of church-state separation and a broad view of abortion rights--have voted in favor of my position on multiple occasions in the cases I've argued or been counsel of record before the Court. For example, Justices Stevens, Souter, Ginsburg, and Breyer and former Justice O'Connor all voted in favor of my position between 50% and 56% of the time. I've had several unanimous or 8-1 decisions in cases involving religious speech or pro-life expression in which these Justices agreed with my position, but there have also been cases where they rejected free speech or free exercise claims or held that some government action violated the Establishment Clause.

Barry, today's nomination of Judge Sonia Sotomayor  to replace Justice David Souter on the Supreme Court of the United States will generate serious debate about the issue of judicial activism on the nation's highest court.

As we learn about Judge Sotomayor's background and judicial philosophy in the days and weeks ahead, it is important to determine how she views the Constitution and the rule of law. For example, will she embrace her past statement that the "court of appeals is where policy is made?" This nomination raises the issue of legislating from the bench and the appropriate role of a Supreme Court Justice.  We will learn more about her judicial temperament and philosophy in the days ahead.

I'm hopeful that the members of the Senate will ask tough questions about her judicial philosophy and temperament when the confirmation hearings get underway this summer.  The American people deserve to fully understand what kind of Justice Sonia Sotomayor would be on the nation's highest court for decades to come.

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Barry, congratulations to your daughter on her graduation.  It is that time of year - my son just graduated from Regent University School of Law.

The New Jersey school sounds perfectly legitimate from a constitutional standpoint. The article states that the school "would steer clear of religion while teaching a vital 21st-century skill--a second language that would prepare students for the global economy." The school's co-founder said, "It's not a Jewish school. . . . We're not teaching any religion."

It sounds like the school's instruction is consistent with United States Department of Education Guidelines on Religious Expression in Public Schools updated in 1998, that state:

Barry, you're missing the point of memorial crosses like those at the Mojave National Preserve,  Mount Davidson, Mount Soledad, and thousands of other places across the country. They are not designed to honor God but rather to memorialize the fallen soldiers or civilians in whose memory they are dedicated.

As you know, many of these memorials date back almost a century to the aftermath of World War I while others were dedicated shortly after World War II or during the Korean War. The Argonne Cross and the Canadian Cross of Sacrifice have been part of the landscape of Arlington National Cemetery for decades. The amount of public funds spent to maintain memorials is minimal in many cases, as the veterans organizations who first created them often donate their own time and money to help with their upkeep. The Hein case properly recognized that taxpayer standing in Establishment Clause cases should not be viewed expansively and emphasized that it is a narrow exception to the general rule that taxpayers do not have legal standing to challenge the government's expenditure of tax dollars.

Barry, we're preparing to file an amicus brief in a matter of weeks in a case that I know you are closely watching at the Supreme Court.  The high court agreed in February to take the case of Salazar v. Buono, which involves a challenge to a memorial cross displayed in the Mojave National Preserve in California.

The case will affect the legal standing of those who seek to challenge government displays that include symbols with some religious significance as well as the government's ability to cure actual or potential Establishment Clause violations through a sale of land to private parties.  Like many of these cases, this one has a long history and a lengthy legal battle.