Rev. Barry W. Lynn: May 2009 Archives

Jay, I'm certainly aware that some of the most "liberal" justices on the Supreme Court agree with your arguments in some cases.  I even agree with your arguments in a few cases.  My question to you earlier, though, was why, in Establishment Clause challenges, you claim she is "very, very strict" (as indicated in the aforementioned television appearance).  Are there decisions she has made to lead you in that direction?  As I pointed out earlier she has rather moderate views in the few cases she has examined that touch on this important issue.  Am I missing something?

Of course, we all want America to know about her "judicial philosophy", but Judiciary Committee hearings, with time limits and political posturing by some Senators, is rarely a way to get a coherent view.  The best thing we have is the record before us. And, then, on occasion nominees just say what they need to say in order to get confirmed.  Remember, Clarence Thomas said he was a big supporter of the separation of church and state.  In turns out, he must have been supporting that construct from some other nation's (perhaps some other planet's) legal system.

Sonia Sotomayor's judicial record is pretty sparse on many of the issue you and I debate on this blog, Jay.  This did not stop you from announcing on Fox News last Friday that she had an  "very very strict" position on the Establishment Clause.  What cases are you talking about?

As I read her record she is a moderate (at most) on religious liberty matters.  She was on a Second Circuit appeals panel that granted a New York City church the right to allow homeless persons to sleep on the institution's outdoor property.  She also ruled, as a district court judge, that a rabbi could erect a temporary, freestanding menorah in a city park because other groups had been allowed to erect similar items in the past.  She relied on two Supreme Court cases argued by a fellow named Sekulow. Admittedly, she did serve on a Second Circuit panel that affirmed a lower court's decision to uphold the firing of a substitute teacher who invited students to accept Jesus and led them in prayer.  Surely, you don't agree with the teacher's conduct.

Jay, just a few days ago I was a participant in an event on "church politicking" at the National Press Club here in Washington.  The event was reported by your friends over at the Christian Broadcasting Network.  The focus of that afternoon was principally on whether pastors do or do not have the right to endorse candidates in sermons.  The Tax Code suggests they do not--and I argued that was the correct position.

Today, the Washington Post reports that Liberty University, founded by the late Dr. Jerry Falwell, has just terminated the right of the Democratic student club to be recognized at the university.  Effectively, Liberty has declared itself a Democratic Party-free zone.  This is quite shocking, violating basic tenets of free speech, free association, and even religious liberty (can't you be a Democrat and religious?). 

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I think the first four people who responded to your last post claiming the cross isn't necessarily religious are completely on the mark, particularly emphasizing that all deceased war veterans are not Christian.  I'd be happy to leave them have the last word.

Moving to another topic, we now have questions being raised about a new public "charter school" in New Jersey.  To me, such institutions pose two questions.  First, are they really subterfuges for having taxpayers shell out money for religious schools?  I have complained about the content of some curricular material at a similar Jewish "culture" charter school in Florida and changes were made.  On the other hand, some Jewish and Islamic charters do manage to confine their lesson plans and curricular materials to non-theological matters.  Obviously, it is impossible to know what teachers do or say that is not in the publicly available materials from such schools.  Over at Americans United, we'll be taking a close look at the New Jersey plan.

Yes, Jay, there will be a major battle about the Mojave National Preserve cross next term in the Supreme Court. In fact, it is really two battles in one.  The first is whether the plaintiff in this case is even able to get his complaint heard.  It has already become more difficult to obtain "standing" for people suing against infractions of their religious liberty--including not having to pay for other peoples' religious activities--thanks to the Supreme Court's decision in the Hein case a few years ago.  Now, you want to make it even more difficult.

I think one reason the "Right" is so interested in not allowing people into the courtroom to plead their case is that when courts look at the merits, litigants so often win. They win because it becomes apparent from the evidence that the symbol in question is not some mere annoyance.  It is a blunt and apparent declaration of support by a government for the icon of a specific faith, almost invariably American's statistically predominant religion, Christianity.

I don't want to get into a big debate here about the value, if any, of prayer.  However, this is the National Day of Prayer, so designated by an act of Congress back in 1952.  President Obama, as required by...

I have been amused over the weekend by the "sky is falling" rhetoric of the Right about the impending retirement of David Souter from the Supreme Court. Curiously, Jay, many of your colleagues concede that they don't like Souter's record,...