Justice-to-be Sonia Sotomayor and the menora

Sotomayor has already upheld Chabad's right to display the menora on public property.

By NATHAN LEWIN
June 1, 2009 19:46
Justice-to-be Sonia Sotomayor and the menora

Sonia Sotomayor big smile 248.88 ap. (photo credit: AP)

 
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America's annual "holiday season" brings with it Christmas trees, wreaths, reindeer, Santa Clauses - and litigation over large the menoras that Chabad shluchim all over the country seek to place in prominent public locations in their communities. As the lawyer who represented Chabad in the leading case decided in favor of a menora at Pittsburgh's City Hall just 20 years ago, I continue, each November and December, to threaten and bring lawsuits on behalf of Chabad menoras. One such episode that has suddenly become memorable occurred in 1993, when I represented the Chabad shaliah in White Plains, New York, Rabbi Reuven Flamer. Over the vigorous opposition of the mayor and Common Council of the City of White Plains, we won for Chabad the constitutional right to display its large menora at the city's two principal public parks. The judge who granted that right had been appointed to the US District Court for little more than a year when the case came to her. Her name is Sonia Sotomayor, and she has catapulted to fame more than 15 years later as President Barack Obama's nominee for a Supreme Court vacancy. Flamer had been frustrated in efforts to display the menora in 1991 and 1992. Because of vociferous objections to public displays of religious symbols - including the menora - by the American Jewish Committee and rabbis in White Plains, the mayor refused to grant permission for the menora in 1991. Responding to the public brouhaha, the city's council enacted a resolution prohibiting "fixed outdoor displays of religious or political symbols" in White Plains' public parks. Citing this local law, the mayor again denied Chabad's request in 1992, even though - to comply with the scenario that had won Supreme Court approval in the Pittsburgh case - Flamer offered to erect his menora near the city's Christmas tree. In 1993, the only option was to go to court, and we filed a lawsuit called Flamer v. City of White Plains several months before Hanukka. The federal judge drawn by lot was Sotomayor, who had been appointed to the trial bench by President George H.W. Bush in the last year of his presidency. She was then a totally unknown quantity, and we had no idea how receptive she would be to the claim that White Plains' resolution barring the display of "religious or political symbols" violated the free-speech rights of Chabad. The case was tried before her in October, and she issued her decision directing that Chabad be permitted to display the menora on December 6, 1993 - two days before Hanukka. DECIDING THE CASE in favor of Chabad took independence and courage. We had succeeded in litigation battles on behalf of the menora in 1992 in Grand Rapids, Michigan (before 15 federal judges of the Sixth Circuit) and in early 1993 in Atlanta, Georgia (before 11 federal judges of the Eleventh Circuit). But one of our few losses had been in Burlington, Vermont. In 1989 three federal judges of the Second Circuit (which covers Vermont, Connecticut and New York) had rejected the local Chabad's request to display a large menora in front of Burlington's City Hall on the ground that it would look like the city was unconstitutionally "establishing" a religion. That court of appeals had jurisdiction to review and reverse any decision the neophyte Judge Sotomayor might render in the White Plains case. The safest course for her was to hide behind the 1989 ruling and send Chabad packing. Instead, she took our constitutional claim seriously and authored a lengthy and detailed opinion reviewing Supreme Court precedents. She accurately described the Vermont decision issued by her superiors as "somewhat confusing" and distinguished it away. Citing a line of Supreme Court decisions that had had upheld speech with religious content and found it no less worthy of constitutional protection than secular speech, she upheld the right of a private party to deliver a religious message in a "public forum." The opinion was persuasive enough that White Plains decided not to appeal, and the Chabad menora is now a White Plains institution. THIS TURNED OUT to be more than an isolated display of respect for religion on the part of Sotomayor. In May 1994 - while she was still a district court judge - she ruled in favor of inmates at the New York prisons in Sing Sing and Oneida who were adherents to the Santeria religion and were denied access to religious Orisha beads. When first assigned the case that the prisoners had initiated without the help of lawyers, she treated their claim as presenting "significant constitutional and statutory issues about the protections accorded fundamental First Amendment rights of freedom of religious expression in a prison setting" and had a prestigious New York firm appointed to present the prisoners' legal claim pro bono. Almost a decade later, after having been promoted to be an appellate judge on the Second Circuit, Sotomayor wrote a decision upholding the right of a Muslim prisoner at New York's Downstate prison to be given the traditional Id al-Fitr feast on the day after Ramadan ends. She rejected the argument that this particular religious observance was not important, and that some Muslim authorities had ruled it was not obligatory. These rulings indicate that the Supreme Court nominee disagrees with the most damaging decision the modern Supreme Court has rendered on the subject of religious freedom. In 1990, in a divided decision concerning the ingestion of peyote in a religious ceremony by adherents of Native American religion (Employment Division v. Smith), a Supreme Court majority, over vigorous dissent, ruled that the First Amendment gave religious observance no special standing in the face of "neutral" laws. Congress unanimously passed a law overruling the Supreme Court's decision, and the court promptly held the federal law to be unconstitutional. Justice David Souter - who is to be replaced by justice-to-be Sotomayor - disagreed strongly with both of these deplorable rulings. One can hope and pray that his replacement will continue his effort to have Employment Division v. Smith overruled and thereby restore the respect for religious observance that America's Founding Fathers intended when they denied government the power to prohibit the "free exercise" of religion. The writer is a Washington lawyer who has argued 27 cases in the Supreme Court and teaches Supreme Court litigation on the adjunct faculty of Columbia Law School

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