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  Civil Rights
ADL Letter to the Senate Judiciary Committee on Sotomayor Confirmation Hearings
July 10, 2009

The Honorable Patrick Leahy
Senate Judiciary Committee

The Honorable Jeff Sessions
Ranking Member
Senate Judiciary Committee

Dear Senators Leahy and Sessions:

The Anti-Defamation League (“ADL”) was founded in 1913 to stop the defamation of the Jewish people and to secure justice and fair treatment to all.  To strive towards these goals, ADL has fought to ensure the preservation of constitutional rights, including the First Amendment’s guarantee of strict separation between government and religion as well as its protection of religious liberty. Another priority for ADL has been to ensure that our nation is secure while its residents maintain their due process rights. The League has also sought to eliminate discriminatory barriers which have denied equal opportunity to individuals in the areas of housing, employment, public accommodation and education, while at the same time, fighting for free speech rights and other individual rights that must be protected in order to maintain a pluralistic and democratic nation.

In anticipation of the upcoming hearings on the nomination of Judge Sonia Sotomayor as an Associate Justice of the United States Supreme Court, we write to urge you and your colleagues on the Judiciary Committee (the “Committee”) to examine her judicial philosophy on these topics.  Without asking Judge Sotomayor to comment on any pending cases, the Committee can and should seek her views on the Supreme Court’s role in interpreting the United States Constitution and laws that protect fundamental rights and liberties.

In this connection, we believe there are several areas that deserve the Committee’s special attention.  These areas, which the nominee should be invited to address, include the contemporary parameters of: (1) the religion clauses of the First Amendment, (2) federal civil rights laws, (3) free speech rights, (4) the balance between national security and civil liberties and (5) privacy rights.

Establishment Clause / Free Exercise

ADL respectfully requests that the Committee explore Judge Sotomayor’s views on the two religion clauses of the First Amendment.  Both the Establishment Clause and Free Exercise Clause are vital to the preservation and protection of religious freedom in this country, and both continue to generate considerable controversy.   We think it is of the utmost importance for the Committee to gain clarity as to the Judge’s perspective on each of these subjects.

The Establishment Clause

ADL has long believed that strict separation of church and state is necessary to protect the religious rights of all.  ADL is concerned about various aspects of Establishment Clause jurisprudence, including the judicial standard employed when interpreting the First Amendment; to what extent religious symbols can be displayed on public lands; the issue of who has standing to bring an Establishment Clause claim; and the appropriateness of the government funding religious institutions.

ADL has long supported the standard for analyzing Establishment Clause claims set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), which has proven to be a reliable constitutional barometer that generally yields decisions upholding the interests of religious minorities.  Recently, the Lemon test has been under threat and some justices have made clear their preference for a less restrictive standard.   

With concern about religious symbols on public lands, the League was pleased that the Supreme Court noted, as part of its analysis in its recent decision in Pleasant Grove v. Summum, 129 S.Ct. 1125 (2009), that when the government chooses monuments to display, it "must comport with the Establishment Clause" and cannot promote or endorse religion.  However, ADL was disappointed in the Supreme Court’s 2008 decision in Hein vs. Religious Freedom Foundation, 551 U.S. 587 (2007). ADL is concerned about how Establishment Clause violations will be addressed in the future since Hein limited the ability of taxpayers to challenge questionable practice in this area. 

Finally, ADL is concerned about judicial interpretations of the way public money is used to fund religious institutions.  President Obama has continued President Bush’s Office of Faith-Based Initiatives, which encourages community partners including religious institutions to carry out vital social services.  The League has been deeply troubled by the design and implementation of the initiative, particularly with regard to the provision of funds to groups that may discriminate in their hiring, or may proselytize to those they serve. 

Judge Sotomayor has decided a limited number of cases related to the relationship between the government and religion.  We are pleased that in Rosario v. Does 1 to 10, 36 Fed. Appx. 25 (2002), she ruled that a School Board's “strong, perhaps compelling interest in avoiding Establishment Clause violations” justified its actions in terminating a teacher who introduced religious material in a classroom.  In two other decisions of note, as a district judge, Judge Sotomayor, in Flamer v. City of White Plains, 841 F. Supp. 1365 (1993), ruled in favor of placing a menorah in a public park during the Chanukkah holiday.  She further ruled, in Mehdi v. United States Postal Service, 988 F. Supp. 721 (1997) that a post office did not have to include a crescent and star along with Christmas and Hanukkah decorations, and held that the existing display was constitutional. 
Despite these cases, the nominee’s overall legal philosophy concerning the role of religion in government is unclear.  ADL encourages the Committee to ask the Judge to articulate her views on the significance of these important Establishment Clause issues, including the validity of the Lemon Test, the issue of who has standing to bring an Establishment Clause action, and the appropriateness of government funding of religious activities. 

Free Exercise

We also suggest that the Committee explore the nominee’s view of the Court’s role in preserving and protecting religious liberty and religious free exercise.  In Employment Division v. Smith, 496 U.S. 913 (1990), the Court eliminated the longstanding “compelling state interest” test for free exercise cases, and held that valid and neutral laws of general applicability may incidentally infringe upon free exercise rights without running afoul of the First Amendment. This analytical approach could adversely affect numerous religious activities.  

We welcome the fact that Judge Sotomayor has supported the free exercise rights of individuals in a number of cases.  While serving on the Second Circuit, she wrote the opinion in a prisoner’s rights case in which a Muslim prisoner claimed his rights were violated when he was denied a certain religious meal.  The prison had questioned the significance of the religious practice.  Judge Sotomayor correctly held that this decision was not up to the prison, and the question should only be “whether a claimant sincerely holds a particular religious belief and whether the belief is religious in nature.” Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003.) 

We are unclear however, about the Judge’s view on the Religious Freedom Restoration Act (RFRA). In her dissent in the Second Circuit case, Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2007), a case which held that a compulsory retirement age for a minister does not violate the Age Discrimination in Employment Act because of the “ministerial exemption,” Judge Sotomayor contended that RFRA does not apply to disputes between private parties, and that the ADEA does not govern disputes between religious entities and their spiritual leaders.

Finally, ADL is concerned about instances when free exercise rights come into conflict with other rights, such as equal protection rights or the right to be free from discrimination.  ADL believes strongly in the importance of the right to free exercise, to the extent that such practice does not interfere with the rights of others.  Sometimes, however, there is tension, as illustrated by a recent Ninth Circuit decision concerning a Washington State rule requiring pharmacies to fill any legal prescription even if doing so would violate the pharmacy owner’s religious beliefs. 

We encourage the Committee to probe the Judge’s view on the limitations of the Smith decision, on the role of RFRA, and legal balance between the right to free exercise of one party and the equal protection rights of another.

Civil Rights Laws

Civil rights issues continue to reach the Court on a regular basis. ADL has long sought to eradicate discrimination in employment, education and housing as well as in other areas of American life.  ADL supports a broad interpretation of the Constitution’s equal protection guarantees, and their prohibition against discrimination on the basis of race, ethnicity, religion, gender, and sexual orientation. 

In the highly-publicized 2009 case, Ricci v. DeStefano, a qualifying promotional exam was discarded by a municipal employer after the results yielded an insufficient number of minority candidates. As a judge on the Second Circuit, Judge Sotomayor affirmed the district court’s decision to grant the city its motion for summary judgment, and so, affirmed the finding that the city was not guilty of racial discrimination when it threw out the exams.  The case highlighted the tension between a race-conscious action by an employer that has a discriminatory intent and an action that has a discriminatory effect in a workplace.  ADL submitted an amicus brief to the U.S. Supreme Court arguing that the city could not make their decision solely on the basis of race without determining that the exam was indeed discriminatory.  Just last month, the Supreme Court agreed with ADL and overturned the Second Circuit ruling.

Further, as a member of the Second Circuit, Judge Sotomayor wrote several opinions relating to the treatment of harassment and discrimination in the workplace.  She authored opinions both rejecting and sustaining discrimination in the workplace claims, including hostile work environment and retaliation claims.1 

We encourage the Committee to ask the nominee how she believes the decision in the Ricci case will change employment anti-discrimination law jurisprudence.  We think it is appropriate to ask the Judge her view on the legal standard for proving that a retaliation or hostile work environment claim exists.

Recent U.S. Supreme Court decisions have held that racial diversity is a compelling interest in public education.  In Parents Involved v. Seattle and Meredith v. Kentucky, 551 U.S. 701 (2007), although the court struck down the schools’ specific desegregation plans, in Justice Kennedy’s concurrence, he stated that procuring a diverse student body is a compelling state interest.  In another relatively recent case, Grutter v. Bollinger, 539 U.S. 982 (2003), the Supreme Court upheld the University of Michigan Law School’s admission process, which used an individualized approach: the admissions committee considered race as only one factor in considering whether to accept the applicant.  On the other hand, the court struck down the University of Michigan’s undergraduate admissions process, which used a point system, giving a greater number of points to specific underrepresented groups.  ADL agreed with the decision in Grutter and believes race can be one of many factors considered when accepting an applicant to an institution of higher learning.  Although we believed the desegregation plans that were the subject of Parents Involved were constitutional, the League was gratified that the Court acknowledged that diversity is a compelling interest in our elementary and secondary schools across the country.

We encourage the Committee to question Judge Sotomayor’s understanding of race-based decision making in the education context, and ask that she discuss whether she sees a compelling state interest in diversity. 

Student speech

As e-mails, text messages, blogs, and social networking sites have become the communities in which our nation’s students socialize, issues involving youth use of the Internet have exploded.   While the Internet has been looked to as an open forum for expressing viewpoints, it has also become a place for hurt.  Cyberbullying has become increasingly prevalent over the past several years as students harass or bully their fellow students over e-mail and the Internet.  Schools across the country are concerned about how to discipline students who bully over the Internet, particularly when the messages are sent from the perpetrator’s home computer.  The range in court holdings on this particular issue across trial courts gives little guidance on the legal issue of whether a public school can discipline a student who bullies another from a home computer.

ADL has developed a model law for states to adopt which requires school districts to implement an anti-bullying policy in their schools that gives schools the resources they need to combat and respond to cyberbullying.  The bill requires that a school anti-bullying policy include electronic bullying originated off school property if a reasonable person should know that the act will cause substantial interference with the orderly operation of the school.

In Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), Judge Sotomayor joined in a decision which determined that “a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that the off-campus expression might also reach campus.” 

We encourage the Committee to question Judge Sotomayor to expound on her interpretation about the balance of student’s free speech rights and a school’s obligation to provide a safe learning environment, particularly with concern to electronic expression. 

Balancing National Security and Individual Rights

It is of the utmost importance that, while our nation is addressing issues of terrorism at home and abroad, our government must be armed with the tools to effectively combat all incoming dangers while maintaining civil liberties for all.  It is ADL’s view that our democratic ideals do not need to be sacrificed in order to ensure our physical security.  It is also the view of ADL that one branch of government should not be able to unilaterally make decisions in these areas, where checks and balances are established and in place to protect against abuses.  For this reason, the League joined a coalition of civil rights organizations in supporting habeas corpus rights for detainees in Guantanamo Bay in both Rasul v. Bush, 129 S.Ct. 763 U.S. (2004)and Boumediene v. Bush, 128 S.Ct. 2229 (2008).

In 2008, Judge Sotomayor joined in the Second Circuit opinion in Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), which considered FBI issuance of National Security Letters to electronic communication service providers to obtain user personal information.  The decision refused to defer to the Executive Branch and invalidated that portion of the Act concerning nondisclosure requirement as violating the First Amendment because the requirement effectively created an impermissible prior restraint on speech.    

This nation’s fight for security has recently brought to light questions of law related to the use of the Internet for illegal ends, the meaning of materially supporting a terrorist organization, the definition of a fair military tribunal, and the status of certain combatants. 

The Committee should question the Judge’s view on the role of the Executive, the Legislature and the Judiciary in dealing with issues of national security.  We encourage the Committee to explore the Judge’s interpretation of the definition of “material support” and what due process rights exist for foreign detainees in custody in the U.S. 

Reproductive Rights/Right to Privacy

Without a doubt, the issue of reproductive choice is a constant source of tension in this country.  Since the seminal case of Roe vs. Wade which clearly set forth the fundamental right to privacy in this area, there have been numbers of legal battles analyzing how close government laws can creep towards regulating that fundamental right, without violating it.  Most recently, in 2006, the Supreme Court held in Gonzales v. Carhart, 127 S.Ct. 1610 (2007), that a ban on late-term abortions did not violate this fundamental right.  ADL disagreed.   It has been the long-standing position of ADL that adults should be permitted to make decisions regarding their health, including reproductive choices, in accordance with their own conscience and their own faith, and without governmental interference. 

Legal battles in the reproductive choice arena have also moved beyond the topic of the right to have an abortion procedure, to issues of control over reproductive health generally.  Some legal issues in the courts involve the right for a patient to obtain contraception and the right for a patient to hear the options available to her with concern to her reproductive health.   In Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), Judge Sotomayor wrote the opinion for the court upholding the “Mexico City Policy,” which was a U.S. government policy that required foreign NGOs, as a prerequisite for funding, to agree not to promote or perform abortions.

In her history serving on the bench, Judge Sotomayor has not directly ruled on the issue of whether the Constitution protects a right to an abortion.  The Committee should ask the Judge the importance she places on the precedential value of Roe vs. Wade.  The Committee should also determine the Judge’s view on the issue of a constitutional right to privacy generally.  We encourage the Committee ask the nominee about her views on whether she sees the right to choose an abortion as a constitutional right, and, if yes, then what she sees as the limitations on governmental regulation of that right.  We also encourage the Committee to ask the Judge about her views on the balance between the right to privacy in the context of abortion and the right to free exercise.

Hate Speech

ADL has committed itself to combating hate, in all its forms, and speaks out to condemn and counter hate.  The League’s Center on Extremism researches and studies the movements of hate groups and extremists in this country, whose sole purpose is to spread their hateful messages of xenophobia.  However, through this fight, the League has committed itself to one of the highest democratic ideals, freedom of speech, and has been looked to as a leader in drawing the line between condemning speech and prohibiting speech.  For instance, ADL filed an amicus brief in the Nebraska Supreme Court case Nebraska v. Henderson, 277 Neb. 240 (2009), in which a Nebraska state police officer was fired after it was discovered he was a member of the White Knights of the Ku Klux Klan and had posted messages to their website.  In its brief, the League argued that public confidence in law enforcement would be severely undermined by the presence of a Klan member on the force. 

The Second Circuit, in Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), upheld the termination of a New York City Police Department employee who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he anonymously mailed back racist and bigoted materials.  Judge Sotomayor dissented, arguing that while “a public employee’s free speech interest is often subordinated to the effective functioning of a government employer,” there is a distinction when that employee has no “public contact.”

As the world of the Internet can make what one says or does in their private life more public, we encourage the Committee to question the Judge on the appropriate balance between First Amendment and the need for public employers to condemn and act upon racist speech.

Gun Safety

In the 2007 term, the U.S. Supreme Court issued a 5-4 decision opinion that gave a bold new interpretation to the Second Amendment.  In District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the Court held, for the first time, that the Second Amendment guarantees an individual right to have a gun for private use.  ADL joined a coalition in filing an amicus brief with the Court, contending that the Second Amendment should not be interpreted as limiting a state's authority to regulate firearms.  In 2009, Judge Sotomayor was a member of the panel in the Second Circuit that issued a per curiam opinion in Maloney v. Cuomo, 554 F.3d 56 (2009), affirming a district court opinion that the Second Amendment did not apply to the state law. 

We encourage the Committee to question the Judge on her views of whether the limitations set by the U.S. Supreme Court apply to the states, and in what manner.

Voting Rights

In this past term, Section 5 of the Voting Rights Act was at issue before the Court.  While the Court’s decision in Northwest Austin v. Holder upheld Section 5 and decided the case on other grounds, the opinion made clear that Section 5’s relevance and constitutionality may come before the Court again.  ADL believes the Voting Rights Act is one of the most important pieces of civil rights legislation, and that Congress’ decision, made after careful deliberation, that the regulations within Section 5 are still necessary today, should not be second-guessed.

Judge Sotomayor has weighed in on voting rights issues in her service on the Second Circuit bench.  In Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), the en banc Second Circuit rejected a challenge under the Voting Rights Act to a New York law denying convicted felons the right to vote.  In her dissent, Sotomayor deferred to Congress on their intent and meaning when drafting and reauthorizing the Voting Rights Act. 

We encourage the Committee to ask Judge Sotomayor to expound on her view on the role of Congress and the Judiciary in the context of interpreting the relevancy of the Voting Rights Act, and any other federal civil rights law.

Marriage Equality

Currently, six states permit marriage between individuals of the same sex.  Courts in Iowa, Massachusetts and Connecticut have held that a ban on same-sex marriage violates the equal protection clause in their respective state constitutions.  In 2009, Maine, Vermont and New Hampshire each enacted laws granting the right to same-sex marriage.  Although its state constitution was subsequently amended, the California Supreme Court, in its 2007 analysis of a ban on same-sex marriage, specifically gave strict scrutiny review to the classification of sexual orientation.  ADL wrote an amicus brief to the California Supreme Court that the ban on same-sex marriage violated the state Constitution.  The federal Defense of Marriage Act defines marriage on a federal level as between a man and a woman, and denies federal benefits to married same-sex couples. 

We encourage the Committee question the Judge on the applicability of strict scrutiny review to the classification of sexual orientation, and whether a law which permits marriage only between a man and woman violates the equal protection clause. 

Judicial Philosophy

We respectfully urge the Committee to explore whether the nominee subscribes to any particular canon of construction when interpreting the Constitution.  What is Judge Sotomayor’s view of “judicial activism” and how does she define it? 

The Committee should ask the nominee about her philosophy regarding stare decisis.  Would she read precedent narrowly or broadly, and under what circumstances would she vote to overturn precedent with which she disagrees?

In ADL’s view, the Senate’s role in the nomination process is equally as important as the President’s responsibility to nominate.  We hope this submission of issues of concern to us will be of assistance to the Committee as it undertakes its evaluation of Judge Sotomayor and wish you good luck as you move forward with the hearing.


Glen S. Lewy
National Chair

Marvin D. Nathan
Chair, Civil Rights
Abraham H. Foxman
National Director

Deborah M. Lauter
Director, Civil Rights

1 Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999), Williams v. R.H. Donnelly Co., Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000), Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001)

Related Articles

ADL Statement On The Nomination Of Judge Sotomayor To The U.S. Supreme Court (5/26/09)

White Supremacists Allege "Jewish Power" Behind Sotomayor Nomination To Supreme Court (6/16/09)

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