Sotomayor's BROKEN RECORD: It took some brass for Justice Sotomayor to base her dissent against President Trump's so-called Muslim travel ban on the idea that it's a violation of religious freedom. She has dissented in nearly all the recent cases in which the court has protected religious parties seeking shelter under the First Amendment. So it looks like her concern is not religious liberty but President Trump.
Those are the words with which Justice Sotomayor opened her dissent in the case in which the Supreme Court vindicated President Trump in respect of the so-called Muslim travel ban. The question is why a jurist of such eloquence and passion — and she is certainly such a jurist — was, in this case, so unconvincing, as she manifestly was, having been joined by only, in Ruth Bader Ginsburg, one of the other eight members of the court.
The answer to this puzzle is that Justice Sotomayor has scant credibility as a tribune of religious liberty. The justice acceded to our nation’s highest bench amid a historic struggle in which religious Americans of all creeds had come under legal attack, from secularists, bigots, and leftists. Hundreds — more by some estimates — of religious liberty cases are before our courts. Almost never has Justice Sotomayor fetched up on the religious side.
In this term alone, Justice Sotomayor joined Justice Ginsburg’s dissent in Masterpiece Cakeshop, in which the high court ruled — seven to two — that Colorado had failed to give a neutral hearing to a Christian fundamentalist who’d declined to craft a custom cake for a same-sex wedding. “What prejudice infected the determinations of the adjudicators in the case before and after the Commission?” sneered Justices Ginsburg and Sotomayor. “The Court does not say.”
Justice Sotomayor also sided against the religious parties in National Institutes of Family and Life Advocates. That was the case of the crisis pregnancy centers that, animated by religious principle, challenged California law requiring them to put up notices that California taxpayers might pay for abortions elsewhere. In 2014, Justice Sotomayor issued a dissent against accommodating Wheaton College’s plea to be excused on religious grounds from Obamacare contraception mandate.
For that matter, Justice Sotomayor joined Justice Ginsburg’s dissent in Hobby Lobby, a major test of the birth control mandate. It was hard to tell whether she was more horrified at the protection of corporations or religious people or statutory law. Justice Sotomayor also joined the dissent in the Supreme Court’s decision to allow the town of Greece, New York, to host voluntary prayer before its town meetings. That dissent was written by Justice Kagan.
It’s not the position of The New York Sun that freedom can prosper only when religious parties win every case before the Nine. Nor is it our position that there is no room for any dissent (it’s said that the Great Sanhedrin wouldn’t issue a capital sentence unless there was a dissenting sage). It is our position that it takes some brass for Justice Sotomayor suddenly to hoist the flag of religious freedom against the President’s immigration policies. It just doesn’t comport with her record. She writes as if her real concern is not religious freedom but President Trump.