Good indications from a 2006 case on how Judge Sotomayor would rule on religion clause cases

(This is a part of my attempt to determine whether Judge Sotomayor is a centrist, liberal, or somewhere in between)


She dissented with Circuit Judge Ralph Winter (Reagan appointee) and Circuit Judge Barrington Parker (G.W. Bush appointee) in a case where the majority sought to legitimize and broaden the application of the Religious Freedom Restoration Act (RFRA) to an age discrimination case:

Majority: "We hold that the Religious Freedom Restoration Act of 1993 is constitutional as applied to federal law; it therefore amended the ADEA and governs the merits of the principal issue raised by the parties."


What is RFRA?

Justice Steven's described it best here:

"In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a 'law respecting an establishment of religion' that violates the First Amendment to the Constitution."

"If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52—55 (1985)."
http://straylight.law.cornell.edu/supct/html/95-2074.ZC.html


What did her dissent say?

"The Religious Freedom and Restoration Act (“RFRA”) is not relevant to this dispute.
First, appellees have unambiguously indicated that they do not seek to raise a RFRA defense, and
the statute’s protections, even if otherwise applicable, are thus waived. Second, the statute does
not apply to disputes between private parties. Third, we should affirm the judgment of the
district court without reaching the RFRA issue on the ground that Supreme Court and Second
Circuit precedent compels a finding that the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 621 et seq., does not govern disputes between a religious entity and its spiritual leaders."

"In the majority’s view, however, because appellees’ arguments relate to
rights protected under RFRA—namely, First Amendment religious rights—appellees have 'n
substance' relied on RFRA and thus have not, despite their explicit disclaimer, waived its
protections."


What else did she do in her dissent?

1). Cites the Lemon test favorably.
2). Refuses to go along with the use of RFRA to broaden the Free Exercise clause and circumvent the constitutional amendment process:

"Because RFRA went so far beyond what the First Amendment required, the Boerne Court understood the statute as “attempt a substantive change in constitutional protections" - a change that Congress was not authorized to make."

3). Makes it clear that she does not go along with the majority finding that RFRA is constitutional:

"By going out of its way to reach this constitutional question, the majority violates one of the “cardinal rules governing the federal courts,” namely, “never to anticipate a question of constitutional law in advance of the necessity of deciding it.”


Her full dissent:
http://www.ca2.uscourts.gov/decisions/isysquery/b2092ca4-59a3-4b93-8003-014d8bfccf7e/7/doc/04-0743-cv%20w%20dissent.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b2092ca4-59a3-4b93-8003-014d8bfccf7e/7/hilite/

Majority opinion:
http://altlaw.org/v1/cases/1138625

That's what I want to know.

She joined a ruling here that denied the New York State Restaurant Association's argument that regulations requiring nutritional content information on their menus violated the restaurant's first amendment rights:

In this case, the New York State Restaurant Association (“NYSRA”), a not-for-profit
business association of over 7,000 restaurants, challenges the constitutionality of New York City
Health Code § 81.50, which requires roughly ten percent of restaurants in New York City,
including chains such as McDonald’s, Burger King and Kentucky Fried Chicken, to post calorie
content information on their menus and menu boards...

Furthermore,
although the restaurants are protected by the Constitution when they engage in commercial
speech, the First Amendment is not violated, where as here, the law in question mandates a
simple factual disclosure of caloric information and is reasonably related to New York City’s
goals of combating obesity...

For the reasons stated above, we reject NYSRA’s challenge to Regulation 81.50 because
we conclude that it is not preempted by the NLEA and does not violate NYSRA’s member
restaurants’ First Amendment rights. Because this panel did not grant a stay of enforcement of
the district court’s order and NYSRA and its member restaurants are complying with Regulation
81.50, or facing fines for non-compliance, no further action is required by this Court.

http://www.ca2.uscourts.gov/decisions/isysquery/188edcb8-db85-48cd-9cc0-3102475c2f28/10/doc/08-1892-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/188edcb8-db85-48cd-9cc0-3102475c2f28/10/hilite

I hope we here can be aware that 'tests' about how judges or others would address certain matters are difficult/foolish. Good judges decide on cases before them, and nothing more. How they 'feel' is is not part of their job.