(CNSNews.com) – Supreme Court nominee Sonia Sotomayor is again drawing fire from conservative groups, this time as the result of a 2003 ruling against a Christian group.
In the case of Okwedy v. Molinari, decided in 2003, Sotomayor sat on a three-judge panel that upheld a lower court’s ruling (from 2001) against Keyword Ministries and its pastor, Kristopher Okwedy. The ministry had purchased billboard advertisements featuring Bible verses that condemned homosexuality.
The ads were taken down after a local government official complained about their message to the company that owned the billboard, and Okwedy sued both the company and the government official who wrote the complaint.
He claimed his rights were violated under the Free Speech, Establishment and Free Exercise clauses of the First Amendment; the Equal Protection Clause of the Fourteenth Amendment; and several state laws.
The advertisements featured various translations of Leviticus 18:22, which reads in the King James Version, “Thou shall not lie with mankind as with womankind: it is an abomination.”
Posted in the New York City borough of Staten Island, the messages were taken down after Guy Molinari, the borough president, sent a letter condemning them to PNE Media, LLC, which owned the billboards.
His letter was printed on official New York City letterhead.
“As Borough President of Staten Island,” Molinari wrote, “I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.” The advertisements were taken down later that day.
In 2001, the U.S. District Court for the Eastern District of New York dismissed Okwedy’s lawsuit. An appeal was entered and the case went to a three judge panel of U.S. Court of Appeals for the Second Circuit in April 2002. The judges on the panel were Fred Parker, Chester Straub and Sonia Sotomayor.
In their “summary order” the judges ruled that the district court was correct to dismiss Okwedy’s claim that Molinari’s letter violated free speech rights. “Plaintiffs contend that Molinari violated their rights under the Free Exercise Clause by criticizing the billboards’ message as unnecessarily confrontational and offensive, and by creating an atmosphere of intolerance. In order to prevail on a Free Exercise Clause claim, a plaintiff generally must establish that ‘the object of [the challenged] law is to infringe upon or restrict practices because of their religious motivation,’ or that its ‘purpose . . . is the suppression of religion or religious conduct,’” said the judges.
They continued: “Plaintiffs have alleged no facts that suggest that Molinari’s purpose or the purpose of the New York law was to single out plaintiffs’ religious expression. In fact, plaintiffs acknowledge that Molinari acted pursuant to the general policy against ‘intolerance’ and ‘bigotry’ expressed in New York law and the New York City Administrative Code § 8-101. … Therefore, because plaintiffs have not shown that Molinari lacked a rational basis for enforcing that policy, the district court correctly dismissed the Free Exercise Clause claim."
But Michael DePrimo, a former litigation counsel for the American Family Association’s Center for Law and Policy, which argued the case on behalf of Mr. Okwedy, told CNSNews.com: “The Establishment Clause requires neutrality in religious matters by the government. They can’t be pro-religion; they can’t be anti-religion. You can’t favor religion; you can’t be hostile toward religion.”
“Here you have a government official saying that the Scriptures are not welcome in the City of New York,” he said. “This was not commentary by the church. This wasn’t the church’s opinion. This was a Bible verse.”
Tony Perkins, president of the conservative Family Research Council (FRC), slammed the appeals court’s opinion.
“The case raises troubling issues,” he said in a statement. “[T]he church was posting a purely religious message with no statements regarding public policy. The opinion suggests that Sotomayor may view the First Amendment through the lenses of political correctness.”
“Would a billboard proclaiming ‘gay pride month,’ which is offensive to many Christians, have been similarly treated?” Perkins said. “Sotomayor should be asked.”
DePrimo, now allied with the Scottsdale, Ariz.-based Alliance Defense Fund, said the way in which Sotomayor and the Second Circuit Court of Appeals addressed the case is questionable.
“This was an issue of first impression in the Second Circuit,” he said. “I couldn’t find anything that was remotely like it.” In legal terms, “first impression” is used to describe an issue which a court has never taken up before.
“So, instead of analyzing the issue and writing on it, and publishing it, and therefore setting a precedent that lower courts would be bound to follow, they took the unprecedented step of issuing a summary order that was unpublished” at the time DePrimo added. “How do you do that on an issue of first impression?”
DePrimo also noted that the court issued two different opinions on the case, dismissing most of the case with the summary order, but writing a published opinion on one portion of the case that was sent back to the district court. “I have never seen before a court bifurcate an opinion,” he said.
Asked whether Sotomayor showed a pattern of issuing summary orders on controversial cases, as she also did recently in the reverse-discrimination case of Ricci vs. DeStefano (involving firefighters in New Haven, Conn.), DePrimo said: “It appears to me that Judge Sotomayor simply refuses to analyze those questions or those issues that may result in a result that she doesn’t like.”
He also asserted that the summary order cited a district court analysis that did not exist.
The three-judge panel, including Sotomayor, “said that they relied upon the district court’s analysis of the Lemon test,” said DePrimo, referring to the guidelines set out for Establishment Clause cases in the 1971 case Lemon v. Kurtzman.
“The district court didn’t analyze the case under the Lemon Test,” said DePrimo. “The district court made no mention of the Lemon Test. So to say that they were accepting the lower court’s analysis and reasoning obviously is not correct,”
The three-pronged Lemon test, used to determine whether government violates the constitutional prohibition against government “establishment of religion,” requires the court to ask whether a government action has a secular purpose, has the purpose of advancing or inhibiting religion, or entangles religion and government. Had Sotomayor and the other members of the panel actually employed the Lemon Test, DePrimo claimed, Okwedy would have won.
Furthermore, he claimed that Okewedy v. Molinari may actually present more issues than Ricci v. DeStefano.
“In the Ricci case,” he said, “the reason that people are defending Sotomayor is they were saying the law in the 2nd Circuit was established, and therefore she was bound to follow the law, and therefore there was no reason for her to elaborately write on the issue in Ricci.”
“That wasn’t the case in Okwedy,” he said. “There was no established law. This was a case of first impression. This is what courts of appeal do.”
William Marshall , a professor of law at the University of North Carolina, expressed a different opinion of the case. Referring to the court’s written opinion, in which Okwedy’s free speech claim was returned to the lower courts for a new ruling, Marshall said, “The part that I saw, the speech piece of it, is a very pro-religious expression piece.”
He went on to say, “I think what the per curiam opinion did was take the strongest count by the plaintiffs and remanded that for further consideration, overruling the district court. In that sense, it was pretty sympathetic toward the plaintiffs’ position.”
Asked about the splitting of the decision into both an opinion and a summary order, Marshall said, “You see that occasionally. The Second Circuit does an awful lot of its business by summary orders.”
Rob Boston, a senior policy analyst for Americans United for the Separation of Church and State, agreed with the court’s decision. “If you look at this case from the perspective of more of a church-state separation case,” he said, “I think it still is a difficult one for the churches to win, and here’s why: This is a case essentially that deals with a political issue that has religious overtones. It’s not pure religion.”
Boston also said, “This is different because it’s an issue that the church was claiming they feel very strongly about. They have a sincere religious belief that homosexuality is wrong. But that’s not going to rise to the same level of a direct attack on a religious denomination by a government.”
When asked whether Molinari’s action constituted an attack on the Bible, due to the fact that there was nothing but a Bible verse on Okwedy’s billboard, Boston said, “I can understand their argument. It’s a creative one, but I also can understand why it failed, because obviously in the context of an ongoing discussion on gay rights or same sex marriage or what have you, that quotation was designed to make a statement about a political issue.”
“Some of the conservative groups that don’t like Sotomayor are casting around looking for something to use against her,” Boston said, “and this is one of a couple of cases that they’ve brought up recently.”
“But, to be honest, I think the facts of this case are somewhat esoteric, they’re not really easy to grasp,” said Boston. “I doubt it’s going to resonate with the public, and I think, barring any unusual revelations at the last minute, Sotomayor’s going to go on the Supreme Court.”