The FundamentaList (No. 83)

1. Sotomayor and Separation of Church and State: More Information Needed.

The Supreme Court's "60-year record on the Establishment Clause hangs in the balance," Derek Araujo, vice president and general counsel to the secular Center for Inquiry (CFI) replied when I asked him last week just how important Justice David Souter's vacated seat is to the separation of church and state. That's why ascertaining Sonia Sotomayor's views on this essential constitutional question is one of the most urgent questions the Senate Judiciary Committee must address in Sotomayor's confirmation hearings.

Araujo said that jurisprudence protecting the separation of church and state "has been widely regarded as an area for potentially seismic shifts" after the more conservative Samuel Alito replaced Sandra Day O'Connor in 2006. When O'Connor retired, Araujo added, the Court lost a key vote holding that the Constitution requires "government neutrality in matters of religion, not only among different faiths, but also between religion and non-belief."

Because Souter was frequently an O'Connor ally on questions of religion, it is essential that the committee probe Sotomayor's positions. Specifically, senators should determine whether Sotomayor's jurisprudence would make her likely to continue Souter's and O'Connor's tradition -- and potentially persuade Anthony Kennedy to her side -- or if she would tilt to the right. If she leans to the conservative side, legal precedent upholding the separation of church and state, long a target of the religious right, could be at risk.

The legal test established in the Court's 1971 case, Lemon v. Kurtzman, prohibiting excessive government entanglement with religion, has been the centerpiece of Establishment Clause jurisprudence. For the religious right, though, Lemon and cases that follow it are the essence of "judicial activism."

O'Connor and Souter protected Lemon and other precedent from the conservative wing of the Court that would overrule it. Antonin Scalia and Clarence Thomas have long expressed their desire to overrule the case, Araujo said. The views of John Roberts, Samuel Alito, and Anthony Kennedy are less explicit, although they lean in that direction.

The Roberts Court has not yet decided a major case implicating the Establishment Clause. "The appointment of a new justice," Araujo said, "could have a heavy impact on any attempts it makes to change the law in this area."

2. Sotomayor and Abortion: Is a Blank Slate Common Ground?

From advocates of "common ground" on reducing abortion, the unifying talking point on Sotomayor was that she is no pro-Roe ideologue (protestations from the religious right notwithstanding) and is therefore proof of Obama's intention to forge "common ground."

David Gushee, the Christian ethicist and frequent spokesperson for the "evangelical center," did not seem particularly concerned about Sotomayor's lack of a record on abortion. "I think the fretting from NARAL and others indicates that Obama really did pick someone who is pretty much a blank slate on this issue," he said.

Common-ground promoters are pleased that Obama didn't nominate a fire-breathing advocate for women's full reproductive freedom and justice. That would have been so divisive! Washington Post columnist E.J. Dionne, a longtime cheerleader for finding "common ground" that dodges -- rather than resolves questions -- of reproductive justice, wrote, "In picking her, Obama sent another signal that he is serious about seeking common ground on abortion."

Sojourners president Jim Wallis, who prides himself on his close relationship with Obama, blogged: "For those who have been looking for more evidence of President Obama's common-ground approach to the issue of abortion outlined last week at Notre Dame, here it is."

But since the common grounders claim they don't want to fight about Roe anymore, why should the nominee's position matter to them one way or the other? Of course, the common ground advocates have nothing to lose from the Sotomayor nomination. If she turns out to be a vote against Roe, and it is overturned, they get their wish: abortion can be made illegal. But if Roe stands, the status quo remains the same, and they'll continue with their project of making it less accessible and less available.

3. In Abortion Cases, Sotomayor Isn't "Centrist." She's a Judge.

The White House targeted religious proponents of "abortion reduction" with an e-mail highlighting Sotomayor's decision in a reproductive rights group's constitutional challenge to the global gag rule in Center for Reproductive Law (CRLP) and Policy v. Bush. Supportive statements of Sotomayor's "centrism" quickly followed. But the case is not exactly evidence of her alleged "centrism" on abortion. Rather, a prior case controlled one of CRLP's three claims; Sotomayor ruled that the plaintiff had no standing to pursue its second claim, and Supreme Court precedent precluded her from ruling in the plaintiff's favor on its third.

Wallis claimed that Sotomayor "wrote from a centrist position and ruled against a pro-choice organization. Many other possible nominations could have been a slap in the face to either side, but the president used this as an opportunity to further his common-ground approach."

Dionne also pointed to the CRLP case, claiming that Sotomayor "upheld a ban on federal funds going to family planning groups that provided abortions overseas."

Those characterizations of the CRLP case are misleading. Sotomayor did not write from a "centrist" position; she followed controlling legal precedent on some claims and made a legal determination about whether the plaintiff had legal standing to even pursue a claim. There's nothing "centrist," "right," or "left" about that. It's called being a judge.

4. She's a Catholic Latina, She Must Be Anti-Choice. Or Not.

Because Sotomayor was raised Catholic, speculation was rampant last week about how Catholic she really is and whether she follows church teaching on all matters, including abortion.

As Jon O'Brien, president of Catholics for Choice, told me, "The Pope thinks that if you're baptized a Catholic, you're a Catholic."

Guessing Sotomayor's views based on her Latina heritage is equally absurd, but that didn't stop BeliefNet editor Steven Waldman, who has urged the Democratic Party to stop being "extremist" on abortion, from telling The New York Times that as a group, Hispanics are more opposed to abortion than other segments of the Democratic Party's base. "At the very least," he added, "she grew up in a culture that didn't hold the pro-life position in contempt."

A leading Latina reproductive-rights advocate called Waldman's statement "incorrect" and an "oversimplification and generalization." Silvia Henriquez, executive director of the Latina Institute for Reproductive Health, told me last week, "We completely disagree, as a pro-choice organization, that Latinas are predominantly anti-choice," Henriquez added many Latinas, especially recent arrivals to the United States, are not familiar with the "pro-choice" lexicon. But nonetheless, the majority of Latinas "want women to have access to [a] full range of reproductive health care, including abortion, if they choose. That's being pro-choice." Both external polling and the Latina Institute's own focus group data, Henriquez said, shows most Latinas are, by this definition, pro-choice.

While the Latina Institute was enthusiastic about the nomination of the first Latina to the Supreme Court, Henriquez said, "We have not gone as far as saying she has our full endorsement. We're waiting for more information."

5. Abortion and the Language of Morality.

Pepperdine University law professor Doug Kmiec, a Catholic supporter of the presidential efforts at "common ground" on abortion, has frequently said publicly that he and Obama agree that abortion is a "moral tragedy." Kmiec supported Obama in the presidential campaign and defended him against far-right Catholic critics of his speech at Notre Dame. The White House did not respond to my inquiry about whether Kmiec actually speaks for the president on this question.

While many of the common grounders, like Kmiec, frame the abortion question as a "moral tragedy," other religious leaders frame it as a moral choice. In the wake of the horrific murder of Dr. George Tiller on Sunday, it's more critical than ever to recognize that the "moral tragedy" religious voices who frame their position in religious terms, do not own the discourse on the morality of abortion. Elected officials need to stop cowing to the "moral tragedy" position -- it reinforces the perceived moral high ground of opposition to reproductive justice and marginalizes reproductive-justice proponents to the sidelines of moral respectability. If political leaders are honest about reaching out to religious voters rather than just those on the right, it's about time that they acknowledge the breadth and diversity of religious thought on the issue.

The Religious Institute on Sexual Justice, Morality, and Healing is inviting religious leaders to join the more than 800 who already have signed its open letter on abortion as a moral decision -- not a moral tragedy. "We seek to create a world where abortion is safe, legal, accessible, and rare," the letter reads. "Millions of people ground their moral commitment to the right to choose in their religious beliefs. While there are strong public health and human rights arguments for supporting the right of women to safe and legal abortion, here we invite you to consider the religious foundations for affirming abortion as a morally justifiable decision."

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