Lynn v. Sekulow

Lynn v. Sekulow

Sotomayor’s Judicial Philosophy is Key

posted by Jay Sekulow

Barry, the idea that Judge Sotomayor should be welcomed by conservatives because she has cited binding precedent from cases that I argued before the Supreme Court is absurd. The fact that a judge votes in my favor some of the time or relies on one of the cases I won before the Supreme Court does not mean that he or she does not hold a strict position on church-state separation or an expansive view of abortion or privacy rights.


All of the currently sitting Justices–including those who hold a strict view of church-state separation and a broad view of abortion rights–have voted in favor of my position on multiple occasions in the cases I’ve argued or been counsel of record before the Court. For example, Justices Stevens, Souter, Ginsburg, and Breyer and former Justice O’Connor all voted in favor of my position between 50% and 56% of the time. I’ve had several unanimous or 8-1 decisions in cases involving religious speech or pro-life expression in which these Justices agreed with my position, but there have also been cases where they rejected free speech or free exercise claims or held that some government action violated the Establishment Clause.

The important thing is not how a nominee would vote in a particular case but rather their overall approach to the rule of law and the role of a judge. Judge Sotomayor’s statements regarding the policy-making role of a judge, the appropriateness of taking one’s background into account in deciding cases, and the benefits of uncertainty in the law are troubling and signal the potential for an activist reading of the Establishment Clause and abortion and privacy rights. I’m sure we can agree that the American public deserves to know what Judge Sotomayor’s views are on the original meaning of the Constitution’s text, including the Establishment Clause, and the role of a judge in applying the Constitution to new circumstances.


Regarding Liberty University, it’s a private school and can decide what student activities to allow or endorse on campus. Liberty has allowed the Democrats club to meet on campus for decades as an unofficial student organization. Liberty simply declined to allow the club to use the university’s name or receive student activities funding because the club’s activities directly conflict with the university’s support for traditional marriage and the sanctity of life.


The First Amendment does not apply to private actors such as Liberty University (except in rare instances where the private actor is deemed to be a “state actor”). Private universities have broad discretion to decide what is permitted or endorsed on their campuses without running afoul of the tax code or other federal law. The government should not be telling religious colleges what they must allow on their campuses where, as here, there is no discrimination against students on the basis of race or other impermissible factors.


By the way, at Regent University, where I teach and you have lectured, we have a Democrats club for students which receives the same benefits as all other student groups. This is the University’s choice as a private college.


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Comments read comments(12)
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posted May 29, 2009 at 12:14 pm

Was that a shameless plug for Regent ;). I do appreciate your hard work in defending our freedoms.

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posted May 29, 2009 at 3:19 pm

Jay, I’m sure Sonia Sotomayor’s views on the role of law and of judges will get a fair hearing during the confirmation process.
As it is, none of us knows that much about them because the “hot button” topics of such concern to you have not reached her courts.
I understand your concern. I also am concerned, but for different reasons. Both of us will need to wait a while for our answers. I’ve found it best not to cross bridges before we come to them.

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posted May 29, 2009 at 8:35 pm

If Liberty University does not receive any federal or state funding, then sure the college has a First Amendment right to freedom of association. Freedom of association has a price when accepting government funding.

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posted May 30, 2009 at 1:21 am

By the way, at Regent University, a tier 4 school and one of the lowest rated law schools in the nation, where I teach and you have lectured,

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posted May 30, 2009 at 1:30 am

Check this hilarious spoof of Regent on the Internet:
Regent University – Uncyclopedia, the content-free encyclopedia – 45k – Cached – Similar pages

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Cara Floyd

posted May 30, 2009 at 12:40 pm

Pro-choice policies are murdering children, which is against the posterity agreement of The United States Constitution. We the people need to protect the freedom of a living being in this country, so they can be entitled to the freedoms of our country.
Purple People,
Cara Floyd

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Cara Floyd

posted June 1, 2009 at 12:59 pm

Let us protect our posterity with laws in place which support the defence of our future. Let us give equal rights to our posterity.
C. Floyd

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Cara Floyd

posted June 1, 2009 at 2:09 pm

Whoever thought of spelling sounds differently in different words?

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Your Name

posted June 2, 2009 at 4:42 pm

“Pro-choice policies are murdering children”
No Cara, they’re not. Bearing false witness is a sin, remember?
Now, otoh, anti-choice policies (and the people who follow them) are assasinating doctors.
Get a clue.

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posted June 2, 2009 at 8:39 pm

Cara, you are a liar. No one is murdering children. But YOUR anti-American fascist brethren ARE murdering adult medical personnel. Please get a grip on reality and get a life. And stop supporting the taking of adult life.

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Your Name

posted June 2, 2009 at 8:44 pm

Jay, your First Amendment rights are perfectly intact. Just stop taking any public funds to support your ill-named “university”.

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N. Lindzee Lindholm

posted December 6, 2009 at 1:45 pm

I agree that the government’s advice to religious institutions of higher education on religious matters is a violation of the Establishment Clause because of the entanglement aspect and endorsement of particular religious ideologies. I still affirm that both Republican and Democrat clubs should be able to meet on campus because this allows the flow of diverse and broad ideologies.

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