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Lawyer In Case Praises Sotomayor's 1993 "Menorah" Decision

By Howard M. Friedman

In yesterday's Jerusalem Post, lawyer Nathan Lewin describes the case he won in White Plains, New York in 1993, representing a Chabad rabbi who wished to display a large menorah during Hanukkah at one of the city's two major parks. The decision in Flamer v. City of White Plains,(SDNY, 1993), has become the center of attention as one of the major religion decisions written by Supreme Court nominee Sonia Sotomayor when she was a federal district judge. As Lewin recounts, the primary opposition to the menorah were other Jewish organizations and more liberal local rabbis who generally press for strict church-state separation. The mayor and city council were responding to that pressure. So Chabad sued, and Sotomayor ruled in its favor, following precedent in the 6th and 11th Circuit, while distinguishing a 1989 case decided by her own 2nd Circuit that went the other way. Lewin comments:

That court of appeals [the 2nd Circuit] had jurisdiction to review and reverse any decision the neophyte Judge Sotomayor might render in the White Plains case. The safest course for her was to hide behind the 1989 ruling and send Chabad packing. Instead, she took our constitutional claim seriously and authored a lengthy and detailed opinion reviewing Supreme Court precedents. She accurately described the Vermont decision issued by her superiors as "somewhat confusing" and distinguished it away. Citing a line of Supreme Court decisions that had had upheld speech with religious content and found it no less worthy of constitutional protection than secular speech, she upheld the right of a private party to deliver a religious message in a "public forum." The opinion was persuasive enough that White Plains decided not to appeal, and the Chabad menora is now a White Plains institution.

Full post as published by Religion Clause on June 02, 2009 (boomark / email).