Writing for the Brookings Institution, former Baptist Joint Committee counsel Melissa Rogers offers her take on Judge Sotomayor's church-state record (see the BJC's analysis here). She ends with a few questions for the Judge that might add insight into the thin record on Establishment Clause issues.
Does the Establishment Clause prohibit only state coercion of citizens along religious lines, or something more? Does it prohibit the government from directly subsidizing and sponsoring religious messages and activities? If so, why? Should the government attempt to be neutral toward religion? What does neutrality mean? What role should history or original meaning play in the interpretation of the First Amendment’s religion clauses and other constitutional provisions, and what do we know and not know about such history as it relates to the Establishment and Free Exercise Clauses? Also, Sotomayor’s recognition that various members of the Court have criticized certain Establishment Clause tests provides an opportunity to ask about her thoughts on the status and merits of those tests.
Having watched a couple of these Supreme Court confirmations closely (and will liveblog any religious liberty references during Sotomayor's as well), I believe I can safely predict that: a) these questions are all more intelligent and on point than most any Senators will likely ask, and b) even if they do actually let an insightful query slip through, the nominee is likely to find a way to respond without really answering. Still, wouldn't it be great if we did get to hear an actual colloquy on those issues? Fingers crossed…
