Sotomayor, Religious Freedom and the Great Unknown

charles-c-haynes Commentary
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

President Barack Obama’s nomination of Judge Sonia Sotomayor for the U.S. Supreme Court has triggered considerable hand-wringing on both sides of the culture-war divide over the relationship between religion and government under the First Amendment.

Weeks before Obama’s announcement, Jay Sekulow of the conservative American Center for Law and Justice launched a preemptive strike, warning his constituents that Sotomayor has a “very, very strict view of church-state separation.”

Advocacy groups on the left can only hope Sekulow is right. They worry that Sotomayor won’t compensate for the loss of Justice David Souter, a reliable vote for a high wall of separation in case after case.

Souter and his fellow separationists didn’t win often on the current Court, but they managed to score an occasional 5-4 victory. Further thinning of their ranks would make it difficult, if not impossible, to muster five votes for a strict interpretation of the First Amendment’s establishment clause.

Unless Sekulow has a secret document that will reveal all, Sotomayor’s long judicial record on the U.S. District Court level and, since 1998, on the 2nd U.S. Circuit Court of Appeals tells us next to nothing about how she views the relationship between church and state. On the establishment clause, she is the great unknown.

One clue — and it’s not much of one — may be her dissenting opinion in Hankins v. Lyght (2006), a case involving an age-discrimination claim brought by a minister against his church. Although the majority of the 2nd Circuit panel wanted to send the case back to the lower court for further consideration, Judge Sotomayor argued against government intrusion into religious matters.

“Federal court entanglement in matters as fundamental as a religious institution’s selection or dismissal of its spiritual leaders,” she wrote, “risks an unconstitutional ‘trespass on the most spiritually intimate grounds of a religious community’s existence.’”

If this is separation, it strikes me as the kind of separation that most religious conservatives and liberals alike can support.

What we don’t know is how Sotomayor views government funding of social programs run by religious groups, government displays of religious symbols, or the role of religion in public schools — all hot-button establishment-clause issues that will come before the Supreme Court in the future as they have in the past.

When it comes to the free-exercise clause, we have more tea leaves to read. As a judge on the 2nd Circuit, for example, Sotomayor ruled in favor of a Muslim prison inmate who was not allowed to participate in an Islamic feast (Ford v. McGinnis, 2003).

As a U.S. District judge, Sotomayor also ruled in favor of Santeria inmates who claimed a free-exercise right to wear multiple strands of beads under their clothes as part of practicing their faith (Campos v. Coughlin, 1994). In her opinion, Sotomayor warned against prison officials favoring traditional over nontraditional religions, a distinction she called “intolerable.”

In a 1993 case, Flamer v. City of White Plains, Judge Sotomayor sided with a rabbi who was denied permission to erect a menorah in a city park. She struck down a city council resolution barring such displays, ruling that it discriminated against religious speech. Public parks, she argued, are “intimately linked to the free exchange of ideas” and must be viewed “as the public’s expressive domain.”

How much these opinions reveal about Sotomayor’s views on the free-exercise clause is difficult to gauge. But it’s not going too far out on a limb to predict that a Justice Sotomayor would be sympathetic to religious-freedom claims that come before the high court.

One religious question that will not (and should not) come up in Sotomayor’s confirmation hearings is the question of her own religious faith. But that won’t stop Court-watchers from speculating on what it will mean, if anything, for another Roman Catholic to join the Court. If confirmed, Sotomayor will be the sixth Catholic on the nine-member Court (joining one Protestant and two Jews).

At a time when religion frequently intersects with public policy, we can anticipate considerable public interest and media speculation about Sotomayor’s relationship to her church, including how her faith shapes her views on social issues like abortion and gay rights.

Judge Sotomayor would be wise not to feed the frenzy about her personal faith. But she will have to answer questions about the cluster of church-state questions that deeply divide Americans. Given the ideological divide in the country — and the Congress — that won’t be easy. But how she intends to uphold the religious-liberty provisions of the First Amendment is something Americans are eager to hear.

Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: [email protected].