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November/December 2009

Discover more articles from this issue.

A Clash of Millennialisms on Capitol Hill

The Christian lobby came to Capitol Hill in a big way in 1888. And that meant that the nation’s lawmakers were certain to hear from the...

Gods and Generals

Old World/New World disparity can be as different as treasured paintings on a crumbling church wall in Florence, Italy, and bulldozers leveling yet another...

Decoupling for Freedom

The Bill of Rights decoupled religion from the state, in part because so many religions were steeped in an absolutist frame of mind—each convinced...

The Victims of Religious Intolerance

Nations, factions, political groups, and even families go to war with each other to satisfy things like their greed, their pride, and their jealousy. They...

What Are We Enhancing?

Thursday morning, July 30: The mainstream media and punditocracy continued to obsess over “Gatesgate” and that evening’s impending...

Cherished Rights

A speech given by Rabbi David Saperstein

Faith, Freedom, and Justice Sonia Sotomayor

On Thursday, August 6, 2009, the U.S. Senate confirmed Sonia Sotomayor to be the 111th justice of the United States Supreme Court. What does that mean for religious liberty in America?

Magazine Archive »

Published in the November/December 2009 Magazine
by David A. Pendleton

Ever since President Barack Obama nominated Sonia Sotomayor to the United States Supreme Court, the chattering classes have speculated endlessly regarding the impact she might have on the future of American jurisprudence.1 She would bring wide-ranging experiences to the Court: prosecutor, civil litigator, federal trial judge, federal appellate judge, law school instructor, and Hispanic woman.2 While not a Horatio Alger rags-to-riches success story, she comes pretty close.

As only the second Hispanic named to the Court,3 her views on race and ethnicity have naturally been of great interest to Court watchers, litigators, and the so-called fourth estate. In fact, for a time her “wise Latina” comments and the president’s equally controversial “empathy standard” were unwelcome distractions and fodder for sharp criticism. But the threatened firestorm turned out to be more a tempest in a teapot, and during the Senate confirmation hearings she conducted herself with aplomb, charm, and dignity, demonstrating not just a nuanced and sophisticated comprehension of the law but a judicial demeanor and temperament to be expected of one enrobed in the marble edifice at the entrance of which bears the inscription “Equal Justice Under Law.”

At the age of 55, she could potentially serve until 2044, should she serve as long as Justice Oliver Wendell Holmes, Jr. (who served on the Court until the age of 90). Her relative youth, then, is one of the positive considerations that no doubt influenced her nomination.

President Barack Obama talks with Justice Sonia Sotomayor prior to her investiture
ceremony at the Supreme Court September 8, 2009. White House Photo by Pete Souza

Perhaps of somewhat lesser public interest, but of no less public importance, are Sotomayor’s views regarding the Constitution’s provisions generally and the safeguards concerning religious liberty specifically. Appellate judge exercise discretion in interpreting the U.S. Constitution, but are necessarily constrained by the binding precedent set by the U.S. Supreme Court. Since 1803 the judiciary has had final legal interpretive authority within our nation’s system of government and the Supreme Court has reigned supreme over all courts regarding the laws of the land. As Chief Justice Marshall opined in Marbury v. Madison: “It is emphatically the province and duty of the Judicial Department to say what the law is.”4

Three provisions in the U.S. Constitution expressly reference religion, effectively presenting a triptych showcasing the New World’s commitment to freedom of conscience. One is in Article VI, Section 3 of the U.S. Constitution, which provides in pertinent part that “. . . no religious test shall ever be required as a qualification to any office or public trust under the United States.” While age and residency requirements may be prescribed for would-be officeholders, this “no religious test” clause clearly proscribes any religious criterion being applied. (In some jurisdictions in colonial America public office holders had to be of the Protestant faith.)

The other two religion provisions are situated in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This pair of clauses (free exercise clause and establishment clause) proved fertile soil from which has grown the vast body of intricate, if not convoluted, case law concerning religious liberty.

While Sotomayor’s past judicial experience never afforded her the opportunity to opine on the Article VI, Section 3 prohibition against religious tests for officeholders, she has adjudicated cases pertaining to the other two provisions.5

A quartet of cases gives voice to her views regarding the religion clauses. Ford v. McGinnis,6 for example, involved an inmate in a state correctional facility who requested to be served an Eid ul Fitr meal for observance of the Muslim Festival of Breaking the Fast. He wanted to participate in the daylong celebration at the conclusion of Ramadan, which is a holy month of fasting and prayer for Muslims. The prisoner had to be transferred from Rikers Island to the Downstate Correctional Facility for a court appearance on January 7, 2000, which was the very day for partaking of the Eid ul Fitr meal and so was unable to participate at the prescribed time.

Prison officials learned that most Muslims would not observe the feast at a time other than at the appointed time, and so they informed the inmate that no such makeup feast would take place given the generally accepted dictates of Islam. The prisoner in question begged to differ and filed a lawsuit.

The timing of the suit may not have been ideal for the litigant, who filed after the Religious Freedom Restoration Act had been invalidated by the Supreme Court (at least to the extent that it applied to the states) but before the Religious Land Use and Institutionalized Persons Act was passed by Congress. It afforded, however, the appellate court the occasion to decide the issue squarely on the Constitution, not on interpretations of federal statutes.

A federal trial court had affirmed the decision of the prison not to serve the meal at all since by conventional Muslim standards it would have been too late. By the time Sotomayor heard the case, she was a federal appellate judge serving on the Second Circuit. Writing for the panel, she opined that the appellate court would decline to assess the “objective reasonableness of the prisoner’s belief ” and would ask rather the more focused and individualized questions of whether “a claimant sincerely holds a particular belief and whether the belief is religious in nature.”

This was because judges, though learned in the law, did not have the “aptitude to pass upon the question of whether particular religious beliefs are wrong or right.” The decision served a didactic purpose, signaling that courts would look to the sincerely held beliefs of the individual adherent party to the litigation, not solely to whether the belief was an official creed or a “tenet or dogma of an established religious sect.” No group would determine for the individual what the individual in question believed.

Not a favorite of correctional facility wardens, the case made clear that the Constitution’s guarantees afforded substantive rights, not easily dismissed, and certainly not diminished due to the idiosyncratic religious beliefs of the individual asserting the rights.

The case of Flamer v. City of White Plains7 was a suit by Rabbi Reuven Flamer, a Hasidic Lubavitcher Jew, who requested to erect a menorah, a nine-pronged candelabrum, in a city park. He was precluded from so doing by a city council resolution, supported by Reform Jews, prohibiting fixed outdoor displays of religious or political symbols in government parks. The rabbi asserted his constitutional rights to free exercise of religion and to free speech and argued that the city resolution was unconstitutional.

Sotomayor, then serving as a federal trial judge, struck down the resolution as an unconstitutional content-based regulation of speech. A hybrid case involving two First Amendment protections (speech and religion), Flamer is seen as a victory for proponents of unfettered religious speech. Why should religious speech be accorded less protection than secular speech? After all, freedom of religion is expressly protected and, therefore, religious speech should for that very reason be accorded more, rather than less, protection.

At the same time, however, there are those of a sincerely religious orientation who equally revere the Constitution who are less than completely comfortable with the decision. For them, the Constitution precludes use of government property for such religious expression. The establishment clause is not just about disestablishing churches but about preventing the perception of government endorsement of a particular faith. The case is not just a skirmish between conservative Hasidic Lubavitcher Jews and progressive Reform Jews; it also reveals the inherent tensions between the establishment clause and free exercise clause.

Anti-abortion protestors
demonstrate against the
confirmation of U.S. Supreme Court nominee Judge Sonia Sotomayor before U.S. Senate Judiciary Committee confirmation hearings on Capitol Hill in Washington, July 13, 2009. REUTERS/Jonathan Ernst

Judge Sotomayor, with the deft hand of a judicial maven, identified the relevant facts and applied the legal precedent. After describing the distinctions between a traditional public forum, a nonpublic forum, and a designated public forum, she permitted the expressive action of erecting the menorah, vindicating the right to religious speech in a forum in which no one would mistake the menorah for government speech. No doubt the case would have been decided the same way whether the display entailed the Ten Commandments, a crescent, or a crèche.

Campos v. Coughlin8 is a third case that can serve as a window on Sotomayor’s approach to religious freedom cases. This case also involved incarcerated individuals, who in this care were self-described adherents of the Santeria religion, though some had previously identified themselves as Christians. What makes this case interesting was not just that the believers were prisoners or that they insisted that they had a right to wear multiple strands of beads; it is important because while such a devotional practice may have been officially optional for Santeria practitioners, it was not optional to the petitioners in question. If the state denied their request for accommodation, the denial could, in their minds, “result in negative and possibly irreversible life consequences for the practitioner.”

In deciding the case Judge Sotomayor upheld their claim, holding that an accommodation was constitutionally required. State corrections administrators, while ever mindful of prison safety and security concerns, were no less responsible as government actors for complying with the constitutional right to the free exercise of religion. The right is not absolute and admits of caveats, qualifications, and limitations. But on balance the religious freedoms guaranteed to the prisoners outweighed concerns that the beads might identify prison gang membership (a genuine, nontrivial concern of the warden).

Hankins v. Lyght9 was a case in which an elderly Protestant minister filed suit against his denomination’s implementation of mandatory age-based retirement. Though he loved his church, he hated what in his mind was its thinly veiled ageism. In this case Judge Sotomayor parted company with the majority and filed a dissent.

She argued that the federal age discrimination in employment statute was inapplicable to a church’s hiring, retention, and employment practices, for to hold otherwise would unduly intrude into matters (of faith) regarding which courts had no competence. Court involvement in a church’s mandatory retirement dispute would be to trespass on “spiritually intimate grounds of a religious community’s existence.”

With due deference to applicable precedent, she explained her reasons for dissenting. One might infer from her dissenting opinion a profound respect for religious institutions and their faith-informed internal operations. The right to believe belongs not just to an individual but to an aggregate of individuals, and government should studiously avoid becoming embroiled in internecine struggles over religious questions between believers and their communities.

These four cases stand for the constancy of the Constitution. They reveal Sotomayor’s judicial leitmotif of upholding constitutional rights not just in trouble-free circumstances but even under challenging conditions. The Constitution guides the ship of state not just in tranquil waters but even, and perhaps especially, in the Sturm und Drang of the perfect legal storm.

While it might be an exaggeration to call her opinions illuminating, learned, and lucid, it’s not much of an exaggeration. Her published opinions exhibit the painstaking and proficient habits of a judge who is fairly even-tempered, passionate about being dispassionate, and decidedly mainstream. She is not, at least on the religion clauses, an ideologue with a doctrinal ax to grind. Her opinions avoid courting the avant-garde; instead, they are closely reasoned and meticulously written with the fidelity to statutes and studious attention to precedent expected of a neutral adjudicator. Noncontroversial is an apt description of her judicial oeuvre—and perhaps this is precisely what the president wanted.

These are not the only opinions that evince recently confirmed Justice Sotomayor’s religious liberty jurisprudence. Professor Howard M. Friedman has compiled an extensive list of Sotomayor’s rulings on religion clause issues at his blog, Religion Clause.10

Some groups criticize Sotomayor’s jurisprudence as being merely comme ci, comme ça (so-so) or rather moderately tolerable. Others find her to be—for good or for ill—a rather “strict church-state separationist.” Still others laud her as a brilliant jurist.

According to the Baptist Joint Committee for Religious Liberty, an organization noted for its strict church-state separation, Sotomayor upholds religious “free exercise—even in difficult settings such as prisons and in cases where the religious practices of plaintiffs are unfamiliar,” and “where the governing case law was not settled, she accurately predicted the Supreme Court’s eventual resolution.”11

Dan Gilgoff, writing in his God & Country blog for U.S. News and World Report, found Sotomayor’s religion clause cases so middle-of-the-road that he predicted the White House might even focus on them to garner support among religious conservatives.12

The American Center for Law and Justice, a traditional values counterpart to the liberal ACLU, doubtless would have preferred a nominee more in the conservative mold of Justice Scalia. But its decision not to actively oppose Sotomayor’s confirmation and to rather generically indicate that it “stands firmly behind the appointment of judges who will interpret the law, rather than legislate policy” is telling.13

While the U.S. Senate fully inquired into Sotomayor’s judicial philosophy, one thing it properly declined to do was inquire into “her own religious faith.”14 While it is common knowledge that she is a practicing Catholic Christian (and will constitute the sixth Catholic on the nine-member Court), her prayers, devotional practices, and personal theology are not pertinent to her qualifications for the U.S. Supreme Court. Such a line of questioning could be tantamount to a violation of the “no religious test” provision of the Constitution.

In conclusion, if Justice Sotomayor’s past writings are any indication, her future religion clause opinions should please First Amendment advocates, especially those for whom religious liberty is vital.

 

David A. Pendleton writes from Honolulu, Hawaii.

 

  1. On May 26, 2009, President Barack Obama nominated Sonia Sotomayor to succeed retiring Justice David Souter as an associate justice of the United States Supreme Court. From July 13 to 16, 2009, the U.S. Senate Judiciary Committee held a hearing on the nomination of Sonia Sotomayor, and on July 28, 2009, the Judiciary Committee voted to report to the full U.S. Senate her nomination by a vote of 13-6. On Thursday, August 6, 2009, the U.S. Senate confirmed Sonia Sotomayor to be the 111th justice of the United States Supreme Court. The final vote was 68-31. At the time of this writing, Sonia Sotomayor had not yet been sworn in as a justice.
  2. Arguably no sitting justice possesses a richer legal background than Sonia Sotomayor: B.A., Princeton University, 1976; J.D., Yale Law School, 1979; assistant district attorney in New York (1979-1984); private practice litigating complex commercial cases (1984-1992); federal trial judge (1992-1998), presiding over roughly 450 bench and jury trials; and U.S. Court of Appeals judge since 1998.
  3. Justice Benjamin Cardozo was Jewish with roots traceable to the Iberian Peninsula. While not the first Hispanic to be appointed, Justice Sotomayor is the only currently sitting Hispanic U.S. Supreme Court justice. Her mother immigrated to New York from Puerto Rico.
  4. 5 U.S. (1 Cranch) 137, 177 (1803)
  5. No doubt the four cases discussed herein are a small sample, but these four are representative of Justice Sotomayor’s approach to the religion clauses. And while past experience does not guarantee future performance, absent a time machine the opinions of the past are the only ones we can read—the opinions of the future being necessarily beyond human ken. With that said, a more comprehensive review of Justice Sotomayor’s religious liberty jurisprudence is the Brookings Institution’s “God in Government: Judge Sotomayor’s Church-State Record” (July 7, 2009), www.brookings.edu/opinions/2009/0707_sotomayor_rogers.aspx.
  6. http://openjurist.org/352/f3d/582/ford-v-mcginnis
  7. 841 F. Supp. 1365 (S.D.N.Y. 1993); http://judiciary.senate.gov/nominations/SupremeCourt/Sotomayor/upload/Supplemental-Attachment-18-Flamer-v-City-of-White-Plains.pdf
  8. 854 F. Supp. 194 (S.D.N.Y. 1994)
  9. 441 F.3d 96 (2006); http://openjurist.org/441/f3d/96
  10. http://religionclause.blogspot.com/
  11. www.bjconline.org/index.php?option=com_content&task=view&id=2624&Itemid=134
  12. www.usnews.com/blogs/god-and-country/2009/05/26/why-the-white-house-will-promote-sotomayors-religious-liberty-record.html
  13. www.aclj.org/Issues/Issue.aspx?ID=5
  14. Charles C. Haynes, “Sotomayor, Religious Freedom and the Great Unknown,” First Amendment Center, www.firstamendmentcenter.org/commentary.aspx?id=21631

Author: David A. Pendleton

David A. Pendleton has served as a schoolteacher, college instructor, trial lawyer elected state legislator, and policy advisor to a state governor, and now adjudicates workers' compensation appeals in Honolulu, Hawaii.

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