If the Senate confirms the nomination of Judge Sonia Sotomayor to the nation’s highest court, there will be six Catholics on the Supreme Court. So far this is the most reported religion-related issue in this nomination process. It’s also one of the least enlightening: Justice Antonin Scalia is Catholic; so was Justice William Brennan. A better source of insight into Sotomayor’s views is her judicial record, including her record on cases touching on the Free Exercise and Establishment Clauses of the First Amendment.[i]
Judge Sotomayor’s style is methodical and her church-state rulings are decidedly mainstream. Generally speaking, she is sensitive to the rights of religious people and groups to express their faith without unnecessary governmental interference, and she is protective of the prerogative of religious institutions to hire and fire their ministers free from state meddling. Sotomayor has not often had to face issues related to government sponsorship of religious messages, and she apparently has never decided cases involving government subsidies and religious institutions and activities. In part for that reason, Senators should engage Sotomayor in a discussion of the broad principles and values animating the constitutional commands on religious freedom.
Judge Sotomayor’s Church-State Record
Whatever the proper place of empathy in judging generally, a sort of empathy clearly has a role in free exercise jurisprudence, and Judge Sotomayor has practiced it. In order to be recognized as religious beliefs and practices deserving protection under the First Amendment, those beliefs and practices need not be shared by all or most members of a religious community, nor must they be familiar or even comprehensible to state officials.[ii] What is important is a particular litigant’s understanding of his or her faith.
A good illustration of Sotomayor’s adherence to this principle is found in a case involving a prison’s denial of the Eid ul Fitr feast to a Muslim inmate. [iii] This feast is “one of two major religious observances in Islam.”[iv] The prison delayed serving this feast and then denied it to the inmate, who then sued the prison. Religious authorities called by the government said the delay in serving the Eid ul Fitr meal drained it of any religious significance, and thus the inmate had no free exercise claim. Relying on this testimony, the lower court dismissed the lawsuit. The Second Circuit vacated this ruling and remanded the case, with Sotomayor writing for the court. She noted that, unlike the religious leaders, the Muslim prisoner sincerely believed the meal had great religious significance even when served more than a week late. It was the inmate’s beliefs that mattered, Sotomayor said. [v] Likewise, when Sotomayor confronted a case in which inmates sued prison officials for refusing to let them wear Santeria beads, and the government claimed this devotional practice was merely “optional,” Sotomayor did not simply take the officials’ word for it.[vi] The prisoners believed their failure to wear the beads would “result in negative, and possibly irreversible life consequences for the practitioner,” Sotomayor emphasized.[vii]
Her free exercise record also reveals that Sotomayor has been vigilant about detecting preferences for some faiths over others in government policies and practices. For example, she found fault with a prison rule that created, in her words, “a hierarchy of religious artifacts,” treating the items of some faiths more favorably than others.[viii] When there was no legitimate secular justification for these distinctions, it smacked of religious bias, something that deeply offends the Constitution.[ix]
Judge Sotomayor has not underestimated the challenge correctional officials face in dealing with these issues. She has pointed to “the complex nature and difficulty of accommodating various religious belief systems and tenets within a prison system, wherein violence is a real and daily threat.”[x] At the same time, she has pressed the government for credible evidence of a real need to burden faith in this and other contexts.
In the Santeria bead case, for example, she accepted corrections officials’ assertion that beads could be used as gang identification. But she also noted that prison administrators had not shown how that would be possible if inmates wore the beads under their clothing.[xi] Further, prison authorities had not produced any evidence that Santeria beads had ever been used by prison gangs, Sotomayor said.[xii] Prison security and safety are clearly compelling interests, she recognized, but correctional officials “cannot merely brandish” those words and expect to win their cases. [xiii] The fundamental right of free exercise should not be denied simply due to “speculative difficulty” or “administrative inconveniences.”[xiv]
In 2002 Sotomayor joined another opinion forcing the government to do more than give lip service to the free exercise of religion. The Second Circuit barred the City of New York from forcing homeless people to vacate a church’s property, where they had been invited to sleep.[xv] The church created the outdoor space “as a sanctuary for the service-resistant homeless who prefer not to sleep in shelters,”[xvi] and it sued the city when it attempted to stop the program. Sotomayor and her fellow judges rejected the city’s argument that this program did not qualify as an exercise of faith. The judges also saw through the city’s alternative argument that it had a compelling interest for disrupting this program because the homeless needed to be encouraged to access “a safer, more civilized alternative,” i.e., a shelter.[xvii] The point of the program, the court emphasized, was to minister to people who refused to go to shelters. The city’s attempt to restrict this religious practice was not justified by a compelling state interest, and thus violated the First Amendment’s Free Exercise Clause.
Judge Sotomayor also has been solicitous of First Amendment doctrine protecting religious institutions’ rights to hire and fire ministers without government interference, often known as the “ministerial exception.” When a Methodist minister claimed his forced retirement by a church body violated a federal age discrimination statute, Sotomayor said the federal statute did not apply in his case.[xviii] Congress recognized it would violate the First Amendment for a court to intervene in a job dispute between a religious body and a member of its clergy. Thus, it did not intend for the discrimination statute to cover such cases. “[C]ourts may not adjudicate employment discrimination lawsuits brought by clergy members challenging a religious body’s refusal to select or retain them as spiritual leaders,” Sotomayor said.[xix]
Sotomayor’s opinion in this case was a dissent.[xx] In addition to other disagreements with the court majority, she noted that this “ministerial exception” had not been displaced simply because other religious freedom legislation had been passed that might provide some overlapping coverage. Given the fact that Congress designed the legislation to enhance protection for religious exercise, she said, “it makes little sense to read th[at] statute as eliminating” other free exercise protections.[xxi]
In her seventeen years on the bench, Sotomayor has encountered few cases that required her to decide whether the government had promoted religion in violation of the First Amendment’s Establishment Clause, whether by advancing or sponsoring religious messages. As a trial court judge, she rejected an Establishment Clause defense asserted by the city of White Plains, New York, when it denied an Orthodox Jewish rabbi permission to display a menorah in one of two city-owned parks during Hanukah.[xxii] The parks had been the site of numerous festivals and events, some with temporary fixed structures, and the parks typically featured a “holiday tree” during the Christmas season. After the rabbi made his request, the city enacted a policy prohibiting fixed displays of religious or political symbols in the parks. Sotomayor first noted that “[r]eligious and political speech enjoy the full protection” of constitutional free speech guarantees, and that governmental restrictions on the content of speech must be justified by a compelling state interest.[xxiii] She found no compelling interest here, because this religious display did not violate the Establishment Clause. “Isolated religious displays on some public properties may indeed send a message of government endorsement of religion,“ she said, thus she was “sympathetic to the City’s concerns.”[xxiv] But expressive activities in public parks are and should be viewed as nongovernmental speech, except where the government made some effort to sponsor the speech or where the public park is “so intimately associated with the seat of government that it is viewed as a mere extension of the government.”[xxv] Neither factor was present here, according to the judge.
Also while serving as a trial court judge, Sotomayor rejected a lawsuit designed to force the United States Postal Service to display the Muslim Crescent and Star in its offices in conjunction with other holiday decorations, or remove Christmas trees and menorahs from its seasonal displays.[xxvi] At least some of the USPS’s holiday displays that incorporated Christmas trees and menorahs would pass muster under Supreme Court’s precedent, Sotomayor found, so the challenge to the policy as a whole must fail.
In 2002 Sotomayor and her colleagues on the Second Circuit turned away a substitute teacher’s appeal regarding religion in the classroom, in part for Establishment Clause reasons.[xxvii] The teacher claimed a school violated her First Amendment rights when it terminated her after she evangelized her sixth-grade students in the wake of an announcement that a fellow student had died. The appellate court panel that included Sotomayor noted that the school’s “ ’strong, perhaps compelling interest in avoiding Establishment Clause violations’ justified its actions. . . .”[xxviii] Given the fact that the substitute teacher had told her captive audience of young students things like “one must come through Jesus to get to God,” this is hardly a surprising result.[xxix]
In her opinions in this area, Judge Sotomayor makes little or no attempt to describe her overarching constitutional philosophy. Instead, she seeks to follow precedent and explains her reasoning in plain language. On free exercise and free speech matters, Sotomayor often demonstrates keen insight, good instincts, and a healthy independent streak. It is more difficult to describe her approach to Establishment Clause issues, given her thin record in that area.
How Might Sotomayor Change the Court?
Sonia Sotomayor will change the Supreme Court, if only because each new justice creates “a different court,” as Justice Byron White said.[xxx] It is impossible to say what those changes will be, and one does not fare much better when trying to make predictions about how a nominee will rule in particular Supreme Court cases. As a lower court judge, Sotomayor has been bound by Supreme Court precedent, and that means she has often had little room to express her own views about constitutional issues. If she takes a seat on the highest bench in the land, she still must respect earlier Supreme Court rulings, but she may also call for overruling those decisions when she believes it appropriate to do so. Other wild cards include the fact that cases have a way of presenting questions we could not have predicted, and answering those questions can scramble the usual alliances on the Court. Surprising clashes or bonds among the personalities on the Court also sometimes affect voting blocks.
Having said that, it is still worthwhile to attempt to make some comparison of Judge Sotomayor’s views and voice on these issues with those of Justice Souter. This comparison helps us understand what kind of change might be brought about by this transition.
A Justice Sotomayor’s votes in Free Exercise cases would be likely to be similar to those of Justice Souter. Both appear to care deeply about the right to be free from governmental interference with faith, and both seem to keep their eyes open for instances in which the government exhibits bias toward particular religions. At least as a lower court judge, Sotomayor has not shown the same interest Souter has in church-state history, including the original understanding of the Free Exercise Clause.[xxxi] And, with Souter’s retirement, the call for revisiting the Court’s well-known 1990 decision of Employment Division v. Smith may pass from the scene.[xxxii] But there’s a good chance we will find no difference in the kind of result these judges support in free exercise cases.
Sotomayor’s thin record on Establishment Clause issues make it more difficult to guess how she would approach and decide these issues on the Supreme Court. One possible contrast between Sotomayor and Souter in this area is that Sotomayor may gravitate toward brighter lines. A comparison of two opinions written by these judges in similar cases sheds some light on this possibility. Both judges reached essentially the same result, but their opinions reflect somewhat different sensibilities.
In 1995 Justice Souter wrote a concurring opinion in a case involving the temporary unattended display of a nongovernmental group’s cross in a public park. [xxxiii] Souter agreed that the state of Ohio could not ban this particular display, in part because it had allowed other temporary displays sponsored by nongovernmental groups in the park. At the same time, Souter emphasized that the Court must take pains to ensure that even religious speech by a nongovernmental speaker would not appear to a reasonable observer to be endorsed by the government.[xxxiv] The Court should not limit itself to looking for intentional endorsements or manipulations of the forum, Souter said. Instead, it should also consider factors like whether religious symbols dominate the forum.[xxxv] Further, Souter drew a distinction between cases involving unattended displays and remarks by citizens on government property. He said: “When an individual speaks in a public forum, it is reasonable for an observer to attribute the speech, first and foremost, to the speaker, while an unattended display (and any message it conveys) can naturally be viewed as belonging to the owner of the land on which it stands.”[xxxvi]
Like Souter, Judge Sotomayor has noted that “it is conceivable that private fixed religious displays in [public] parks could convey a mistaken impression of government sponsorship.”[xxxvii] But when she confronted an application by an individual to display a menorah temporarily in a public park, her approach differed from Souter’s in some significant ways. Where he saw possible storms on the horizon, she saw almost nothing but sunny sky. Sotomayor brushed aside attempts to distinguish cases involving oral expression on government property by religious speakers from those involving unattended religious displays.[xxxviii] Reasonable observers understand speech in public parks to be that of citizens, whether it is a spoken message or a menorah, she said. In public parks, Sotomayor wrote, “the absence of governmental sponsorship of private religious displays is strikingly clear.”[xxxix] Thus, “the existence or non-existence of accompanying secular symbols [in the park] should be of little import to the reasonable observer viewing religious displays in these quintessential public forums.”[xl] What seemed plain to Sotomayor did not seem nearly so clear to Souter.
Justice Souter was at least as exacting in his review of cases involving government funds and religious activities or institutions, while Judge Sotomayor apparently has not confronted these kinds of cases. Souter not only doggedly insisted that no government funding subsidize religious messages and activities, he also methodically charted his colleagues’ movement away from this interpretation of the Establishment Clause and flagged some of the new and sticky issues their posture would create, such as fights over the regulation following government funds to religious institutions. With more types of government funding flowing to more kinds of religious institutions and activities these days, these issues are sure to gain increasing prominence.
Questions for Sotomayor
In part because Judge Sotomayor’s record on Establishment Clause issues is quite limited, Senators should ask about her judicial philosophy on church-state issues. They should ask questions such as: What roles do the Free Exercise and Establishment Clauses play in the protection of religious freedom? 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. [xli]
Nominees must refrain from pre-judging cases, but answering these questions would not require the judge to cross that line. And while judicial nominees often attempt to engage questions without fully answering them, we still would likely learn something useful from Sotomayor’s reactions. In any case, in a nation where we often refer to religious liberty as our “first freedom,” no confirmation process would be complete without a discussion of this cherished human right.
[i] This essay is not an exhaustive description of Judge Sotomayor’s record in this area, but it does attempt to describe some of the more important aspects of that record.
[ii] Thomas v. Review Board, 450 U.S. 707, 714 (1981)(“religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”)
[iii] Ford v. McGinnis, 352 F.3d 582, 584 (2d Cir. 2003).
[iv]Id. at 584.
[v] The Second Circuit remanded the case, directing the lower court to determine whether the denial of that meal was reasonably related to a legitimate penological interest.
[vi] Campos v. Coughlin, 854 F. Supp. 194, 210 (S.D.N.Y. 1994). In this case, Judge Sotomayor directed prison officials to allow the inmates to wear the Santeria beads under their clothing while the inmates’ lawsuit was pending.
[vii]Id. “Whether plaintiffs represent a minority of Santeria practitioners is of no concern for this Court may not discern the propriety of religious practices, but merely the sincerity of plaintiffs’ religious beliefs.” Id. at n.13. Judge Sotomayor also has carefully examined assertions made by the government to cast doubt on the sincerity of free exercise claims. In the Campos case, for example, she corrected prison officials when they argued that inmates’ declarations of their faiths as “Christian” and “Catholic” meant that they were not sincere about their claims to be practitioners of the Santeria religion. Citing expert testimony, Sotomayor said: “There is nothing in the record to suggest that plaintiffs, although devout Santeria practitioners, do not also acknowledge certain aspects of Catholicism and Christianity, as do other practitioners of Santeria.” Id. at 201.
[viii] Campos, 854 F. Supp. at 198-199.
[ix]Id. at 214.
[x]Id. at 197.
[xi]Id. at 207-208.
[xii]Id. at 209 & n.12.
[xiii]Id. at 207.
[xiv]Id. at 208.
[xv] Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570 (2d Cir. 2002). In this case, the Second Circuit upheld the lower court’s grant of a preliminary injunction to the church. The injunction prohibited the city from interfering with homeless people who slept on church property.
[xvi]Id. at 572.
[xvii]Id. at 576.
[xviii] Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006)(Sotomayor, J., dissenting).
[xix]Id. at 118. This was true even though the statute would apply to religious institutions in other cases. Id. at n.12.
[xx] In Hankins v. Lyght, a majority of the Second Circuit vacated the lower court’s dismissal of the case. The court below had found that the ministerial exception blocked the minister’s lawsuit. The Second Circuit, however, said the Religious Freedom Restoration Act (RFRA) was most “on point” and should be read as the “full expression of Congress’s intent with regard to the religion-related issues” before the court. Id. at 102. The appellate court remanded the case for determination of whether application of the ADEA violated RFRA in this case. In her dissent, Judge Sotomayor argued that the church had waived the RFRA issue and that RFRA did not apply to disputes between private parties. Id. at 110-116. She also accused the court majority of violating a cardinal principle of judicial restraint by unnecessarily reaching the issue of RFRA’s constitutionality. Id. at 110-111. She characterized the remand of the case as “wasteful” and “unnecessary,” saying the lower court was not in any better position to decide the statutory or constitutional issues at stake. Id. at 118-119.
[xxi]Id. at 118.
[xxii] Flamer v. City of White Plains, 841 F. Supp. 1365 (1993).
[xxiii]Id. at 1372 & 1375.
[xxiv]Id. at 1376.
[xxv]Id. at 1380 & 1381.
[xxvi] Mehdi v. United States Postal Service, 988 F. Supp. 721 (S.D.N.Y. 1997).
[xxvii] Rosario v. Does, 36 Fed. Appx. 25 (2d Cir. 2002).
[xxviii]Id. at 27.
[xxix]Id. at 26.
[xxx] Linda Greenhouse, Every Justice Creates a New Court, The New York Times (May 27, 2009) http://www.nytimes.com/2009/05/27/opinion/27greenhouse.html
[xxxi] As his friend John McCausland, the vicar of Holy Cross Episcopal Church in Souter’s hometown of Weare, N.H. explained, Souter likes “old things.” David G. Savage, Justice Souter: Liberal or Conservative?, Los Angeles Times (May 4, 2009) at http://articles.latimes.com/2009/may/04/nation/na-souter4?pg=2 (John McCausland said: “He likes old things: furniture, the old Episcopal prayer book, old friends like me.”)
[xxxii] See Melissa Rogers, Justice Souter and the Court’s Church-State Balance (May 19, 2009) at https://www.brookings.edu/opinions/2009/0519_court_balance_rogers.aspx. Of course, some scholars and religious and civil liberties groups will continue to call for Smith’s reversal, even if those calls are rebuffed by the Court.
[xxxiii] Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995)(Souter, J., concurring in part and concurring in the judgment).
[xxxiv]Id. at 785-795.
[xxxv]Id. at 791-92.
[xxxvi]Id. at 786.
[xxxvii] Flamer, 841 F. Supp. at 1381.
[xxxviii]Id. at 1379.
[xxxix]Id. at 1380.
[xl]Id. at 1380.
[xli] Flamer, 841 F. Supp. at n.11 (“the Lemon [v. Kurtzman] test has come under fire by some members of the [Supreme] Court in recent years”) and Mehdi v. United States Postal Service, 988 F. Supp. at 729 (S.D.N.Y. 1997)(status of “endorsement test” might be “tenuous” at the “Supreme Court level.”)