Faith, Freedom, and Justice Sonia Sotomayor (Liberty 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. She would bring wide-ranging experiences to the Court: prosecutor, civil litigator, federal trial judge, federal appellate judge, law school instructor, and Hispanic woman. While not a Horatio Alger rags-to-riches success story, she comes pretty close.
As only the second Hispanic named to the Court, 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.
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 judges 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 nation¹s 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.”
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.
A quartet of cases gives voice to her views regarding the religion clauses. Ford v. McGinnis, 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 Plains 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.
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. Coughlin is a third case that can serve as a window on Sotomayor¹s approach to religious freedom issues. Campos also involved incarcerated individuals, 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. Lyght 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 church¹s 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.
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.”
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.
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.
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.” 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, a former legislator, adjudicates workers compensation appeals in Honolulu, Hawaii.
Although ReligiousLiberty.TV is not affiliated with Liberty Magazine, we strongly support the magazine and are pleased that the magazine and the author have granted us permission to repost this informative article about the views of the newest Justice on the United States Supreme Court on the intersection of church and state. If you enjoy this article, please consider subscribing (it is only $7.95 a year) or contributing to further the mission of the magazine. RLTV Editor
PRECEDENT – A century ago religious groups tried to change the California Constitution to enact a religious law
The following is from Liberty, published by General Conference of Seventh-Day Adventists Religious Liberty Bureau, National Religious Liberty Association, Religious Liberty Association of America, Published by Review and Herald Pub. Association, 1908. Click here to see the original online.
The Outlook for a Sunday Law in California
J. O. CORLISS
California is the only State in the American Union without a Sunday law. From 1858 to 1883 a Sunday-rest statute in that State was made so annoying to many of its citizens that it became an object of political contention. The supposed dominant party, through church affiliations, inserted a plank in its platform, pledging itself to maintain the Sunday law for the betterment of the laboring class. The other party went to the polls, on a pledge to repeal the existing statute requiring Sunday rest, on the ground of its hostility to religious rights.
The result was a political upheaval in favor of repealing all Sunday laws in the State of California. About the same time the State supreme court handed down a decision in the case of ex parte Newman, declaring a Sunday law unconstitutional. Since then three attempts have been made by the churches to have the legislature re-enact a Sunday-law statute. These advances have been coldly met, on the ground that any such statute could have no force in the face of the constitutional limitation.
In 1906, however, an astute lawyer was employed to draw up a bill providing for a Sunday-rest clause in the constitution itself. The text of this bill was given to the public months before the legislature met in 1907, and therefore was quite carefully considered, both by the people and by the legislature. To carry such a measure would require forty-five of the sixty-six votes of the assembly present, before whom the bill first came up for consideration. But when the tally-sheet was made up, it revealed that forty-six had voted ” no,” and but twenty had voted ” aye “— a most dismal failure.
Of course the church people were not satisfied. So they have determined to approach the- legislature of 1909 with another proposition looking to the enactment of a Sunday-rest law. The exact line of their contemplated action has not yet been made public. But the International Reform Bureau has been operating in the State, through its Pacific Coast superintendent, since early in the year. Sunday-rest leagues have been organized wherever possible, and money pledges, in monthly instalments, have been secured from all who would contribute.
In a letter written by the Pacific Coast superintendent regarding the object of his work, he says: ” Our movement in favor of a Sunday rest for California is not intended in any sense as religious legislation.” Yet in another sentence he says: ” The rights of those who refrain from labor on Saturday, or any other day of the midweek, will be guarded by the framing of the bill.” But if the bill to be is not ” in any sense ” to cover religious points, then why provide exemption from its penalties for those who observe some other day? If these refrain from labor on Saturday, some basis for their action must be apparent. There are no social or civil organizations requiring such rest; therefore the only motive for such an act must be that of conscience.
In this case the bill would have to do with religious convictions; and to provide exemption for these would be positive religious enactment in behalf of a limited number. This would be nothing short of class legislation, and inimical to the bill of rights, which declares that all persons are equal before the law of the State.
This would be nothing short of class legislation, and inimical to the bill of rights, which declares that all persons are equal before the law of the State.
But suppose it were civilly admissible to exempt a small class of people from the penalties to be inflicted upon the general offender of a Sunday law, and public sentiment could be led to indorse such a measure on the ground that the exemption clause relieved everybody from hardship. In that case, might not a reverse sentiment among the people lead to the repeal of the exemption clause, and so bring misfortune to the minority? Having committed itself to such legislation in the first instance, how could a legislature resist huge petitions in after-time, which would demand the repeal of the contested clause? Such a clause being enacted by a body of lawmakers, the same body would have the authority to eliminate it at will. And being of a religious nature, prejudice easily could suggest its rejection, to the detriment of a class of loyal citizens. It were far better to leave well enough alone.
If the rights of the laboring class to one day in seven for rest is all that is sought, why not be satisfied with the statutes already designed to guard these rights? An act approved Feb. 27, 1893, as recorded in Statutes of 1893, page 54, of the State of California, provides that ” every person employed in any occupation of labor shall be entitled to one day’s rest in seven, and it shall be unlawful for any employer of labor to cause his employees, or any of them, to work more than six days in seven; provided, however, that the provisions of this section shall not apply to any case of emergency.”
This is as nearly a civil rest-day enactment as could be framed, and should satisfy those who desire only civil legislation securing to the people the right to one day’s rest in seven. But it does not meet the demands of those who are behind the Sunday-law movement. They not only want a day of rest for all each week, but a definitely named day of each week,— the day they have set apart for religious services. But to go so far is to graft a religious sentiment onto civil legislation, and so unite, to that degree, religion and the state.
All honor to California for having so long resisted advances in this direction. How the Sunday-law element will frame their bill for the coming session of the legislature we are not yet informed. They know well that a common statute Sunday law has been pronounced unconstitutional in California. To reach the required two-thirds majority of votes to carry a constitutional amendment, can hardly be realized at this stage. Whether this will be attempted or not, none but those in the secret know.