May (Web-only) 2009

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As churches and religious groups eye President Obama's Supreme Court pick, U.S. Circuit Judge Sonia Sotomayor, they will likely take keen interest in her religious freedom cases. During her career, Sotomayor has written several decisions that involve religious freedom and church and state conflicts; these appear to support the position of many churches, or, at the very least, raise few red flags.

Sotomayor's position on the First Amendment is perhaps clearest in her lone dissent in Hankins v. Lyght (2006). In this case, John Paul Hankins, a United Methodist minister, was forced to retire because he was 70 years old. He sued, arguing that this was a violation of federal law barring age discrimination in employment. The court ruled that the Religious Freedom Restoration Act (RFRA) gave religious groups an exemption from such laws. In her dissent, Sotomayor made arguments that provide a window into her interpretation of the First Amendment.

Sotomayor did not equate RFRA with the protections found in the First Amendment. She argued that RFRA does not, as its title suggest, "restore" the religious freedoms found in the First Amendment. Rather, RFRA provides new, additional religious freedom protections for individuals from government. In this age discrimination case, the dispute was between two private parties and the government was not involved. As a result, Sotomayor argued that only the protections found in the First Amendment apply.

This raises the question, What protections does the First Amendment provide? Sotomayor used the "Lemon Test" (named for 1971 Supreme Court Lemon v. Kurtzman decision) to answer this question: Does the law have a secular purpose? Does the law either inhibit or promote religion? Does it foster entanglement of religion and government?

Sotomayor answered these questions by arguing that the age discrimination statutes had a secular purpose and did not inhibit religion. When she considered "entanglement," she could have decided that it did not entangle religion because the age discrimination regulations are simple and do not interfere with explicitly religious beliefs or practices. However, Sotomayor argued that because the case involved the selection of religious leaders, the church was exempt from the federal age discrimination regulations.

Her writing in other cases sheds additional light onto her positions on religion and the law:

• In Ford v. McGinnis (2003), she ruled in favor of a Muslim prisoner who had been denied an Eid ul Fitr feast (at the end of Ramadan). The prisoner believed that it was important to hold the feast immediately at the end of Ramadan and that it should not be put off. The prison provided the feast, but did so a week late because of a request from a Muslim chaplain. As part of her decision, she sided with the prisoner, arguing that when considering a religious belief, it is the sincerely held belief of the individual that matters, not those of religious groups or the government.
  
  

• In Mehdi v. United States Postal Service, Sotomayor ruled against a Muslim group that wanted to have the post office display the star and crescent alongside secular symbols of Christmas and Hanukkah. In addition to arguing that post offices were not public spaces, Sotomayor argued that the post office did not need to display the star and crescent because the government was not supporting certain religious holidays (nor was it stopping religious groups from expressing themselves).
  
  

• Flamer v. City of White Plains (1993) was a case in which an Orthodox rabbi challenged a city regulation barring fixed religious displays from public spaces, such as the city park. Flamer wanted to erect an illuminated menorah during Hanukkah. Sotomayor ruled in favor of the rabbi, arguing that any "reasonable observer" would realize that the menorah or other religious expressions were not endorsements by the city but private expressions.
  
  

The past, of course, is not always a predictor of the future. In her judicial roles, Sotomayor has been bound by U.S. Supreme Court rulings. She would not be the first on the Court to rule differently once given the freedom to do so.

However, there seem to be reasons for religious groups to hope that Sotomayor would be good news for religious freedom. She interprets the Constitution as limiting the entanglement of government and religion, even in the area of age discrimination where there are no explicit religious beliefs involved and regulation would be minimal. She gave deference to the individual's conscience when deciding what is a religious belief or practice. She appears to be somewhat permissive of governments allowing some religious holiday displays (and not others). Evangelicals may disagree with her positions on other issues or with her judicial philosophy, but Sotomayor's rulings on religion do not appear to be a major cause for concern.

Tobin Grant is an associate professor of political science at Southern Illinois University — Carbondale. He is coauthor of Expression vs. Equality: The Politics of Campaign Finance Reform and many academic articles on politics and religion.

Christianity Today covers more political developments on the politics blog.

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