Church-State Experts: Sotomayor's Views Unknown

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Some church-state experts say Supreme Court nominee Sonia Sotomayor has virtually no written track record on constitutional issues relating to religion.

There appears to be just one case that is being cited repeatedly since her name popped up as a potential replacement for Justice David Souter. That's a case called Hankins v. Lyght, in which a minister claimed he had been discriminated against by being forced into retirement too young.

Courts have long held that religious groups are generally exempted from anti-discrimination laws (whether on age, disability, etc), that courts cannot be the judge of whether clergy are "fit" to do their job. What was new and unusual in Hankins v. Lyght was the court applying the Religious Freedom Restoration Act, saying RFRA can be read very broadly. Sotomayor dissented, arguing for a more limited reading of RFRA.

Some people think her dissent suggest insensitivity to religious groups, says George Washington University church-state scholar Robert Tuttle, who apparently disagrees. "I don't think that decision can tell you much . People are picking through it but there just isn't much else," he said this morning.

Tuttle's partner at GW, Ira Lupu, agrees her views on religion and the constitution aren't known. "I think people just don't know what her presence will do."

http://newsweek.washingtonpost.com/onfaith/godingovernment/2009/05/church-state_experts_sotomayors_views_are_unknown.html

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1. Small indications of her views on this here:

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=132&topic_id=8388366

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2. Not much here as these are related to Free Exercise claims but interesting:

* Flamer v. City of White Plains (1993). This case involved a suit by a rabbi who had sought permission to display a menorah in a city park, but was denied permission in light of a city council resolution barring fixed outdoor displays of religious or political symbols in parks. The rabbi's suit challenged the resolution as unconstitutional. Judge Sotomayor (then on the district court) agreed and struck down the resolution as a content-based regulation of speech that discriminated against religious speech.

* Campos v. Coughlin (1994). In this case, prison inmates asserted a free exercise right to wear multiple strands of beads under their clothes, as part of their practice of the Santeria religion. Judge Sotomayor upheld their claim.

* Ford v. McGinnis (2003). This case involved a suit by a Muslim prison inmate against state correctional officials who refused to let him participate in an Islamic religious feast. The district judge rejected the inmate's claim, relying on testimony by the religious authorities working in the prison that the prisoner's beliefs about the timing and significance of the feast did not comport with Islam's actual requirements. The Second Circuit reversed in a panel opinion by Judge Sotomayor which explained that the key question was not the objective reasonableness of the prisoner's asserted religious belief but whether the prisoner sincerely held the belief. Going further, Judge Sotomayor stressed that courts must be wary of evaluating claims about the content of particular religions or the importance of certain religious rites. "ourts have not aptitude," she wrote, "to pass upon the question of whether particular religious beliefs are wrong or right."

http://www.usnews.com/blogs/god-and-country/2009/05/26/why-the-white-house-will-promote-sotomayors-religious-liberty-record.html

[IDFbunny]

3. 1stA is not freedom FROM religion either

The anti-religionists interpretation is that religion can be stamped out anywhere in the 'public' sphere. Religion is to be exiled to the home.

[PurityOfEssence]

4. The horrors of the oppressed majority

Some people get rabid on the subject, but as a pretty damned hardcore anti-religionist, I don't see the necessity to stamp it out in public. The question is governmental endorsement of religion, and that's the problem.

If a person wants to place his/her symbol in full view of the public, then that's no problem, but when one puts it on public property, the inference is that this concept is endorsed by the government. It's not. Article One isn't talking about one religion over others, it's talking about the concept of religion itself.

If one's faith is so spindly and weak that it needs the approval of others to drown out one's own internal voices of doubt, then that's the problem of the particular believer.

As for the oft-repeated phrase you use (which I first heard from Gingrich somewhere around 15 years ago), it just confirms what many of us feel about religion: that it's something of an enslaving mindset that drives many to seek freedom from it.

Religion plays for keeps, and generally feels the right to be freed of the honorable constraints of other beliefs. "Ceremonial deism" and other excuses for encroachment are crap; each foothold is used as "proof" of societal "need" or endorsement of religion. We never should have allowed "In God We Trust" on our money, because it's used as "proof" to justify further intrusion.

The devil's in the details, dammit, and for those who shriek that those who man the parapets against the legions of certainty are out of line need a serious education in the concept of empathy and plurality. There's a reason why there's a correlation between religious belief and conservatism: they're both based on certainty and an unwillingness to accept difference.

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5. I was just guessing at Sotomayor's take on 1A

I agree with there should be no specifically endorsement of religion. But neither can it squelch the practices of individuals, even in public parks and prisons. I agree with her ruling at least in the case of Flamer V White Plains. White plains was regulating which displays were acceptable and which weren't based on religion. Why should one individual be allowed to display a statue of Darwin but not Santa.