Before the confirmation hearing for Supreme Court nominee Sonia Sotomayor began, the Baptist Joint Committee’s legal staff completed a comprehensive analysis of Judge Sotomayor’s written opinions in cases involving the First Amendment’s protection of the free exercise of religion and its prevention of the government establishment of religion. In the report, BJC General Counsel K. Hollyn Hollman examines Sotomayor’s record and explains what it reveals about her jurisprudence when it comes to protecting the two religion clauses.
The Baptist Joint Committee finds no red flags in Judge Sotomayor’s record, but her judicial writings do not provide complete assurance to those who are most concerned about religious freedom rights, and her record fails to articulate fully how the First Amendment protects religious liberty.
In a closely divided court, her replacement of Justice David Souter, an unswerving protector of religious liberty, could have major implications. The report refers to Justice Souter as “the author of many important decisions in favor of religious liberty” and a “significant defender of the separation of church and state.”
Judge Sotomayor authored opinions suggesting a strong willingness to protect the free exercise of religion — even in difficult settings such as prisons and in cases where the religious practices are unfamiliar. Sotomayor participated in fewer Establishment Clause cases, but her opinions in that area generally fit within the mainstream of Supreme Court decisions.
Sotomayor heard several free exercise cases involving constitutional and statutory claims. Although her precise judicial philosophy in these cases cannot be fully determined, her opinions largely are in keeping with the Baptist Joint Committee’s support for robust interpretation of free exercise rights. In the report, the organization says her decisions upholding prisoners’ religious rights in Ford v. McGinnis and Campos v. Coughlin demonstrate that “proper analysis of a free exercise claim begins with the identification of the sincerity of the religious belief.”
While some of the most contentious and closely divided Supreme Court cases arise under the Establishment Clause, the Baptist Joint Committee’s analysis finds that Sotomayor’s judicial record includes very little in this area. In two cases (Flamer v. City of White Plains and Mehdi v. United States Postal Service) she addressed claims related to religious displays on government property, both times upholding the displays over Establishment Clause objections. The Baptist Joint Committee does not disagree with the outcome in these cases, but they are fact-specific and, unfortunately, reveal little about her overarching view of Establishment Clause jurisprudence.
The Baptist Joint Committee is a 73-year-old, Washington, D.C.-based religious liberty organization that works to defend and extend God-given religious liberty for all, bringing a uniquely Baptist witness to the principle that religion must be freely exercised, neither advanced nor inhibited by government.
