Why the White House Will Promote Sotomayor's Religious Liberty Record

Dan Gilgoff, God & Country

Sonia Sotomayor's thin record on abortion, including a couple of rulings that favored abortion foes, will probably comfort conservative religious groups, continuing President Obama's strenuous campaign to reach out to such groups. But the White House will be loath to sell its first Supreme Court nominee as an abortion moderate, lest it alarm abortion-rights groups on the left.

Instead, the White House is already spotlighting Sotomayor's record on religious liberty cases, where her rulings are likely to please religious conservatives.

In a backgrounder sent to reporters this morning, the White House highlights Sotomayor's opinion in a 2006 case in which a 70-year-old Methodist minister sued his church for enforcing its mandatory retirement rulings. He claimed that he was a victim of age discrimination.

Sotomayor "argued in dissent that the federal government risks 'an unconstitutional trespass' if it attempts to dictate to religious organizations who they can or cannot hire or dismiss as spiritual leaders," the backgrounder says. It's the kind of church-state separation opinion—protecting the church from the state, as opposed to the other way around—that will please religious conservatives.

The public policy arm of the Orthodox Union, Orthodox Judaism's umbrella organization in the United States, has identified 3 additional Sotomayor rulings in which she sided with religious plaintiffs over the state.

I'm betting that the White House will highlight these cases to religious groups in coming days:

• 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. "[C]ourts have not aptitude," she wrote, "to pass upon the question of whether particular religious beliefs are wrong or right."

On a related note, Americans United for Separation of Church and State released a wary-sounding statement on Sotomayor, including these lines:

It appears that Sotomayor has not written widely on church-state issues, meaning the [Senate Judiciary] committee has an obligation to ascertain her views....

"Americans United looks forward to working with the Judiciary Committee to draft a series of questions for Judge Sotomayor," said [Americans United Executive Director Barry] Lynn. "We hope the coming weeks shed more light on her views on important religious liberty issues."

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