Legal Groups Seek Clues as to How Sotomayor Might Handle Religion Cases

By Adelle M. Banks
Religion News Service
Saturday, July 18, 2009

As a federal judge, Sonia Sotomayor sided with Santeria prisoners who wanted to wear religious beads and Muslim inmates who wanted to break the fast during the holy month of Ramadan.

At the same time, she ruled against Muslims who wanted a Muslim crescent and star added to post office holiday displays that featured Christmas and Hanukkah symbols.

Experts who monitor church-state cases say -- as on other matters -- that Sotomayor's past decisions indicate that she's hard to pigeonhole.

"They're certainly not totally predictable in terms of her siding with one side or another," said Howard M. Friedman, a retired law professor at the University of Toledo, whose Religion Clause blog tracks church-state legal developments. "She looks pretty carefully at all the facts."

Church-state legal groups, including Americans United for Separation of Church and State and the Baptist Joint Committee, have issued legal analyses of Sotomayor's lower court decisions as they seek clues to how she might rule if confirmed to the nation's highest court.

The Rev. Barry Lynn, executive director of Americans United, said Sotomayor seems to seriously consider the First Amendment's protections for the "free exercise" of religion, along with other legal principles.

"Certainly on the free exercise side she is nuanced," he said. "She does clearly believe that claims of religious freedom are to be taken seriously, but that doesn't always mean that the religious person making the claim wins."

Other church-state experts found evidence of Sotomayor's sensitivity to religious minorities in prison cases. K. Hollyn Hollman, general counsel of the Baptist Joint Committee, pointed to Sotomayor's decision in a case involving two New York inmates who wanted to wear beads related to their Santeria faith, which combines Catholic and traditional African practices.

"She recognized explicitly that the plaintiffs' beliefs, even if unfamiliar, deserve First Amendment protection from overly broad rules that burden the practice of non-mainstream religion," Hollman wrote in her analysis.

In addition to prisoner cases, Sotomayor joined colleagues on the 2nd U.S. Circuit Court of Appeals in a 2002 ruling supporting New York's Fifth Avenue Presbyterian Church, which fought the city for the right of homeless people to sleep on its steps.

"She was essentially vindicating the church's ability. . . to enact its ministry," said Nathan Diament, director of public policy for the Union of Orthodox Jewish Congregations of America.

Experts say Sotomayor's potential rulings on the First Amendment's Establishment Clause -- which prohibits a governmental establishment of an official religion -- might be even harder to gauge.

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