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Sotomayor Questioned About Her Free Exercise Jurisprudence

By Howard M. Friedman

Finally yesterday, in the third day of Judiciary Committee hearings on the confirmation of Judge Sonia Sotomayor as Associate Justice of the United States Supreme Court, one Senator asked her a question about her decisions on religious freedom. Here, from the full transcript, is the relevant exchange between her and Sen. Benjamin Cardin (D-MD):

CARDIN: Well, let me conclude on one other case that you ruled on, where I also agree with your decision. That's the Ford v. McGinnis, where you wrote a unanimous panel opinion overturning a district court summary judgment finding in favor of the Muslim inmate who was denied by prison officials access to his religious meals marking the end of Ramadan.

You held that the inmate's fundamental rights were violated and that the opinions of the department of correction and religious authorities cannot trump the plaintiff's sincere and religious beliefs.

The freedom of religion is one of the basic principles in our Constitution, as I said in my opening comments. It was one of the reasons why my grandparents came to America. The freedom of religion, expression is truly a fundamental American right.
Please share with us your philosophy as to -- maybe it's a wrong use of terms -- but the importance of that provision in the Constitution and how you would go about dealing with cases that could affect that fundamental right in our Constitution.

SOTOMAYOR: I don't mean to be funny, but the court has held that it's fundamental in the sense of incorporation against the state. But it is a very important and central part of our democratic society that we do give freedom of religion, the practice of religion, that the Constitution restricts the -- the state from establishing a religion, and that we have freedom of expression in speech, as well.

Those freedoms are central to our Constitution. The Ford case, as others that I had rendered in this area, recognize the importance of that in terms of one's consideration of actions that are being taken to restrict it in a particular circumstance.

Speaking further is difficult to do. Again, because of the role of a judge, to say it's important, that it's fundamental, and it's legal and common meaning is always looked at in the context of a particular case. What's the state doing?

In the Ford case that you just mentioned, the question there before the court was, did the district court err in considering whether or not the religious belief that this prisoner had was consistent with the established traditional interpretation of a meal at issue, OK?

And what I was doing was applying very important Supreme Court precedent that said, it's the subjective belief of the individual. Is it really motivated by a religious belief?

It's one of the reasons we recognize conscientious objectors, because we're asking a court not to look at whether this is orthodox or not, but to look at the sincerity of the individual's religious belief and then look at what the state is doing in light of that. So that was what the issue was in Ford.

Also yesterday, Sen. Jeff Sessions entered into the record a letter (full text) from Richard Land, President of the Southern Baptist Convention's Ethics & Religious Liberty Commission, opposing Sotomayor's confirmation.

The Washington Post has transcripts of the questioning of Sotomayor by each of the Senators on the Judiciary Committee.

Full post as published by Religion Clause on July 16, 2009 (boomark / email).