Church-State Experts: Sotomayor's Views Unknown

By Michelle Boorstein

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 [about her church-state views]. 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."

Howard M. Friedman, professor of law emeritas at the University of Toledo, has posted an excellent summary of Sotomayor's religion-related decisions on his Religion Clause blog. Other religion and legal bloggers poring over the record of Sotomayor, a divorced Catholic, have come up with a few items, here and here.

By Michelle Boorstein  |  May 26, 2009; 9:36 AM ET  | Category:  God in Government Save & Share:                 
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