Judge Sotomayor has now left the building. Having kept one ear on the webcast today and skimmed SCOTUSblog's excellent liveblog of Tuesday and Wednesday's sessions, the only discussion I saw of religious liberty was an exchange between Senator Cardin and the judge on the Ford v. McGinnis case. That exchange appears below the fold, and the video of it is here (it begins around 36:00). (If you'd like more background on the case, I briefly discuss it here.)
I appreciate the fact that Cardin asked about religious liberty; indeed, it appears that he alone took the time to engage Sotomayor on this topic. I wish, however, that Cardin had used his question to ask not only about religious freedom generally but also specifically about the Establishment Clause, particularly given Sotomayor's relatively thin record in that area.
It's a real strain to find new insight into Sotomayor's views in her answer. She called the right to religious freedom a "very important and central part of our democratic society," and she recognized the Establishment Clause, along with the Free Exercise and Free Speech Clauses, as playing a key role in protecting religious liberty. Sotomayor said the Constitution restricts "the state from establishing a religion." (Sotomayor wasn't trying to quote the First Amendment, but it's worth noting that the First Amendment says, "Congress shall make no law respecting an establishment of religion," not establishment of "a religion." Thus, the Court has held that the government is barred not only from promoting one faith over another but also from promoting religion generally over nonreligion (or vice versa). Cardin or one of the other Senators could have used that comment as a good hook for a follow-up question exploring Establishment Clause principles, but it was not to be.)
There's still time for written questions from the Senators. But the teachable moment for Americans is basically over, and the opportunity to engage Sotomayor in conversation is certainly over.
Given the rest of her testimony, it's not likely we would have learned a great deal about her views in this area even if better (and more) questions had been asked. But we might have gotten a few more signals and the issue would have been given some of the attention it deserves.
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.
CARDIN: Well, thank you for that answer. And, again, thank you very much for the manner in which you have responded to our questions. Thank you, Mr. Chairman.
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