Church, state and Sotomayor: opinions to ponder.

Americans United's Legal and Legislative Departments are closely studying Sonia Sotomayor's record on issues touching on church and state. The Supreme Court nominee has ruled on only a handful of religious liberty cases.

As a lower court judge, Sotomayor was required to follow what she believed to be Supreme Court precedent. Therefore, the decisions give only an impression of how she might rule on such questions if she is confirmed by the Senate for the high court.

Here are some rulings AU staff members are examining:

In a prisoners' rights case before the 2nd Circuit, Sotomayor upheld a Muslim inmate's free exercise fight to participate in an Islamic religious feast. In Ford v. McGinnis (2003), the prisoner's beliefs about the timing and significance of the feast did not comport with Islam's actual requirements, according to testimony by religious authorities.

Sotomayor stated that the key issue in the case, however, was not the reasonableness of the prisoner's asserted religious belief, but whether the prisoner sincerely held that belief. She wrote, "[C]ourts have no aptitude to pass upon the question of whether particular religious beliefs are wrong or right."

Also as a Second Circuit judge, Sotomayor ruled in Rosario v. Does (2002) that a school board could terminate a teacher's employment for speaking with students about her religious views, inviting students to accept Jesus as their savior and praying with students.

After a student died in a drowning accident, Mildred Rosario, a Pentecostal substitute teacher from the Bronx, invited her public school students to "accept Jesus" as their savior and she put her "hand on their forehead asking Jesus to take care of them and their families."

Once confronted by school officials, Rosario refused to promise the proselytism would not occur again, which, in addition to her poor teaching performance, led to her dismissal. Rosario sued the New York Board of Education, arguing that the firing was motivated by an anti-Christian and anti-Puerto Rican bias.

The panel of judges, which included Sotomayor, wrote that the school board's "strong, perhaps compelling interest in avoiding Establishment Clause violations justified its actions."

In Flamer v. White Plains (1993), a rabbi sought to erect a temporary menorah in a White Plains, N.Y., city park during Hanukkah. In response, the city council passed a resolution that banned religious displays from the park.

Then-District Court Judge Sotomayor struck down this measure as an unconstitutional content-based regulation of speech that discriminated against religious speech. She said that since the city already allowed some fixed displays, such as tents and signs for multi-day festivals, Christmas trees donated to the city and United Way signs, it could not ban only religious symbols. Sotomayor endorsed a legal "rule" that private displays erected in public forums will almost never violate the Establishment Clause.

Sotomayor's statement of the governing legal principle represents a less nuanced view of the Establishment Clause than that expressed a few years later by those justices on the Supreme Court who have supported a robust separation of church and state--Justices Breyer, O'Connor, Souter, Stevens and Ginsburg. In Capitol Square v. Pinette (1995), those Justices eschewed a legal "rule," opting instead for a fact-sensitive assessment of many factors, including the nature of the speech, the proximity to government buildings, the presence of other items, the frequency of past displays, and whether the display included a disclaimer of governmental sponsorship.

Also while a district judge, Sotomayor ruled that a United States Post Office could use its own holiday decorations to promote business, but was not required to accept other decorations from members of the public. In Mehdi v. U.S. Postal Serv. (1997), the post office decorated its office with Christmas trees and menorahs.

A Muslim group sought to display its religious symbol of a crescent and star, and asked the court to either remove the Christmas tree and menorah, or to allow the Muslim symbol to also be displayed.

Sotomayor allowed the Christmas tree and menorah to remain and said the post office did not have to display the Muslim symbol. She concluded that the post office could "decorat[e] its facilities as a means of promoting its business." She held that "opening up post offices to seasonal displays by the public would interfere with the Postal Service's own use of decoration to further its business."

In a footnote in Mehdi, Sotomayor stated that the Muslim plaintiffs lacked "standing"--the right to sue--simply because they were offended by the displays. (She acknowledged, however, that they had taxpayer standing.) That statement is troubling to civil liberties activists because the courts had, by that time, unanimously concluded that people have standing to challenge religious displays with which they come into contact. What was unclear from the decision in Mehdi was whether the plaintiffs had actually viewed the displays.

In Campos u. Coughlin (1994), another district court decision, Sotomayor upheld a free exercise claim by Santeria prisoners who said they had the right to wear multiple strands of beads under their clothes as part of their religion. The prison rule in question prohibited wearing of beads, but allowed other prisoners to possess rosaries or dhikr beads.