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As churches and religious groups eye President Obama's Supreme Court pick, U.S. Circuit Judge Sonia Sotomayor, they will likely take keen interest in her religious freedom cases. During her career, Sotomayor has written several decisions that involve religious freedom and church and state conflicts; these appear to support the position of many churches, or, at the very least, raise few red flags.

Sotomayor's position on the First Amendment is perhaps clearest in her lone dissent in Hankins v. Lyght (2006). In this case, John Paul Hankins, a United Methodist minister, was forced to retire because he was 70 years old. He sued, arguing that this was a violation of federal law barring age discrimination in employment. The court ruled that the Religious Freedom Restoration Act (RFRA) gave religious groups an exemption from such laws. In her dissent, Sotomayor made arguments that provide a window into her interpretation of the First Amendment.

Sotomayor did not equate RFRA with the protections found in the First Amendment. She argued that RFRA does not, as its title suggest, "restore" the religious freedoms found in the First Amendment. Rather, RFRA provides new, additional religious freedom protections for individuals from government. In this age discrimination case, the dispute was between two private parties and the government was not involved. As a result, Sotomayor argued that only the protections found in the First Amendment apply.

This raises the question, What protections does the First Amendment provide? Sotomayor used the "Lemon Test" (named for 1971 Supreme Court Lemon v. Kurtzman decision) to answer this question: Does the law have a secular purpose? Does the law either inhibit or promote religion? Does it foster entanglement ...

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May 2009

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