Secular Coalition Urges Senators to Address Church-State Separation in Sotomayor Hearings

The Secular Coalition today urged the members of the Senate Judiciary Committee to address the topic of religious liberty during Justice Sotomayor's confirmation hearings. 

In a letter sent to the DC offices of the 19 senators in the committee, the Coalition praised Justice Souter's strong history of defending the separation of church and state and reiterated the significance of the upcoming confirmation hearings in light of that legacy.

The following is the text of the letter sent to Senator Patrick Leahy, Chairman of the Senate Judiciary Committee.  Similar letters were sent to the other members.

June 29, 2009

The Honorable Patrick Leahy

United States Senate

Washington, DC  20510


Dear Mr. Chairman:


We commend you on your actions to ensure a fair and adequate process for the Senate Judiciary Committee's review of President Obama's nomination of Judge Sonia Sotomayor to the United States Supreme Court.  Any appointment to the Supreme Court is a momentous event in the life of our country.  However, this particular nomination is of singular importance to those of us who cherish the wall separating church and state.  This is so because, first, Judge Sotomayor would succeed Supreme Court Justice David Souter, a justice whose opinions on church-state separation have always been principled and thoughtful, and, second, there are deep divisions in the current court on questions related to religion.

Justice David Souter's legacy will include his finely crafted opinions involving the Establishment Clause of the First Amendment to the U.S. Constitution.  Those opinions demonstrated an understanding of the Framers' concern about "the civic divisiveness that follows when Government weighs in on one side of religious debate..." [1] and the need to protect the freedom of conscience for all.[2]

With a Supreme Court that has frequently decided questions affecting the application of the Establishment Clause by the narrowest of margins,[3] it is extremely important that the next justice share Justice Souter's respect for the separation of church and state. Judge Sotomayor does not have an extensive record on church state matters. In order to ascertain whether or not she will similarly uphold the Establishment Clause, we believe that it is important that Judge Sotomayor be asked the following questions.

  1. Do you believe that the "First Amendment mandates governmental neutrality between ... religion and nonreligion"?[4]

    In McCreary County v. ACLU of Kentucky Justice Souter affirmed a decision upholding a preliminary injunction that required the removal of a government sponsored 10 Commandments display because of the clear religious purpose behind the display.  Justice Souter's opinion relied on the principle of government neutrality set forth in Epperson v. Arkansas.  In his dissent from the McCreary decision, Justice Scalia rejected the principle of neutrality and argued instead that "even an exclusive [government] purpose to foster or assist religious practice is not necessarily invalidating."[5]

  2. Before the government gives money to a religious organization, how sure must it be that none of the money will be diverted to religious activities or proselytizing?

    Religious organizations receive all sorts of governmental services from fire protection to sewage disposal.[6]  However, public funds may not be used for religious activities or proselytizing.  Although Justices O'Connor in her concurring opinion and Justice Souter in his dissenting opinion in Mitchell v. Helms, [7] come to different opinions as to the permissibility of the aid at issue in that particular case, both of their opinions emphasize the importance of ensuring that there are adequate safeguards to prevent the diversion of governmental aid to support the religious mission of institutions receiving the aid.

  3. Do you believe that taxpayers can be subjected to employment discrimination by religious institutions when applying for jobs financed by their own tax dollars?

    Under the rubrics of charitable choice and the Faith-Based Initiative, religious organizations that receive federal grants to provide social services have been permitted or even encouraged to use religious criteria to discriminate in hiring for the programs receiving those grants.  We believe that such discrimination violates the Establishment Clause.

  4. Do you believe that religious bigotry may ever be used as a basis for civil or criminal law?

    As Justice Kennedy wrote in striking down a Texas anti-sodomy law in Lawrence v. Texas,[8] "It must be acknowledged, of course, that the Court in [a previous case upholding a Georgia anti-sodomy law] was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family... The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law."

We appreciate your attention to these questions as you prepare for these critical hearings.



Sean Faircloth

Executive Director

Secular Coalition for America


[1] McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005). 

[2] Zelman v. Simmons-Harris, 536 U.S. 639 (2002), Justice Souter in dissent.

[3] See, e.g., McCreary and Zelman, supra, and Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007).

[4] Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

[5] McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), Justice Scalia in dissent,

[6] Everson v. Board of Ed. Of Ewing, 330 U.S. 1 (1947).

[7] Mitchell v. Helms, 530 U.S. (2000).

[8] Lawrence v. Texas, 539 U.S. 558 (2003).

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