A Supreme Separation of Church and State

Sarah Winkelstein, Maritza Gonzalez, Torie Bolger

POL 324
Professor Savchak-Trogdon
5 December, 2016

Introduction

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The Supreme Court of the United States is the highest federal court in the American
judicial system. Established in Section Three of the U.S. Constitution, the Supreme Court has the
power to create law based upon the very document they were established in. The eight associate
justices and one chief justice work together to ensure they come to the correct legal outcome.
Each justice votes their legal opinion on a case and majority opinion is the nationally recognized,
legal outcome. The method each justice takes to get to that opinion is different for each
individual. Although in an ideal situation each justice would put aside any outward influences
that could determine their decision, including their ideological background, socioeconomic
status, and gender, numerous critics have claimed that these are driving factors in court
decisions. On the front of religion, these critics are incorrect. Primarily this can be seen through
the interpretations of Justice Sonia Sotomayor and the late Justice Antonin Scalia that religion is
no longer a major contributing factor in Supreme Court justices opinions. Both Scalia and
Sotomayor have identified as Roman Catholic along with four other members of the court at that
time. The main belief of Catholics is that to get to heaven it is necessary to know and love God
(Catholic). Based on previous notions of religious influence, it would appear that they would rule
together on each issue. However these two justices, sharing in the same religion, are constantly
on different sides of the opinion. Scalia once said I had been very pleased and sort of proud that
Americans didnt pay attention to religion. It isnt religion that divides us anymore (Shemtob).
This statement holds true in the Supreme Court. It is important to recognize that each justice
brings their personal religious experiences to the bench, but the effect to which these experiences
dictate opinions it supremely different, particularly in social issues.

Part I: Information on Justices Sonia Sotomayor and Antonin Scalia

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Justice Sonia Sotomayor
Justice Sonia Sotomayor was born in 1954 in New York City to a factory worker and a
nurse (CNN Library). Her father Juan Sotomayor died when she was just nine years old of heart
problems (Bell). Growing up in the Bronx gave Sotomayor a different background than the other
Justices that sat on the bench with her and a different way of looking at the world. Sonia
Sotomayor attended Princeton University for her bachelor's degree and continued on to Yale
Law School to earn her J.D. (supremecourt.gov). The first step on Sotomayors professional
journey was serving as an Assistant District Attorney for New York. She continued on to serve
for the U.S. District Court and the U.S. Court of Appeals (supremecourt.gov). On May 26 th 2009,
Barack Obama nominated Sotomayor to the bench and officially on July 13 2009 she became the
first Hispanic Supreme Court Justice (CBS News).
Sotomayor is the sixth Catholic Justice to serve on this particular court. Although she
does not attend mass regularly, her faith may have shaped her upbringing and attitudes.
According to the New York Times, more than a dozen of Judge Sotomayors friends from high
school, college, law school and professional life said they had never heard her talk about her
faith, and had no recollection of her ever going to Mass or belonging to a parish (Goodstein). A
professor at UC Berkeley School of Law made the claim that although Sotomayor doesnt seem
overtly religious, her commitment to using the law to serve the greater good Is a mark of
religion, even if she didnt say so (Goodstein). In interviews, Sotomayor has said that she
thinks that it is an issue that there are five Catholics and three Jews on the court, she feels that
there should be more diversity (Eastman). The fact that Sotomayor thinks that religious diversity
on the bench is an issue shows that she believes that religion is a factor in decision making,

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however the court has still been divided on many subjects that should theoretically only have one
side based upon the religions of the justices.
The Late Justice Antonin Scalia
The late Justice Antonin Scalia held similar religious convictions as Justice Sotomayor,
but had an immensely different upbringing that had shaped his views and faith dissimilarly. Born
in Trenton, New Jersey to immigrant parents, Scalia spent his childhood in a multi-ethnic
neighborhood in Queens in New York City as the only child of his Italian-Catholic family, which
was considered a rare occurrence (Oyez). Scalia had admitted in the past that being the only
child had made him the prime focus of his familys attention which provided him with a sense of
security when growing up. But Scalia had also added that being the only child meant that the
expectations put upon him were immense (Oyez). Being the only child, Scalia established his
father as his role model that had influenced his life greatly; his father had provided him with
much of his core values of conservatism, hard work and discipline that he exhibited as an adult
(Biography).
Scalia excelled in academics. Having spent his elementary education at a public school
earning straight As enabled him to obtain a scholarship to Xavier High School in Manhattan, a
military school run by Jesuit order of the Catholic Church. It was at Xavier High School that
Scalias conservative and deep religious conviction was further developed (Biography). Future
New York State official William Stern remembered Scalia for those religious convictions during
their time as classmates: This kid was a conservative when he was 17 years old. An arch
conservative Catholic. He could have been a member of the Curia. He was the top student in the
class. He was brilliant, way above everybody else (Molotsky).

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His academic achievements progressed as Scalia continued his education at Georgetown
University, where he graduated as valedictorian and summa cum laude with a bachelors degree
in history. After graduation, he went on to study at Harvard Law thus commencing the beginning
of Scalias career in law. Following his time at the law offices of Jones, Day, Cockley & Reavis
and his teaching position at the University of Virginia Law School, Scalia found himself working
within the U.S. government after being appointed by President Richard Nixon general counsel
for the Office of Telecommunications Policy (U.S. News). Scalia then escalated his status within
the U.S. government, eventually gaining the honor of being confirmed by President Ronald
Reagan as Associate Justice of the U.S. Supreme Court upon the retirement of Chief Justice
Warren Burger (U.S. News).
During his 30 years on the Supreme Court, Scalia earned a reputation based on his
decisions and opinions written throughout his career; he was characterized as the anchor of the
courts conservative majority (Biography). His conservative background and religious
upbringing provided him with the convictions he carried throughout his tenure on the court.
Part II: Scholarly Research
Past Research on The Effect of Religion on Scalia and Sotomayor
The government of the United States was purposefully set up to not include religion in its
institutions, in fact expressly written in the Constitution, it states that No religious test shall ever
be required as a qualification to any office or public trust under the United States. (The
Constitution).

However, historically, those involved in these institutions hold religious

background that affects their work. Similar to the other branches of government, the Supreme
Court has lacked in diversity on the bench. Looking back at the religious makeup of the Court,
Christianity has dominated the justices, particularly Protestants, the majority religion in the

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United States. With the recent passing of Justice Scalia, the current bench is made up of five
Roman Catholics and three Jewish members. There is little doubt that religion plays a role in
political figures across the three branches of government; however, there is an extent to which
outside influences, such as religion plays a role for political actors, in this case, the justices on
the current bench of the Supreme Court. Each justice has a unique religious experience that
shapes their point of view. For late Justice Scalia, his religion played a prominent role and he
strongly acknowledged this. For every conservative Catholic such as Antonin Scalia, the current
member who most openly and publicly embraces his religion, there is a liberal Catholic such as
former justice William Brennan, his philosophical opposite. (Barnes, 1). As for fellow Roman
Catholic Justice Sotomayor, the role faith plays in her work has been questioned. A Senate
Judiciary Committee member, Senator Jeff Sessions stated the problem may be that Sotomayor
and other judges arent sufficiently religious. (Mehta).
Justice Scalia has been on the court long enough to make a reputation for himself as a
justice and as a Catholic. However, Critics at times have argued that Justice Scalias
Catholicism at times dictated his jurisprudence. (Dias). To understand Justice Scalias true
constitutional perspective, it is necessary to look at the connections between his personal
background, political ideology, and constitutional method (Kannar, 1300). In regards to his
personal background, it has been established that he was a devout Roman Catholic. This caused
him to take his moral perceptions, consider where they fit in with the law, and how he is able to
justify them into law. Scalia viewed himself as a constitutional originalist, meaning he defined
himself as someone who writes, interprets, and enforces law as written originally in the
Constitution, commonly known as the Framers intent (Heritage Guide to the Constitution). In
Casey v. Planned Parenthood, it has been said that Justice Scalia and Thomas, strict adherence

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to the meaning of the Constitution would account for their votes are readily as their religion,
while their fellow dissenters were not influenced by religion (Noonan Jr, 764). Scalias
originalist interpretations can be traced back to his social upbringing under Catholicism.
Justice Sonia Sotomayor is much newer to the court than Justice Scalia and it is difficult
to calculate her interpretations, however, based on her time in the lower courts and her
confirmation process, her judicial interpretation style is judicial realism. Judicial realism is that
common law is a subjective system that creates inconsistent results and are largely based on
political and ethical values (Legal Dictionary). For Justice Sotomayor, it is better to look at her
ideology rather than her religious upbringing as an indicator. Washington Post writer, Robert
Barnes, discusses the idea that for Sotomayor she seems likely to side more with colleagues
appointed by Democratic presidents than with the courts conservative Catholics, appointed by
Republicans. (Barnes, 2). This shows the difference between the paths of voting for both Justice
Scalia and Sotomayor.
Part III: Court Cases as Evidence
Religious Freedom Court Cases
Religious freedom has been a major issue on the Supreme Court since its creation in
1789. When the constitution was first created, religious freedom was a major right that the
founding fathers felt needed to be protected within the document. In 2010, exactly one year into
Sotomayors term and twenty-four years into Scalias, the case Christian Legal Society v.
Martinez was argued. This case is the most recent religious freedom case that the Supreme Court
has heard. This case was filed by the Christian Legal Society at Hastings College of Law. They
felt that Hastings College was infringing on their First Amendment rights by failing to recognize
them as a legitimate student organization. There was a rule set by the administration that stated

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all organizations must allow any student to participate, become a member, or seek leadership
positions, regardless of their status or beliefs (Oyez). This specific student organization did not
allow students to become voting members without signing a form saying that their beliefs
aligned with the beliefs of the organization. A major belief that this form covered was gay rights.
The Christian Legal Society would not allow anyone who aligned with the LGBTQ community
to join, which went against the rules set by Hastings College and therefore did not allow them to
be recognized as a legitimate organization on campus.
When looking at this case from a Catholic perspective, it seems that the answer should be
to allow the organization to be recognized. The Christian Legal Society had views that aligned
with the Catholic Church and for many years the church has been fighting to be allowed to be
exempt from various rules on the basis of religious freedom. Had all of the catholic justices ruled
on the basis of their religion, it would have been a minimum of a six-three majority for the
Christian Legal Society. This was not the case, Martinez won in a five-four decision saying that
religious freedom was not being infringed upon (Oyez). Sotomayor was on the side of the
majority, while Scalia dissented (Cornell Law).
Another case in which Scalia and Sotomayor were on different sides of the opinion was
in Town of Greece v. Galloway. In this case the Town of Greece, New York began town board
meetings with a prayer. They claimed that this was not a breach of the establishment clause
because the practice is consistent with the tradition long followed by Congress and state
legislatures, the town does not discriminate against minority faiths in determining who may offer
a prayer, and the prayer does not coerce participation with non-adherents (SCOTUSblog). This
case was a close call, with the decision being reversed on behalf of Galloway in a five-four
decision. Scalia was on the side that this prayer before meetings would be considered

Bolger, Gonzalez, Winkelstein, 8

establishment of religious freedom, and that it shouldnt be allowed. Sotomayor was on the
dissent, joining Kagan with Ginsburg and Breyer. In this case, four of the Catholic justices sided
together with two dissenting (Oyez). If this ruling was based purely on trying to support the
religion of these justices, it seems that all six of them would have ruled in favor of prayer before
meetings. Based on the spread of religion between the majority and the dissent, it can be seen
through this case that religion does not play a role in the justices decision making on religious
freedom cases.
In Arizona fifty-seven percent of private schools are religiously affiliated. In 2009,
Arizona provided tax credits to those who donated to the tuition funds of private schools. A
group of taxpayers challenged this law saying that it was an establishment of religion (Oyez).
Arizona Christian School Tuition Organization v. Winn is one of the most recent religious
establishment cases. The justices ruled for the Arizona Christian School Tuition Organization
with Scalia and Sotomayor being on differing sides of the opinion (Cornell Law). Sotomayor
was a part of the dissenting opinion. In this case it would seem that if the justices were ruling
from a biased perspective that Sotomayor and Scalia would have both rules for the Tuition
Organization, however only Scalia did (SCOTUS blog).
Throughout all religious freedom cases that have been heard in the past seven years that
Sotomayor and Scalia have been on the court together they have been on opposing decisions.
Although it varies which of them is on the majority and which is on the descent. Religious
freedom is something that has been contested since before the United States was even a country
and has continues into present day. Just as many Americans feel differently on the rights that
people should have and the protections that should be in place, justices do as well. Throughout

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the judicial process it can be seen that the opinions of Sotomayor and Scalia on religious freedom
are not religiously tied.
LGBT Rights Court Cases
Throughout American history there have been several Supreme Court cases that have
dealt with the rights of the LGBT community and have ultimately changed legislature throughout
the nation. It is unknown if past decisions in LGBT cases were influenced in any manner either
by religion or by what was considered socially acceptable. In cases such as Romer v. Evans that
dealt with protections for gay and lesbians against discrimination there have been rescinded
decisions through more recent cases.
Focusing on cases that have occurred recently, United States v. Windsor transpired in
2013, two years before the milestone case of Obergefell v. Hodges. The case deals with a samesex couple that had married in Toronto in 2007, where same-sex marriages were legal and
recognized under the countrys government (Oyez). Following the death of her spouse, the
petitioner was denied from the IRS the use of a spousal estate tax exemption on the ground that
under the Defense of Marriage Act (DOMA), the federal government did not recognize same-sex
marriages for the purpose of federal benefits (Dudley). The oral arguments dissected whether
Section 3 of the Defense of Marriage Act violates the right to equal protection of same-sex
couples who are legally married under state law. The procedural issue is whether the Supreme
Court has jurisdiction over this case in light of the executive branchs refusal to defend the law in
court (Dudley). It was on June 26, 2013, that in a 5-4 decision the Supreme Court found Section
3 of the Defense of Marriage Act unconstitutional. The Court held that the Constitution
prevented the federal government from treating state-sanctioned heterosexual marriages
differently from state-sanctioned same-sex marriages (Liptak).

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Justice Anthony Kennedy authored the majority opinion, with Justice Sotomayor along
with other colleagues joining. The majority opinion struck down a central park of the DOMA
citing the principles of state autonomy, equal protection and liberty, but the constitutional basis
for striking down the law was not entirely clear, as it had elements of federalism, equal
protection and due process (Posner). It is not uncommon that Justice Scalia has been found on
the opposite side of the decision to Justice Sotomayor, which comes to no surprise that he offered
a dissenting opinion.
Obergefell v. Hodges was a landmark Supreme Court case which argued the fundamental
right to marry for same-sex couples that occurred in 2015. The case is a consolidation of six
lower-court cases emerging from Michigan, Ohio and Kentucky that dealt with sixteen same-sex
couples. On April 28, 2015, the justices heard oral arguments on whether the Fourteenth
Amendment protected the right of same-sex couples to marry. The magnitude of the case was
appropriately expressed by Fred Sainz, vice president of communication at the Human Rights
Campaign, who said, If the Supreme Court decides in favor of full marriage equality, it will be
the largest conferral of right on LGBT people in the history of our country (Ballotpedia).
In a 5-4 decision that occurred on June 26, 2015, the court had held that same-sex
marriages was a protected right under the Constitution. State bans prohibiting same-sex
marriages were struck down, and all states were obligated to recognize same-sex marriages
performed out of state (Ballotpedia). The opinion was authored by Justice Anthony Kennedy, and
Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined. Kennedy
identified four principles and traditions that provided precedent for the protection of same-sex
marriage under the Due Process Clause of the Fourteenth Amendment and notes that marriage

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equality can be derived from the Equal Protection Clause of the Fourteenth Amendment
(Ballotpedia).
The opinions of the justices have been written and decided based upon the interpretation
of the constitution. Although Scalia joined Chief Justice Roberts dissenting in full, he wrote a
separate opinion to call attention to this Courts threat to American democracy (Ballotpedia).
In the dissenting opinion, Scalia referrers to the majority opinion as pretentious, egotistic, a
judicial Putsch full of silly extravagances and showy produnities (Niles). Outside of the
courtroom, Scalia has commented on the decision that was made in Obergefell v. Hodges and
even claimed that the majority rewrote the Constitution instead of interpreting it and operated as
policy-makers instead of judges (Stern). Saying that the Constitution requires same-sex
marriage which is contrary to the religious beliefs of many citizens - I dont know how you can
get more extreme than that (Scalia).
It is unsure whether it is Scalias Roman Catholic upbringing and his devotion to his faith
and its teachings that have influenced his decision making during cases that deal with same-sex
marriages. Scalia does reference the sanctity of traditional marriages in numerous of his
dissenting opinions but it is unsure if his Roman Catholic beliefs are the reasoning to these
references.
Free Speech Court Cases
Freedom of speech is hailed as a fundamental principle of American rights. Although it is
in the First Amendment of the Constitution, freedom of speech is not absolute. Various cases
have been brought in front of the Supreme Court to determine the validity of the circumstance.
The Court has used multiple tests over the course of history for the outcomes of cases; some of
these tests are more liberal while some are more conservative in regards to limiting speech. Some

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of these tests include the Clear and Present Danger test, Bad Tendency test, and Clear and
Probable Danger. The use of these tests have been incorporated into American law and have been
the method of determination over the course of history.
In the case of United States v. Alvarez, a man named Xavier Alvarez claimed in a speech
that he was a decorated military soldier. Although many people think that they can say anything
they want under the first amendment, the Stolen Valor Act of 2005 made it illegal to claim false
military service and awards. The question that was being asked here was whether or not the
government could limit speech just because it was false (Oyez). On the decision of this case, the
six catholic justices were split three and three, with Sotomayor and Scalia on differing sides. The
majority opinion written by Kennedy said that it was clear in the constitution that content-based
restrictions on speech are subject to strict scrutiny and almost always invalid, except in rare and
extreme circumstances (Kennedy).
When looking at this decision it is clear that it was not concluded based on religious
ideals. Kennedy quotes the Ashcroft v. American Civil Liberties Union opinion that he also wrote
in his majority opinion, saying as a general matter, the First Amendment means that government
has no power to restrict expression because of its message, its ideas, its subject matter, or its
content (Kennedy). This statement makes it clear that the justices on the majority opinion are
using an original intent method to come to this decision, not thinking about their own personal
morals and ideals. Although the idea of truth is something that is generally known as moral
around the country no matter what religious affiliation each individual has, it is pointed out in the
opinion that Truth needs neither handcuffs nor a badge for its vindication (Kennedy). Even in
the dissenting opinion the discussion is about precedent, stating Building on this tradition,
Congress long ago made it a federal offense for anyone to wear, manufacture, or sell certain

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military decorations without authorization (Alito). The religions of the justices hearing this
case are irrelevant to the decision made.
Another case in which it can be seen that religion does not directly affect the justices
decision making is in Agency for International Development v. Alliance for Open Society
International, Inc. The major question being asked in this case is whether or not it is legal for the
government to force private groups to say something in order to get federal grants. The majority
of justices decided that no, it is illegal based upon the First Amendment. This is yet another
example of the discrepancy between the two Roman Catholics because Sotomayor agreed with
this decision, while Scalia dissented (Oyez). The majority argued that the government had no
business in giving money to groups that held the same values as those in charge. While Scalia,
dissented by saying the government has the right to choose who they give money to (Oyez).

Gender Equality at the Court

Along with most other controversial topics, womens rights have been ruled on in the
Supreme Court numerous times in various cases. Although women have the right to vote as
stated in the nineteenth amendment they are still being treated as lesser than men. Although the
Fourteenth Amendment was initially designed to give citizenship and rights to African
Americans, it has been expanded by the Supreme Court to mean a lot of womens rights and the
right to privacy. With this expansion, women have been able to go to court to look for more
rights and less restrictions on various systematic problems such as unequal pay and treatment in
the workplace.
The Equal Pay Act of 1963 established that No employer having employees subject to
any provisions of this section shall discriminate, within any establishment in which such

Bolger, Gonzalez, Winkelstein, 14

employees are employed, between employees on the basis of sex by paying wages to employees
in such establishment at a rate less than the rate at which he pays wages to employees of the
opposite sex in such establishment for equal work on jobs the performance of which requires
equal skill, effort, and responsibility, and which are performed under similar working conditions
(U.S. Equal Employment Opportunity Commission). This seems like an act that major
corporations would have no trouble following. Many large companies have standardized pay and
procedures across the country, however one employee named Betty Dukes felt that Walmart was
violating this act and should be held accountable for this mistreatment of their female employees.
Although in the long run this case is known for deciding whether or not a few people can
represent many in a class action case, a womans right to equal pay was still on the line. In the
end the case was decided with Wal-mart as the victor due to the facts that it will be impossible
to say that examination of all the class members claims will produce a common answer to the
crucial discrimination question (Scalia). This makes it seem as though this case does not have
anything to do with sex-based discrimination, however a deeper look into the opinions shows
that even though Wal-Mart v. Dukes did not change anything legally for equal pay, it shows the
opinions that Scalia and Sotomayor have about the topic of discrimination based on sex.
In the majority opinion, Scalia wrote that The basic theory of their case is that a strong
and uniform corporate culture permits bias against women to infect, perhaps subconsciously,
the discretionary decision making of each one of Wal-Marts thousands of managersthereby
making every woman at the company the victim of one common discriminatory practice
(Scalia). This is the deciding factor for the case; the idea that there isnt actually a corporate
culture that discriminates against women and that each employee should be filing individual
cases. Sotomayor was on the dissent, arguing against this point. In this dissent it is pointed out

Bolger, Gonzalez, Winkelstein, 15

that Women fill 70 percent of the hourly jobs in the retailers stores but make up only 33 percent
of management employees (Ginsburg). This shows a difference in issues looked at by the
justices, even if these issues weren't deciding factors. Just as in other cases, it would seem that if
a decision was based upon religious leanings each catholic justice would be on the same side,
probably the side of Wal-Mart due to the ideas of gender hierarchy instilled in the bible and in
Catholic beliefs. This difference in opinion is simply one additional way that the separation
between religion and the opinions of justices can be seen.
Part IV:
Conclusion
Throughout the history of the Supreme Court, justices have come and gone, but left huge
impacts on the American political and legal environment. When the United States of America
was first founded, the framers of the Constitution made it very clear that religion was to be
separate from government. It is clear that this wish has made it through time and is true of the
Supreme Court today. Although it would be easy to let ones religion impact decisions that would
change the course of America, modern justices make it a priority to solely interpret the
constitution. As seen through Sotomayor and Scalias rulings in religious freedom cases, female
rights cases, LGBT rights cases, and free speech cases that have been heard in the past seven
years. Looking at past Supreme Court cases that both Sotomayor and Scalia have ruled on
provides for interesting questions and discussions on how religion shapes people, but it is
certainly not the only influencing factor. It is important to note that many justices are able to put
aside their personal beliefs to come to the correct legal decision.

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