Sonia Sotomayor had an excellent church-and-state opinion today. Alas, it was a dissent to a 7-2 opinion:
History is definitely on the side of the dissenters. Sotomayor painstakingly details the decision made by one state government after another to end experiments in religious funding. “The course of this history shows that those who lived under the laws and practices that formed religious establishments made a considered decision that civil government should not fund ministers and their houses of worship,” concludes Sotomayor. Missouri’s policy is consistent with this insight, and to argue that the Constitution actually forbids Missouri from making this sensible decision is wrong.
Sotomayor ended her careful evisceration of Roberts’ opinion by pointing it out that it leads to a place where “separation of church and state is a constitutional slogan, not a constitutional commitment.” She’s right: Missouri’s policy of secularism is meant to protect religious institutions based on hard-earned historical lessons. It’s dismaying that two Democratic nominees joined with the majority’s undermining of a critical constitutional principle.
Sotomayor is already the most important liberal voice for civil liberties on the Court, and apparently she will have that role on church-and-state cases as well.