Home / General / Sotomayor: One of Obama’s Best Lgacies

Sotomayor: One of Obama’s Best Lgacies


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.

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  • Joe_JP

    The dissent is pretty good and does something the majority opinion (around half its length and having a bland tone to it) does not: it engages with the various positions of the justices.

    The dissent is about half the length of the total opinions (technically, Breyer only concurred in judgment; Thomas & Gorsuch basically joined the opinion in full except for one footnote that at least purportedly limited its breadth) from five justices. If it is so wrong, perhaps more directly responding to say why?

    But, Sotomayor and RBG is in effect ignored, including her examining specific aspects of the program that are problematic. Yes, repeatedly, funding religions with government funds in particular have raised red flags. Likewise, religions have obtained benefits secular institutions have not since free exercise was deemed to require it (e.g., can make discriminate in employment decisions in a way some other institution might not). And, no, this isn’t like police services etc.

    ETA: The end result makes one wonder why this took so long. Could have decided it 6-2. Breyer and Kagan might have been more hesitant in the early going?

  • Dilan Esper

    In addition to everything else, Sotomayor’s position is more originalist. Was the 14th Amendment originally understood as invalidating all the prohibitions on giving public funds to churches?

    • Zagarna_84

      The fact that many of those restrictions (the so-called Blaine Amendments, after noted Gilded Age politician James G. Blaine) were enacted at or around the same time as the 14th Amendment is strong prima facie evidence that it was not.

      Somehow* the 14th Amendment has always been immune to “originalist” arguments, which would, to take merely the most hit-you-over-the-head-obvious example, easily have permitted affirmative action programs.

      *Hint: it’s because “originalism” is tendentious conservative hackery that no judge cares about except insofar as it gets them to the result they were going to reach anyway.

      • Dilan Esper

        Well conservatives love citing the number of abortion statutes that existed at the time the 14th Amendment was enacted. :)

  • Peterr

    Her opening paragraph in dissent is as clear a statement of legal judgment as you can find:

    To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.

    The church declares that part of their religious mission is to run a school. Roberts & Co wrap themselves in knots to avoid acknowledging this fact, painting this instead as just a little shredded rubber under some swings. Sotomayor, on the other hand, is clear as can be in having none of it:

    The Church has a religious mission, one that it pursues through the Learning Center. The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar.


    • Dilan Esper

      To be fair, the conservatives didn’t like the “recycling tires” rationale either. That was Breyer and Roberts and Kennedy.

      • Peterr

        To be scrupulously fair, they liked it enough to vote for it.

        • rea

          Technically speaking, they did not join the part limiting its effect to tire recycling cases.

    • Yellow Rose

      Question: Is the playground generally open for community use as in the case of many schools?

      The neighborhood church erected a playground years ago. Local kids play there all the time. Why should the kids be punished for playing at the church’s playground instead of the non existent playground the city hasn’t built for them? Are we afraid of proselytizing on the merry go round?

      If you’re excluding a church from a government grant from which it would otherwise be entitled if it were a secular enterprise for no other reason than that it’s a religious organization then thats straight up religious discrimination. Lots of religious organizations get grants from the government for providing socially useful services like soup kitchens. Why should we stop that? If the organization is openly proselytizing that’s one thing but making playgrounds fun again? What’s the big deal?

      • Peterr

        This isn’t a little playground on an unused corner of church property that anyone can just drop by and start playing on. It’s a fenced-in part of their religious school.

        • Peterr

          From their website:

          Trinity Lutheran Child Learning Center (TLCLC) is a ministry of Trinity Lutheran Church serving families with young children ages 2 years (by August 1st) through Pre-K. TLCLC incorporates daily religion and developmentally appropriate activities into a school and optional daycare program. TLCLC provides opportunities for children to grow spirtually, physically, socially and cognitively.

          • It’s the words “spiritually” and “religion” that suggests
            it’s a religious school, in itself, though, not the word “mission,” at least as I understand it. At least that word in connection with the lack of the word “non-sectarian.”

            • Peterr

              It’s run by a congregation of the conservative Lutheran Church-Missouri Synod, which runs its schools according to some very strict conservative theological standards. There is no question at all that this is a religious school. When they say it is a ministry with daily religion activities, they are not kidding.

    • efgoldman

      Roberts & Co wrap themselves in knots

      Sometimes I wonder if the chief justice got his degree by mail order. He has forgotten more than once to read plain, clear English words.

  • rea

    Does the Constitution mandate public funding for religious schools? Betsy DeVos thinks so, anyway.

  • D. C. Sessions

    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.”

    For most of the majority, I’m sure that was the idea.

  • Pat

    Does it seem to anyone else that Sotomayor in dissent is following a path like Scalia, in that she is setting out a logic and a framework that other judges may use?

  • Philip

    Breyer, on the other hand, continues being an unreliable twerp. Sigh.

    • Joe_JP

      He consistently joined the liberals in most cases this term, including voting with RBG alone in dissenting in a border shooting case today. This followed up a passionate dissent in a related case. In this case, he only concurred in judgment. Kagan joined Roberts opinion in full.

  • SIS1

    In terms of the facts of the case, I honestly side with Kagan (and the majority) on this.

    The State set up a program to urge non-profits to retrofit their playgrounds in a manner consistent with other policy aims. The program itself makes no claims, as far as the facts of the case lay out, that it was only for spaces open to all. The church is a non-profit. They retrofitted their playground consistent with the stated aims of the State’s policy. To deny them the funding because they are a church to me runs counter to the stated aims of the policy.

    • Yellow Rose

      That’s the clincher. If the goal is reducing risk to children, why do we care if it’s church kids or not? As long as the playground is open to the public who cares whether it’s church owned or state owned? To paraphrase an old teacher of mine, are church owned playgrounds less fun than state owned playgrounds?

      • lizzie

        are church owned playgrounds less fun than state owned playgrounds?

        With the scary nuns watching over you? Yes.

      • Dilan Esper

        On a public policy level, I agree with that. I really don’t have any problem with churches getting to participate in programs that everyone else gets to as well, so long as they follow the same rules as everyone else.

        But Missouri has a constitutional provision that says “no money for churches”. And what the Court did today is hold that you can’t enforce that constitutional provision and that churches MUST be permitted to participate in programs that secular organizations can participate in, and that this is required by the free exercise clause. That’s a lot different than the policy issue.

        • SIS1

          “that churches MUST be permitted to participate in programs that secular organizations can participate”

          Yes, and?

          A religious community may choose to engage in actions that a secular community would engage in. As long as those actions don’t amount to proselytizing, what is the point of denying the religious communities participation? If the State decides to help organizations that set up battery recycling drives, and a church with a strong environmentalist streak sets up such a program, why should that program be denied funding?

          • efgoldman

            As long as those actions don’t amount to proselytizing, what is the point of denying the religious communities participation?

            Please point out where in the first amendment “establishment” and the accompanying language is limited to proselytizing.
            This decision, and others like it, are incremental steps toward eviscerating the first amendment just as the court destroyed the 15th.

            • SIS1

              The Constitution’s establishment clause was created at a time many States had official religions, so to claim some historically absolute separation of church and state in this country is absurd. The interplay between faith and the state ebbs and flows. I mean, we are talking about a country that inserted God into the pledge of allegiance, a track written by socialists. And as someone who omits that add on when reciting it, I can also think that some “bright line tests” go beyond reason. And this is such a case.

              If the State creates a narrow policy aimed at some material change, acting as if properties owned or operated by religious institutions must always be denied participation is absurd.

      • liberalrob

        The issue is not the merits of the playground resurfacing program. The issue is the practice of allowing (or in this case, requiring) secular government to allocate taxpayer funds to religious institutions. Sure, *this time* it’s a non-controversial program to make playgrounds safer (arguably…I think the effects of long-term exposure to crushed vulcanized rubber are not well-known). Next time, maybe it’s a slightly more controversial program; and the argument will be “well, you let religious schools get state funding for playground resurfacing, so it’s not like you never permit such funding…” And then we’re off to the races.

        An important principle, which is supposed to be a “wall of separation,” is eroded by this decision.

        • SIS1

          Secular government in this country already provides religious institutions with the same generous tax subsidies that it gives secular non-profits. So to me the argument that this somehow weakens any existing divide in some fundamental way is not credible.

          The issue with government funding of religion is the conflation of secular and theological power. But if a church non-profit runs a soup kitchen open to all, I think denying it the kind of support that would go to a secular run soup kitchen open to all is not a helpful action.

          • Joe_JP

            This isn’t a soup kitchen giving soup to homeless people. It’s a playground used to promotes a specific religious viewpoint. And, some of the funding allowed have been shown to be problematic (such as abstinence only funding that turn out to be religions being able to promote religious doctrine).

            And, it isn’t a policy matter. What a state might do if it decides to do so. The finding is that a common barrier found in multiple states is actually unconstitutional.

            Sotomayor notes how the specific policy here benefits certain religions over others (FN4). In certain cases, states are allowed to single out religions even if neutral criteria is used. Funding religion with state dollars specifically has traditionally been an issue. Meanwhile, religions get certain benefits secular groups don’t receive as seen in the ministerial cases alone.

            ETA: The dissent argues that proselytizing in effect is done here so your line drawing in another comment is not met. A clothing drive to me is a lot easier to justify than a more educational act or a church building etc., the funding of which has traditionally been seen as different. As with cause.

            • Nonsectarian preschools and nursery schools are sometimes run by religious groups (and in the case of churches the committee running them referred to as missions or ministries). But this one included religious teaching specifically.

            • SIS1

              The state’s aim here is cladding playgrounds in this new material – that was it. This school had a playground that was clad with the material. The program has nothing to do with the aims of the organization legally running the playground – it is all about the final desired outcome. And the fact the court found that employing a bright line test can sometimes be incorrect is something I agree on.

              • Joe_JP

                No, that is not “it.”

                The state also has an interest to separate church and state & the means used is to not fund certain types of religious institutions like churches and church schools.

                As the dissent notes, many states have this aim & historically used a means like this to promote it. One reason is because money is fungible. There are others as the dissent explains, including how this specific program has a tendency to benefit certain types of religions. This is problematic.

                Different states draw the exact lines here in somewhat different ways, so that fact you disagree is not surprising. But, there should at the very least be enough play in the joints that the state isn’t, from up high, blocked from choosing this as policy.

                If this was a true across the board public good like police, it would be different. But, it is a selective one provided to only certain groups depending on limited slots. Madison himself pointed the problem with funding that benefits only certain religions there, even if it is for building supplies.

                But, I’m not merely relying on Madison — his separatist views maybe were too extreme. At least as a one size fits all rule. OTOH, a state can at least have the discretion to take his advice.

          • liberalrob

            A tax subsidy (where the state refrains from collecting an amount of tax) is different from an outright funding grant (which is what this program provides). At least in my mind it is.

            Churches are free to run soup kitchens open to all. They are not (or should not be) free to request taxpayer money to do so. I don’t care whether it’s “a helpful action” or not; there were good reasons for erecting the “wall of separation” between church and state and that walling-off should be absolute.

            • SIS1

              I see no difference – both amount to a financial benefit given to a group that is denied to others.

            • What’s the basis for the idea of a “wall of separation” in that sense? Different kinds of organizations do get grants: corporations, Secular incorporated NGOs, religious charities, private or religious schools. Is a religious organization relevantly different from the Red Cross, or a church from a non-profit?

      • were-witch

        As long as the playground is open to the public


        • Origami Isopod

          Someone else was wondering a while back if “Yellow Rose” were the new incarnation of TJ/NR.

  • Daglock

    I’m waiting for the evangelicals claiming victory to figure out that mosques and synagogues are eligible for grants to get scrap tires on their playgrounds.

    • Yellow Rose

      Well if anything will overturn this decision that will.

    • Presumably something like that was behind the provision in the first place.

      On the other hand, didn’t we find out like five years ago that those scrap tires were health hazards?

  • sergiol652

    As a Puerto Rican, I’m very proud of her.

  • Bloix

    Suppose the state had funded a program to replace lead-soldered water pipes that were contaminating water in schools and other non-profit buildings, in order to protect children from lead poisoning.
    Could the state say, we will reimburse private schools, hospitals, and museums who fix their pipes – but not if they are church affiliated?

    Same question, isn’t it? Does lead poisoning instead of playground padding change your emotional reaction? Or maybe it doesn’t.

    • Zagarna_84

      There’s a world of difference between saying that the state has the power to exclude churches from these types of programs, and saying that such an exclusion is actually warranted.

      This case was about the former, not the latter. It’s a completely legally coherent position to say that the state has the power to exclude churches from lead-pipe contamination abatement programs, but that it should not do so as a matter of policy.

      Hell, for that matter, many people who supported the state’s position in this case would probably have agreed that the exclusion of the church from the scrap-tire program didn’t make a ton of sense. Part of judicial restraint is recognizing that the fact that a law is silly or even foolhardy is not, in and of itself, a reason to find it unconstitutional.

    • liberalrob

      If a church wants to run a school in order to advance their religious teachings, then the state must not be involved financially in the operation of that school in any manner. If that means children attending that school are at risk for lead poisoning, tough noogies. That’s the parents’ decision in their free exercise of religion. (I would say that knowingly sending your children to a school that is going to poison them is grounds for a secular intervention on humanitarian grounds, but that’s a different conversation.) The parents have (should have!) the option of sending their children to the public schools whose pipes are fixed by this hypothetical program.

      If we start making exceptions here and there for what seem perfectly reasonable and eminently laudable purposes, inevitably we will one day come to a point where we are asked to make an exception for a reason we don’t find so reasonable or laudable, and the law will offer us no protection because we have let so many holes be punched in it. It’s simply human nature. The “slippery slope” is in fact a thing.

      • Zagarna_84

        I have no idea what country’s laws you’re expounding (France’s?), but American state laws are riddled with special exceptions, exemptions, and sometimes outright giveaways to religious entities. Your Rubicon has not only been crossed, they built a giant causeway over it and now it’s just a drainage ditch hundreds of feet underground.

        PrawfsBlawg has a somewhat interesting post suggesting that the rationale of the MAJORITY opinion could be read to make those giveaways and special exemptions themselves unconstitutional– i.e. as requiring a strict policy of treating religion exactly the same as nonreligion. Of course, we all know that the majority will not actually read the First Amendment in that fashion– they’ll read it to allow religion to be favored but not disfavored– but it’s still worth pointing out, if only for “maintaining the liberal constitution in exile” purposes.

      • Bob Loblaw Lobs Law Bomb

        grounds for a secular intervention on humanitarian grounds

        Perhaps that intervention might be covering the playground with scraps of recycled tires?

  • Bloix

    “It’s a completely legally coherent position to say that the state has the power to exclude churches from lead-pipe contamination abatement programs, but that it should not do so as a matter of policy.”

    I think the gov’t would have a serious equal protection problem if it passed a law that said, ‘all non-religious institutions in Category A get a benefit but religious ones don’t’ UNLESS the First Amendment actually barred the gov’t from giving religious institutions the benefit.

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