SOTOMAYOR AND CHURCH-STATE SEPARATION.

Despite prodding from church-state separation advocates, no member of the Senate Judiciary Committee asked Judge Sonia Sotomayor about her views on the Establishment Clause or Free Exercise Clause of the First Amendment during her confirmation hearings. Republicans, like Oklahoma's Tom Coburn, talked about the Second Amendment "hanging in the balance" -- a questionable jurisprudential assertion -- but no one brought up the more real threat posed to the Establishment Clause by the stated desire of the Court's more conservative wing to reverse 60-year-old precedent preventing the entanglement of government and religion.

Because Sotomayor decided only a handful of cases implicating the religion clauses of the First Amendment, her views are not discernible from her judicial record. But that didn't stop Judiciary Committee members from prodding her on other issues on which she has a scant record, and at least getting her to uphold the principle of stare decisis (precedent). Religious right activists who are bent on eviscerating judicial precedent on the separation of church and state claim the decisions they seek to reverse are the essence of "judicial activism," a term Sotomayor declined to give any credence. To them, stare decisis on those questions is of no concern; they see themselves on a mission from God to restore the country to its rightful Christian heritage before an "activist" court erected what they claim is an unconstitutional wall of separation. (It's equally surprising, then, that Republicans didn't ask Sotomayor about this topic, either.)

Changes to Establishment Clause precedent could have monumental effects on how federal, state, and local governments -- including public schools -- can or cannot embrace religion, including questions of school prayer, government funding of religious activities, and engagement in religious expression and activities on the government's dime. Questions on this issue would have been no more of a culture war trigger than questions on guns and abortion, and shouldn't be ignored out of fear of roiling some voters. Sotomayor's views on these legal issues are certainly more crucial to her role on the Court than parsing the meaning of "wise Latina."

--Sarah Posner

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