The more we reflect on the Supreme Court’s hearing in respect of Mississippi’s abortion law, the more we are struck that the news is not so much in Associate Justice Sotomayor’s use of the s-word, as in “stench,” but rather more the r-word, as in “religion.” That came when the justice looked down her judicial proboscis and demanded of the solicitor general of Mississippi, Scott Stewart: “How is your interest anything but a religious view?”

What in the name of the Father of All Mercies — to use one of George Washington’s phrases for God — was Her Honor thinking? “The issue of when life begins,” she plunged on, “has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it —”

Here Mr. Stewart started to make a point. “Respectfully,” he began. Before he could make his point, though, Justice Sotomayor rattled over him, saying “… because it assumes that a fetus’s life at — when? You’re not drawing — you’re — when do you suggest we begin that life?” Here Mr. Stewart again attempted a reply, saying, “Your Honor, I — aside from —.”

Justice Sotomayor, though, cut him off, again, saying: “Putting it aside from religion.”

Bingo.

“I — I’ll — I’ll try to,” Mr. Stewart sputtered, before arguing that the concerns Justice Sotomayor addressed “are all reasons to return this to the people.” His, in our view, is a profound point. Where in the Constitution are our courts granted the authority to suggest that the state of Mississippi should be putting something, or anything, “aside from religion”? The liberal wing of the court seems obsessed with the notion that religion is somehow a threat to our republic.

That’s a notion that’s hard to fit with the American founding. What the First Amendment prohibited the Congress from doing, after all, was making any law “respecting an establishment of religion.” Had the Founders wanted merely to block the Congress from establishing a religion, they could have said, “Congress shall make no law establishing a religion.” Yet they didn’t do that.

And no wonder. Even after independence, several American states had established religions, meaning religions that received official status and even financial support — Congregationalists in New Hampshire, Massachusetts, and Connecticut, say, and the Episcopal Church in much of the South. It turns out that one of the things the First Amendment did was prohibit the Congress not only from establishing a national church but from disestablishing established religions.

There came a time when the states themselves began disestablishing their churches. It turned out, for one thing, that being established by law had burdens as well as perks. Advocates for disestablishment, like Madison, would, we speculate, find Justice Sotomayor’s queries beside the point. After all, the Supreme Court is not being asked to settle a religious question, despite the Justice’s effort to shift the terms of the debate.

Instead the high court is asked whether the states and their legislatures are proper venues to set abortion law under the Constitution. Yet how did we get to the point that a sitting justice of the Supreme Court is demanding to know whether Mississippi’s solicitor general is animated by “anything but a religious view”? And what if the answer were “no”? Is that so all-fired horrible?

George Washington didn’t think so. We know that because of his Farewell Address. In it he reckoned that “religion and morality are indispensable supports” to “political prosperity.” And then the famous words: “Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”

That — the exclusion of religious principle — is the hubris the Supreme Court exhibits in Roe v. Wade. It has taken a while but this has come into focus as a fundamental affront to limited, constitutional government. The court’s hubris has poisoned our politics for nearly half a century. We like Mississippi’s formulation: that it is time to return the question to, in the several states, the people, that they be given the chance at which the Supreme Court failed.

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Drawing by Elliott Banfield, courtesy of the artist.