What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that--thumbs up or thumbs down--as their personal preferences dictate. Today's opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle.
The first part of his dissent shows historically that the idea that government is supposed to be neutral as between religion and irreligion is preposterous on its face. He makes no effort to be complete, but he might have addressed a little something you hear from Con lawyers all the time. It's often claimed that the word God appears nowhere in the Constitution, as if this tells us something about the Founders' attitudes towards religion. But the statement itself is false. The founders signed it, "in the year of Our Lord, 1789." You might be tempted to dismiss this as a mere form, but it was a choice. Our Constitution was written after the French Revolution. The French Constitution begins "France is a secular state. . . " and ends, "in the first year of the Republic." The Founders --in deliberate contradistinction to the French-- signed, "in the year of our Lord 1789, and the independence of the Republic the 12th." (And in those two signings lies the difference between France & America, and the reason America cannot properly be considered a wholesale product of the Enlightenment. But don't get me started on that.) My point is only that the majority of the court does not understand that we are not France.
