In that case the Court said: 'The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. So matters stood until the adoption of the Fourteenth Amendment, or more accurately, until this Court's decision in Cantwell v. Massachusetts, by contrast, had an established church until well into the nineteenth century. Thus Virginia from the beginning pursued a policy of disestablishmentarianism. Each State was left free to go its own way and pursue its own policy with respect to religion. The events leading to its adoption strongly suggest that the Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments. 1790.Īs a matter of history, the First Amendment was adopted solely as a limitation upon the newly created National Government. The short of the matter is simply that the two relevant clauses of the First Amendment cannot accurately be reflected in a sterile metaphor which by its very nature may distort rather than illumine the problems involved in a particular case. And such examples could readily be multiplied. Yet a lonely soldier stationed at some far-away outpost could surely complain that a government which did not provide him the opportunity for pastoral guidance was affirmatively prohibiting the free exercise of his religion. Spending federal funds to employ chaplains for the armed forces might be said to violate the Establishment Clause. Secondly, the fact is that while in many contexts the Establishment Clause and the Free Exercise Clause fully complement each other, there are areas in which a doctrinaire reading of the Establishment Clause leads to irreconcilable conflict with the Free Exercise Clause.Ī single obvious example should suffice to make the point. We err in the first place if we do not recognize, as a matter of history and as a matter of the imperatives of our free society, that religion and government must necessarily interact in countless ways. The First Amendment declares that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *.' It is, I think, a fallacious oversimplification to regard these two provisions as establishing a single constitutional standard of 'separation of church and state,' which can be mechanically applied in every case to delineate the required boundaries between government and religion. But I think there exist serious questions under both that provision and the Free Exercise Clause-insofar as each is imbedded in the Fourteenth Amendment-which require the remand of these cases for the taking of additional evidence. Specifically, I cannot agree that on these records we can say that the Establishment Clause has necessarily been violated. I think the records in the two cases before us are so fundamentally deficient as to make impossible an informed or responsible determination of the constitutional issues presented.
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