One Amendment, Two Sides

Here, once again, is the exact language of the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

Justice Black, in his opinion for Everson V. Board of Education, recognized the two distinct sides of the language.

In the first quote in the last post, he acknowledged that the establishment clause prohibits our government from “setting up” or “aiding” any specific religion or church in the land.  No establishment is the first side.

In the second quote, he noted that laws cannot hamper the free exercise of a legitimate religion by an individual.  Free exercise is the second side.

When acting properly, government remains within the bounds of both sides.  It neither establishes religion, nor interferes with the practice of it.

The problem is, it can be very difficult to distinguish between the two.

Tomorrow morning, I will attend a progress meeting on a public school renovation project I am managing.  If the school superintendent is a religious man, and he opens the meeting in prayer, is he freely exercising his religious rights, or is he engaging in the establishment of religion?

Is he doing both?

If he is doing both, is the First Amendment fundamentally flawed?  Can the Constitution expressly allow and disallow the same action at the same time?

Or, is the problem one of interpretation?  Is the action truly only one or the other, and we simply aren’t smart enough, or deep enough, to make the distinction?

Perhaps, if it appears he is doing both, we might consider to what degree he appears to be doing each, and that will aid us.

As an individual engaged in prayer, are there degrees, or is he by his very action engaged 100% in the exercise of his religion?

As a public figure, representing the school, is it likely that his thirty seconds of prayer will profoundly affect the state of religion in his community?

I asked at the end of the last post, why does the spirit of Justice Black’s opinion seem to have been lost in the sixty years since it was written?

Perhaps I could rephrase that question like this:  Why does the country seem to have lost its balance concerning the two sides contained in the amendment?

Why, in recent times, does it seem that we are obsessed with non-establishment, no matter how much it might infringe upon free exercise?