THE END OF CHRISTENDOM AND
THE ROLE OF THE COURTS
Although this chapter deals largely with decisions of the Supreme Gtyg Court, it provides neither an overall review of Church-State cases to date nor a detailed analysis of the reasoning the Court has used to justify them. Rather, it evaluates a representative series of those decisions in the light of the historical purpose of the First Amendment in order to illustrate what might happen were the Court to decide such cases according to that purpose, which was to make explicit the ban on the exercise of power in religion contained in the original Constitution. The approach proceeds from the understanding that the amendment contains one clause with regard to religion, that the Free Exercise and No Establishment provisions of that clause do not constitute a duality but are mutual in their intent. They combine to serve the single unitary purpose of depriving government of power in religious affairs—religious belief, doctrine, devotion, or practice. If a law requires an agent of government to exercise power in the area of religion, that law is unconstitutional. Thus, the role of the Court in any instance involving Church and State is first and foremost to determine whether the contested statute or practice is secular, that is, whether it falls within the powers delegated to the State.
The purpose of this chapter is to exemplify a very different way to approach and justify Church-State decisions. Over the past half century, the justices have become entrapped in a web of confusing rules, doctrines, metaphors, and approaches that is largely of their own mak