Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: [Mr. Bingham recites the first eight amendments.]These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, 'no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States,' are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make. . . .
Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provisions of the fourteenth article, that no State shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations?
The First Amendment means, as Madison said, that the federal government can not have a religion. At most, the Fourteenth can apply that meaning of the First to the states; not the "wall of separation" interpretation that the Supreme Court has used in the past.
Still at some point short of establishing a state religion a state still can be so unfair, intimidating or intrusive as to be infringing the Fourteenth Amendment.
I think that is what this case comes down to IF the court gives up it's past historically false precedents on the First.