"CONGRESS shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
The phrase that governs all the rest of the sentence is " Congress shall make no law..." It is addressed to no other branch of government. Even if we make a giant leap to the view that the First Amendment was made applicable to the states by the 14th Amendment, it is still not clear what application could be made of it.
The 14th Amendment provides that " The CONGRESS shall have the power to enforce, by appropriate legislation, the provisions of this article." But how can Congress legislate about matters concerning which the governing phrase is, CONGRESS shall make no law? The obvious answer is that it can't.
That aside and even supposing the the 14th made the First applicable to the states, there was NO grant of power to the Federal courts to lay down rules as to what constituted an establishment of religion, what states governments might authorize regarding religion, how local governments might celebrate religious occasions etc. No such powers are granted to any branch of the federal government, including Congress, by the First Amendment.
For nearly 70 years after the adoption of the 14th Amendment, the courts and and just about everybody else believed the First Amendment meant what it said, no more no less.It was not until the 1930's and 40's that the federal judiciary started to stick it's nose under the tent of state authority in the matter of religion and morals.
The fed courts have hijacked a power not enumerated to them in the Constitution
At least two ways that I know of. One, the privileges and immunities clause -- the rights set forth in the First Amendment (including but not limited to the establishment clause) are privileges and immunities of all US citizens. Two, these rights are part of our substantive right to liberty under the due process clause. I personally prefer the first method, but my understanding is that the Supreme Court essentially adopted the second method.
A third method is the Ninth Amendment, which should be construed to incorporate by reference the individual rights philosophy set forth in the Declaration of Independence. My understanding is that no court has ever used the Ninth Amendment this way -- unfortunately.
The federal courts have this power of judicial review under Article III -- a question of law that has been settled since the Marbury vs. Madison case. Moreover, the right to religious freedom -- which is what we are discussing here -- can equally be derived from the Ninth Amendment, the privileges and immunities clause of the 14th Amendment, or the due process clause of the 14th Amendment.