dissenting.
I dissent from the decision and opinion of the majority.
In my opinion, Chapter 848, Public Acts of 1976,1 insofar as it declares ministers of the gospel and priests of any denomination ineligible to serve as delegates to the Constitutional Convention of 1977, is violative of the (1) “free exercise” guaranties of the First Amendment to the Constitution of the United States 2 and Article 1, Sec. 3, Constitution of Tennessee and (2) the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.
I cannot agree with the conclusion of the majority that “. . . the subject provision simply does not impose any burden, direct or indirect upon religious belief or religious action.” It is my view that the statute does, indeed, substantially and directly prohibit the free exercise of religion by the appellee and that no reason, consistent with the First Amendment, can be advanced to justify the prohibition.
The statute clearly prohibits a minister, who is otherwise qualified, from serving as a delegate in the Constitutional Convention of 1977. Thus, the appellee, who desires to be both a minister and a delegate, must purchase the right to be a delegate by giving up his right to continue to be a minister. The disqualification imposed upon the ap-pellee is as much a burden, a penalty, as would be a fine or imprisonment imposed upon him for being a minister. It forces the appellee to make a choice between his right to be a minister and his right to participate in his state government as a delegate to the Constitutional Convention, both of which rights are, in my opinion, guaranteed by the First and Fourteenth Amendments. Thus, the statute confronts the appellee with the necessity of making the kind of choice which the Supreme Court held to be impermissible in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In that case the South Carolina statute forced the citizen to choose between her right to receive unemployment benefits *911and her right to practice her religion by keeping Saturday as the Sabbath. Pertinent here is the following statement of the Court:
“The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Government imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.” 374 U.S. at 404, 83 S.Ct. at 1794.
But, does being a minister constitute an exercise of religion protected by the First Amendment? I should have thought that there could be no question that it does. However, the majority dispute that conclusion. It is not denied that one who performs the customary functions of a minister is exercising his religion, but it is asserted that one dedicated to such service may, because of that dedication, be barred from serving as a constitutional convention delegate, as a necessary means of maintaining “the separation of Church and State.”
Such necessity is not evident to me. The national government and the 49 other states get along very well without such a disqualification of ministers. The First Amendment merely prohibits laws respecting the establishment of religion by government and laws which would prohibit the free exercise of religion; it does not require the “separation of Church and State” in all other respects. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952). Particularly, it does not, in my view, prohibit a religious leader from participating in his government upon the same terms as other citizens, nor a government official from taking an active, even a leadership, role in a religious organization.
I think that the majority has misinterpreted and misapplied the decision in Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). I have no quarrel with the quotation from that opinion that:
“Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.” 330 U.S. at 16, 67 S.Ct. at 512.
However, I do not understand that statement to mean that an official of State or Federal government, in his capacity as a private citizen, is prohibited from participating in religious affairs or that a member or leader of a religious organization is forbidden from participating, as a private citizen, in his State or Federal government. To the best of my knowledge, the decision of the Court today is the first to hold to the-contrary.
No doubt, Tennessee is free to go further in its efforts to insure “the separation of Church and State” than the First Amendment has gone; but, clearly it is circumscribed in that endeavor by the strictures of the First and Fourteenth Amendments. These Amendments require that a law which would restrict, diminish or burden the right to freely exercise one’s religion can be justified only by “the gravest abuses, endangering paramount interests.” Sherbert v. Verner, supra, 374 U.S. at 406, 83 S.Ct. at 1795; Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945).
In my view, the majority opinion advances no such justification for this statute. I find no weight in the argument that ministers, as candidates and as delegates, would have an undue advantage over other candidates and delegates, but, even if this were true, it is an advantage which the State has no compelling interest in preventing.
Nor do I agree that the disqualification imposed by this statute is a necessary means of maintaining permissible “separation of Church and State,” of preventing “an establishment of religion.” If the ap-pellee should persuade a majority of his fellow delegates to propose an amendment to the Constitution which would infringe upon religious liberty and if the electorate of the state should ratify such amendment, still the courts of this state and the federal *912courts would stand ready, willing and able to strike it down before any harm could occur.
Finally, the fear that religious strife would be fomented by the candidacy of ministers is equally unpersuasive. I am not aware of any basis for such a fear.
The same lack of necessity for this statute as a means of protecting a paramount or compelling state interest which causes it to fail when tested by the First Amendment likewise compels the conclusion that it invidiously discriminates against ministers and, thus, violates appellee’s right to equal protection of the law under the Fourteenth Amendment. See In Re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). No excuse, other than those hereinabove found to be wanting, is offered for denying to ministers the right to serve as delegates to the Constitutional Convention of 1977.
I would hold that this statute fails to pass muster under both the First and Fourteenth Amendments and affirm the decree of the Chancellor.
. The majority opinion speaks, throughout, as if we were determining the validity under the U.S. Constitution of Art. IX, Sec. I, Constitution of Tennessee. For the sake of clarity, I will speak only in terms of the statute before us.
. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . .