Whose Constitution Is It?

The Supreme Court building, with its white marble pillars, towers above the street across from the U. S. Capitol (as though these two branches of government were staring each other down, the better to maintain an even balance of power). But the Court has tipped the balance dangerously by striking down the Religious Freedom Restoration Act (RFRA) and has raised the gravest constitutional crisis of our age.

The justices portrayed RFRA as an illegitimate expansion of religious rights. But the truth is exactly the reverse: RFRA simply restored rights the Court had taken away. Traditionally, before restricting religious practices, the state had to show a “compelling interest” (such as ensuring the public’s health or safety). But in 1990, in Employment Division v. Smith, the Court changed the rules, declaring that there is no religious exemption from generally applicable laws.

This was a drastic restriction of religious rights, and Congress passed RFRA to restore the traditional interpretation. In essence, it said the Court made a mistake. But the Court did not appreciate the civics lesson, and a few weeks, ago, in Boerne v. Flores, it struck back, declaring RFRA unconstitutional on the grounds that Congress has no right to define constitutional rights (that the Court alone defines what the Constitution means.

The Court has thrown down the gauntlet. By restoring the Smith rule, this decision wreaks havoc with religious liberty. Under Smith, Catholic teaching-hospitals were required to teach doctors and nurses to perform abortions. Prison officials prevented Jewish prisoners from wearing yarmulkes, denied Catholic prisoners access to a priest, and restricted Bible studies for evangelical prisoners.

Violations of religious liberty will now increase. Already the new ruling has been cited in a Los Angeles case in which a Jewish congregation was ejected from a neighborhood where it had met for a quarter of a century.

But even more serious, Boerne raises a fundamental question: Who determines what the Constitution means? Does the Supreme Court have an absolute right to interpret our founding document?

Most Americans think the Constitution assigns the Court the task of deciding whether a law is constitutional. Not so. The Constitution is silent on this question. Not until 1803, in Marbury v. Madison, did the Court arrogate to itself the power of judicial review. Even then, no one thought its power was final. For example, Abraham Lincoln argued that its decisions must be subject to reversal, otherwise the Court becomes the only real government in the land (which is apparently the current Court’s view.

The classical ideal of liberty is self-government (a people writing their own laws, ruled by their vision of a good social order). To quote from “We Hold These Truths,” a statement I and 41 other Christian leaders signed on July 4, “Our own nation was constituted by the agreement that ‘we, the people,’ through the representative institutions of republican government, would deliberate and decide how we ought to order our life together.”

If there was ever an example of a people expressing their own political vision, it was RFRA. The act won widespread support from all faith communities and even the ACLU, conservatives and liberals alike. It passed unanimously in the House, and with only three dissenting votes in the Senate. The American people expressed a strong commitment to religious liberty.

“But now, with a lightning bolt from six Olympians in the marble palace, the national consensus has been set aside” writes law professor Nathan Lewin in the Washington Post. The Court has stripped Congress of its Fourteenth Amendment power to pass substantive laws defining constitutional rights. Unless Congress stands up to the Court, it will be reduced to making only procedural laws enforcing what the Court says.

Many Americans are growing alienated from a government they no longer recognize as their own. In Boerne, The Court has defended its own turf at the expense of both religious liberty and popular allegiance.

Congress must propose an alternative version of RFRA immediately.

At stake is both religious liberty and the viability of this noble experiment in self-government.

From Jubilee Extra (newsletter of Prison Fellowship Ministries), September 1997