Gutting the First Amendment

Recently a group of 40 prominent Christians released a manifesto called "We Hold These Truths," in which we describe how the courts are trampling on the processes of self-government. There was no more outrageous an example of this than when the Supreme Court recently threw out the Religious Freedom Restoration Act, known as RFRA. This was the greatest blow to religious liberty in this century. In passing RFRA in 1993, Congress was simply trying to restore what had been the historic test for religious liberties-a test that was repealed by the Supreme Court in an unfortunate case in 1989. Before the appeal, the government was prohibited from interfering with the free exercise of religion unless it could prove a "compelling" government interest to do so. But in declaring RFRA unconstitutional, the Court eliminated this test. Now any general statute can restrict a religious freedom. This ruling guts the First Amendment: The Court told Congress, in effect, You don’t have the right to write this kind of a law; WE decide what is constitutional. Most Americans, the press, and even most congressmen seem to accept this. They believe the Constitution gives the Supreme Court the right of constitutional review. But most Americans are wrong. Our nation’s founders, notably Thomas Jefferson and Alexander Hamilton, were terrified of the possibility of a judicial oligarchy taking away the right of self-government. That’s why the Constitution is silent on who settles constitutional tests. But in 1803, in the case of Marbury v. Madison, the Court assumed this power, and for the first time ruled a statute unconstitutional. It was an enormously controversial decision. Jefferson himself opposed the ruling. Later, during Andrew Jackson’s presidency, the Court did it again. Jackson’s response was to ignore the Court’s decision. And years later, when the Court handed down the Dred Scott decision, President Lincoln followed Jackson’s example: He pointedly ignored the Court. Only in recent years has it become an accepted procedure to give the Court the final say on constitutional questions. We need to understand the fine constitutional issues here, because our liberties are in grave peril when the Court overreaches. And the Court clearly overreached in asserting that even when Congress passes an act with unanimous support, as it did with RFRA, Congress is exceeding its authority. In effect, the Court is saying that Congress can’t decide what the First Amendment means. What a travesty that in the same session the Court said the government couldn’t interfere with pornography on the Internet, but government could, by a simple statute, prevent communion services, for example, in a prison. Our religious liberties are on the line, and we’d better equip ourselves to argue these points, complicated though they may be. Because if we don’t urge Congress now to challenge the Court—to demand that the Court back down—then religious freedom in America becomes a second-class right. These issues are fully explored in the manifesto that I and 39 other Christian leaders recently signed. As we celebrate our nation’s 221st birthday, let’s be in prayer that our leaders will have the courage to stand up to the Court and protect our liberties. As we stated in the manifesto, as America has been a blessing to our forebears and to us, so will it be a blessing to future generations-if we keep faith with the founding vision.

07/3/97