Lockdown on Liberty

When I visited a major U.S. penitentiary recently, I was surprised to find the auditorium half empty. It was a much lower turnout than I had expected. "Where are they?" I asked the warden. "Oh, these are only the Protestants," he answered. "You’re a Baptist. That means we couldn’t let in the Catholics or Muslims." I was startled to discover that in that prison system, inmates have to designate their religious affiliation. Then they are allowed to attend only services of their own faith. Under such rules, evangelism is impossible. I wish this story were the exception—but unfortunately, it’s all too typical. Prisons often clamp down on religious activities. And that’s why the Religious Freedom Restoration Act (RFRA) is so crucial-not only for prisoners but also for the rest of us. RFRA was passed in 1993 to offset a terrible 1989 Supreme Court decision—one that set aside an historic test: that the government had to prove a "compelling governmental interest" before restricting religious liberties. When RFRA was being debated in Congress, some senators wanted to exclude prison inmates from RFRA protections. They were reacting to pressure from state officials who don’t want to be bothered with inmate lawsuits—some of which are admittedly frivolous—or with ministries that seek access to the prisons. Happily, the prison exclusion was defeated. Now the first constitutional challenge to RFRA has been heard in the U. S. Supreme Court, and the Court will soon issue its opinion. The justices are concerned about the constitutional test, of course, but maybe they’re also concerned about their own prerogatives. During oral arguments, some justices raised the rhetorical question: Who does the Congress think they are, telling us what to do with a constitutional test? If the Court throws out RFRA, as some expect, it would be a deathblow to religious activities in prisons and elsewhere. It would gut the First Amendment, the most basic of all liberties, the one upon which all others stand or fall. If the Court does reverse RFRA, then Congress will have to act. My hope is that Congress will refuse to acknowledge the decision, just as Andrew Jackson and Abraham Lincoln both did in response to what they perceived to be unconstitutional court decisions. In doing so, the Congress will raise a profound question: Who does have the ultimate say on constitutional questions? Most of us think that the U. S. Constitution gives to the Supreme Court the authority to declare laws unconstitutional. Not so—the Court has merely assumed this power. But if RFRA is sustained, there’s likely to be a second challenge. Senator Reid of Nevada has introduced an amendment to exclude prison inmates from RFRA protections. But if there’s one place where we need protection for religious liberty, it’s in prisons, where the Gospel is the only thing making a difference. Let us never forget: The undermining of any free society begins with restrictions on freedom of conscience. This is our first liberty—and it’s being sorely tested. That’s why you and I need to let our senators and representatives know that we’re opposed to any efforts to exclude prisoners from RFRA. Tell them also that if the Supreme Court should declare RFRA unconstitutional, Congress must stand its ground. Nothing less is at stake than the most basic human freedom.

06/18/97