To the Editor:
In “The Worst Decision Since ‘Dred Scott’?” [October 1997], his favorable analysis of the Supreme Court’s ruling striking down the Religious Freedom Restoration Act (RFRA), Wilfred M. McClay fails to deal persuasively with the fact that the First Amendment provides that the government “shall make no law . . . prohibiting the free exercise [of religion]” and that RFRA was developed and encouraged by a broad coalition of religious and civil-liberties groups in the wake of the Supreme Court’s decision in Smith (1990), a decision that essentially read that clause out of the Constitution.
It has escaped the notice of the Justices as well as of analysts like Mr. McClay that the same week the Court struck down RFRA it also struck down the Communications Decency Act, by which Congress sought to regulate obscenity on the Internet. In doing so, the Court asserted that the First Amendment’s requirement that the government “shall make no law . . . abridging the freedom of speech” trumped all but the most narrowly tailored restrictions on the right of free speech.
It was the height of irony (and tragic absurdity) that the Court could read the same opening words to the First Amendment—“shall make no law”—so strictly with regard to the abridgment of free speech and so loosely with regard to the abridgment of the free exercise of religion in a matter of days. It is deeply troubling that the Court affords the highest protection to those who wish to purvey pornography on the Internet and minimal protection to those serving their God, when both these rights share the same constitutional language.
It is a reasonable and appropriate interpretation of the First Amendment that the government must demonstrate a compelling interest before it may even indirectly infringe the rights of individuals to worship or speak freely. RFRA would not have been necessary if the Court had not removed this protection from religious citizens in the first place.
Nathan J. Diament
Union of Orthodox Jewish
Congregations of America
New York City
Wilfred M. McClay writes:
My article had relatively modest aims and addressed itself to a rather narrow question: whether the Supreme Court was outrageously wrong in striking down RFRA, as so many people of faith, including some of my own spiritual and intellectual heroes, seemed to be saying.
Nathan J. Diament is absolutely right in pointing out what a deeply troubling commentary it is on our times that the expressive liberties of pornographers and other sociopaths are shown such tender solicitude while the perspectives of religious believers are treated with relative indifference, if not outright hostility. Nor do I disagree that the Smith decision was alarmingly and unnecessarily sweeping, particularly given the fact that it was propounded by a Court tending to imperial overreach, or that some corrective legislative response was perhaps warranted.
But one has to look closely at the specific legislative response that was made and ask whether it did the job that needed doing, at a reasonable cost, without too many untoward side effects or unanticipated consequences. And that is where the problems begin to emerge.
Although I share Mr. Diament’s sense of the general dangers we are now facing, including the dangers of judicial usurpation, I felt compelled to point out that RFRA itself was a deeply flawed measure, both for the reasons the Court gave—including the fact that it violated the constitutional separation of powers—and for other reasons as well. I concluded that we were probably better off without it.
One should not be taken in by the fact that RFRA initially garnered such universal support; this is actually less impressive than it seems. Congress has acquired a bad habit of passing huge and popular feelgood measures like the Americans with Disabilities Act, the Violence Against Women Act, the Gun-Free-School Zones Act, the Brady Bill, and so on, knowing that it will be someone else’s problem to figure out what they mean, and what they will cost. Such bills invariably support worthy principles but nearly always turn out to be rolling calamities in practice, with particularly disastrous effects upon federalism. RFRA was of a piece with this trend, and its unanticipated consequences were already beginning to come into view.
We need to find better ways of protecting the religious freedom that Mr. Diament and I both cherish, and this will require a more serious and disciplined response from Congress.