These days public discussion of the American Constitution is all about “rights.” So the media pulsate with talk of civil rights, rights of speech, press, and religion, the right to bear arms and, lately, the right to beg alms. Parts of the Constitution not involving rights claim little popular attention.
But on the horizon looms a crisis over a provision of the Constitution that says not a word about rights. Those are the structural provisions creating three branches of the national government, each of whose powers, carefully drafted, is distinct, one from the other. Routinely unnoticed by rights advocates, that separation of powers is immensely relevant to whether we can be a society in which anyone enjoys rights.
The Constitution’s framers got the idea of separation of powers from the examples of England and, ultimately, Rome of the second century B.C. Those societies had seen the importance to liberty of keeping each governmental branch—executive, legislative and judicial—from accumulating all the power of the state. The framers, with Montesquieu, saw that “power can be restrained only by counterbalancing power.” They thus rejected Leviathan, the Hobbesian totalitarian state.
In Gaudium et Spes, the Second Vatican Council warned against any kind of government that “wrenches the exercise of authority from pursuing the common good to serving the advantage of a certain faction.” The warning may be relevant to governance within our own political system. American history has witnessed severe political crises over charges that one or another of the three branches of the national government has wrenched for itself a dangerous monopoly of governmental power. Franklin Roosevelt, in 1937, accused the “nine old men” of the Supreme Court of having done that, while his retaliatory scheme to pack the Court with political allies caused him, as chief executive, to be denounced as a “dictator.” This winter’s budget crisis has seen both the Congress and the president accused of dictatorial power-wrenching.
As to the Congress and the president, the election process is a means of correcting accumulations of power. But Supreme Court justices are not subject to that process and enjoy life terms. The power of the Court is stupendous, in particular because the Court, since 1816, has held itself to be the final expositor of the Constitution. In that year Chief Justice John Marshall in Marbury v. Madison, stated that legislative acts repugnant to the Constitution are void and that it is the Supreme Court that determines repugnancy. The immense, sometimes lethal, significance of this is seen in our own time in the Court’s abortion decisions of 1973 and 1992 and its 1990 decision in Employment Division v. Smith. It is that decision which points to the constitutional crisis that now likely looms.
The Smith decision puts religious liberty at hazard by a new interpretation of the First Amendment’s clause protecting the free exercise of religion. Prior to Smith the Court had held that government may not impair religious liberty unless it proves that some “compelling state interest” requires that and that no less restrictive means is at government’s disposal. This rule proved highly protective of religion. The Court, in Smith, jettisoned it, saying that government may limit religious liberty if government’s action is “religiously neutral” and is “of general application.” A virtually unanimous protest by religious groups exploded, the concussion soon reaching Congress. The Court’s substituted rule was seen as giving enormous power over religion to the secular state. “Religiously neutral” governmental action that does not mention religion or religious institutions and that is applied across the board to religious and secular interests alike may gravely impinge upon their liberty. The expansion of the state in every area of national life—health, employment, welfare, education, land use, to name but some—is regularly accomplished by laws that never mention religion. Congress’s response to the anti-Smith protest, the Religious Freedom Restoration Act (RFRA), became law in 1993. It restored the pre-Smith “compelling state interest–least restrictive means” test.
Last year Archbishop Paul F. Flores, of San Antonio, decided to enlarge a parish church in the tiny hamlet of Boerne, Texas, to accommodate a growing Catholic population. City officials denied him permission for this, since the rebuilt structure of this 1923 edifice would violate the city’s historic preservation law. The archbishop challenged the city’s action in federal court as violating the RFRA. Surely, he argued, accommodating worshipers was an important exercise of religion. Surely, there was no compelling governmental interest in frustrating that interest by freezing the church in a 1923 mold. But the court held the RFRA unconstitutional as violating the requirement of separation of powers. The court returned John Marshall to center stage, with his insistence that it is the judiciary, not Congress, which should determine constitutional issues. “In this instance,” said the Court, “Congress specifically sought to overturn Supreme Court procedures.”
The Flores case is moving in the courts on appeal. Meanwhile, courts in Hawaii and Wisconsin have upheld RFRA over challenges to its constitutionality. They have rejected the reasoning of the Flores decision, holding that Congress is free to protect religious liberty to a greater extent than the Supreme Court interprets the Constitution to require. Congress, they contend, has power under the Fourteenth Amendment to enforce its provisions protecting people against actions of states denying their civil liberties.
It is too early to know whether the cases challenging the RFRA will reach the Supreme Court, but the likelihood is considerable. Mainly, however, will be the obligation felt by state attorneys to follow Smith (and the zeal of some to push secular, as against religious, claims). The situation is not without irony. The Supreme Court has accumulated vast and, in some ways, inordinate powers through its rulings for the nation, extending itself into regions of American life that, as Francis Canavan well suggests in his new book, The Pluralist Game, could best have been left to the political processes of the states. But the original source of that accumulation was Marshall and his Marbury opinion—the very opinion supporters of RFRA are now able to brandish against the Court’s Smith decision on separation of powers grounds. A further irony lies in the fact that that unfortunate decision was the work of four justices (Scalia, Rehnquist, Kennedy, and O’Connor) most often dubbed “conservatives” by the media. (The fifth vote came, not unexpectedly, from the Court’s chief secularist, John Paul Stevens.) How the RFRA and Smith will fare if a test case reaches the Court cannot be guessed. But the stakes are great where the principle of the separation of powers is at war with the principle of free exercise of religion.