The marble pillars of the Supreme Court building rise imperiously across the street from the U.S. Capitol—as though these two branches of government were staring each other down, the better to keep the balance of power.
But this summer, in Boerne v. Flores, the Court tilted the balance dangerously, precipitating what may be the greatest constitutional crisis of our age.
The primary issue in Boerne was the "free exercise" clause of the First Amendment. For some 35 years, the Court had held that religious practice could be curtailed only if the state showed a "compelling state interest" (e.g., protection of public health or safety). But in Employment Division v. Smith (1990) the Court dropped the "compelling interest" test, demoting religion to the level of a personal preference. Congress responded with the Religious Freedom Restoration Act (RFRA), restoring the "compelling interest" test. And in Boerne, the Court retaliated, striking down RFRA.
This unprecedented tit-for-tat raises two fundamental issues. First, religious liberties are once again vulnerable. In the interim between Smith and RFRA, an Ohio fire marshal threatened to fine Christmas Eve worshipers for carrying sacramental candles, an Illinois county forbade Orthodox Jews to wear yarmulkes in courtrooms, and a Maryland ordinance instructed a Catholic hospital to train its interns to perform abortions. Under Boerne, such violations of religious liberty will begin anew. Already it has been cited in a Texas case where Catholic schoolboys were forbidden to display rosaries around their necks, and in a Los Angeles case where an Orthodox Jewish congregation was ejected from a neighborhood where it had met for two decades.
But Boerne also raises a profound constitutional ...1