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Ripping down RFRA

"Ripping down RFRA" Continued...

Issue: "Taking the Bait?," July 12, 1997

Mr. Jipping is ready for option two: "If our first liberties are not worth confrontation, nothing is.... Congress ought to strip the court of jurisdiction and reinstate RFRA."

Jim Cox of the Rutherford Institute, Don Hodel (new president of the Christian Coalition), Cathy Cleaver of the Family Research Council, and Greg Baylor of the Christian Legal Society were among those in the chorus of denunciation. "We were somewhat surprised by it, although the tenor of the oral argument was such that it wasn't a complete surprise," says Mr. Baylor, assistant director of the Christian Legal Society. "More justices were telegraphing the punch than I anticipated, expressing some pretty serious reservations about the scope of Congressional power. Many of them did seem to be unsympathetic to the archbishop's argument."

In the world of our Founding Fathers, the First Amendment would be a sufficient protection against the establishment of a governmental religion, with the further protection of the free exercise clause of the Fourteenth Amendment. But in the 1997 world of judicial activism at all levels, judges are reinterpreting those protections. "The problem," Mr. Baylor says, "is the court really is for the most part the final arbiter for what the Constitution means. We think that the court got it wrong in the Smith case, that they just interpreted the free-exercise clause in a way that was inconsistent with history and was inconsistent with the long-standing precedent that the court rejected in that case. But you've got to live with that. What do you do now?"

While discouraged about the decision, he says, he is encouraged by congressional reaction and support from President Clinton. "The willingness of prominent members of Congress to stand up on the steps of the Capitol within hours after the decision came down says something, says these senators and representatives are concerned about religious liberty in America.

"The fact that you have diverse groups rallying around RFRA after the Smith decision and diverse groups rallying around some response to the Flores case ... is an indication of how bad a thing the Supreme Court has done, an indication of the grievousness of the error they've made."

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