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Issue: "China’s one-child policy," June 27, 1998

Colson responds

The gravest threat facing Americans today is the ruthless usurpation of legislative power by the courts. And the gravest threat facing Christians today is the assault on religious liberty by Supreme Court decisions that have made the free exercise of religion a second-class right. Fortunately, Congress is gearing up to deal with both of these threats in one bill, the Religious Liberties Protection Act (RLPA). It reasserts Congress' authority to protect our rights and, in effect, reinstates the protections we had under the Religious Freedom Restoration Act (RFRA), which the Court struck down in its dreadful decision last summer, Boerne v. Flores. Unfortunately, World's cover story last week made it appear the Christian community is deeply divided over RLPA. This is simply not true. To the contrary, RLPA is supported by the broadest based Christian coalition assembled in recent memory. It includes the Southern Baptists, National Association of Evangelicals, Prison Fellowship, Focus on the Family, Family Research Council, Christian Legal Society, the Roman Catholic Bishops, Association of Christian Schools International, American Center for Law and Justice, Christian Coalition, Justice Fellowship, and most mainline churches. World has done a great disservice not only by making it appear-wrongly-that Christians are divided, but also by failing to warn of the consequences should Congress not pass RLPA. Let us lay out in blunt and stark terms what is at stake: First, religious freedom will be impaired. Since the Boerne decision, Christian day-care centers in Philadelphia have been ordered to comply with city ordinances prohibiting discrimination because of faith or sexual orientation; Bible studies in South Carolina were broken up by officials claiming the meetings violated a zoning ordinance; and, in California, death row prisoners are not allowed to take Bibles to Bible studies. How can government officials interfere in religious practices like these? The answer is that in the Boerne decision the court eliminated the long-established standard for protecting religious practices. This standard required the government to prove a "compelling state interest" before interfering in a religious exercise and then it could do so only in the least intrusive way. By knocking that out, the court emasculated the Free Exercise clause, and reduced religious liberty to a second-class right. They gave the green light to government agencies to interfere with religious practices. And they have done so with gusto. Second, our right to representative government will be gravely impaired. The courts made a power grab in the Boerne decision, not only ruling that RFRA was unconstitutional, but in asserting that the court, and the court alone, may interpret the meaning of the Constitution. Congress, the court said, could not expand constitutional rights! That position would have horrified the founding fathers, who deliberately left this issue ambiguous, giving all three branches some role in constitutional interpretation. Thomas Jefferson rightly feared a judicial oligarchy, which is precisely what this decision will lead to. Professor Russell Hittinger called the Boerne decision "a silent coup d'etat." This unprecedented power grab must be challenged immediately or it will stand as a precedent. If RLPA does not pass, and Boerne stands, the courts will be able arbitrarily to dismiss any legislation that Congress passes in accord with the people's moral traditions. We've already seen them do it in Romer v. Evans, overruling Colorado's initiative that prohibited special rights for homosexuals. And they have already silenced the states from dissenting from Planned Parenthood v. Casey, which enshrined the abortion right. If Congress fails to challenge the court by passing RLPA, the court's coup will be complete. They will have eliminated all avenues for dissent from their imperial rule. RLPA's opponents, chiefly CWA, the Eagle Forum, and the Home School Legal Defense Association do not deny the need for a bill to reinstate the protections of RFRA and challenge the court. They only object to RLPA because it is based on Congress' authority under the Commerce Clause of the Constitution. This is troublesome on two counts. First, the partial-birth abortion ban is also based on the Commerce Clause; if the Commerce clause can't be used to save religious liberty, it can't be used to stop infanticide. We're not ready to surrender to the killing of babies any more than we are ready to leave our religious liberties unprotected. Second, the opponents of RLPA claim that it would expand the federal government's intrusion into our lives. To the contrary, RLPA uses the Commerce Clause to stay the hand of government. The courts have already intruded into religious liberty. RLPA would intervene to stop it. The opponents say they would prefer to use other means, but the congressional leadership insists it will only use the Commerce Clause. So by opposing RLPA, they would leave us without statutory protection for our religious liberty, and leave the court's power grab unanswered. That would be calamitous. Do we really want to allow our differences over which clause in the Constitution we should use to prevent Congress from acting to protect religious liberty, reassert our right to self-determination, and stop infanticide? There is no question where right-thinking Christians should come down. This is why Jim Dobson, Gary Bauer, Don Hodel, and both of us, among others, are working feverishly to pass the RLPA. We owe a great debt to Congressman Charles Canady, an evangelical Christian who has taken the lead in restoring religious liberty. We can only pray that the congressional leadership will not use the excuse of some division in religious ranks, which World has sadly escalated out of all proportion, to duck this issue. If Congress does not pass RLPA this session, we will be left with no statutory protection for our first freedom, religious liberty; and, grave damage will have been done to our ability to legislate in accordance with our moral traditions. - Charles W. Colson
chairman, Prison Fellowship
-Pat Nolan
president, Justice Fellowship,

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