Supreme Faith.

The Supreme Court has drawn mixed reviews for striking down the Religious Freedom Restoration Act. Richard John Neuhaus sees the Court's action as a threat to religious liberty; George Will saw the law itself as a threat to the Constitution.

The law was a response to an earlier Supreme Court decision on the issue of whether the free exercise of religion exempts believers from laws that burden their faiths. The Court held that such exemptions need not be granted. The bi-partisan uproar that ensued led to RFRA, which restored exemptions based on faith--so that, for instance, anti-drug laws would not punish the Native American Church for sacramental use of peyote.

The act was not the best response to these concerns. The Court had made the fight decision. It had not precluded state legislatures from accommodating religious believers on a case-by-case basis (as long as the exemptions were formally neutral among religions). Instead, the act created a sweeping, indeed conceptually boundless, right to faith-based exemptions enforceable by the federal judiciary. That is why Mr. Will, never a fan of promiscuous rights talk and rarely a fan of the courts as currently constituted, objected to RFRA.

A misguided law, however, is not necessarily an unconstitutional one. The demise of RFRA ought to inspire mixed feelings because of the grounds on which the Supreme Court struck it down. The Justices asserted that Congress, in second-guessing the Court's interpretation, had usurped its power. Mr. Will thinks with many others that this conclusion follows logically from the Court's discovery in Marbury v. Madison of the power of judicial review. But Marbury did not establish the supremacy of the Court over Congress; it established the supremacy of a written Constitution over both. It could not, therefore, relieve Congress of its duty to interpret the Constitution to the best of its ability.

This ruling--in which Justices Thomas and Scalia concurred--is a body blow to those conservatives who have been proposing that Congress use its power to enforce the Fourteenth Amendment (expressly granted in Section 5) to challenge wrongheaded Court decisions. RFRA was, in effect, an attempt to do just that. The same principle on which it was nullified could conceivably block efforts by Congress to restrict the courts' jurisdiction under Article III, Section 2--in which case only new constitutional amendments would counter a stubborn Court.

The road the Court has followed in this case has more twists and turns than usual, but the destination remains judicial rule. With this decision, and another leaving open the possibility of a constitutional "right" to assisted suicide, the Justices have deepened our constitutional crisis.