Twenty-six years ago tomorrow, President Bill Clinton signed the Religious Freedom Restoration Act (RFRA) into law. It was a piece of legislation born of good intentions that has since been twisted into something it was never meant to be – and it’s time to fix it.
Some background: RFRA came about because of a Supreme Court ruling from 1990 called Employment Division v. Smith. In that case, the high court abruptly jettisoned several decades of existing precedent governing religious freedom cases and substituted a new standard, one that, to many groups, seemed to be unduly harsh and restrictive – especially as it applied to the religious expression of minority faiths. (Indeed, the Smith case centered on traditional Native American rituals.)
RFRA was designed to bring back the old standard the court had used for many years – that’s why it has “restoration” in its name. The bill was never intended to create new rights or legal rules. And for many years, it did what it was supposed to do: preserve the free exercise of religion as a valued right of the American people.
RFRA was signed into law with bipartisan support. Back in 1993, no one ever thought the law would give one person – or even a for-profit corporation – the power to take away another’s rights or cause that person harm.
As passed, RFRA applied to the federal government and the states. In the 1997 case City of Boerne v. Flores, the Supreme Court limited its enforcement to the federal government only. In the years that followed, two unfortunate things happened: Some courts interpreted the federal version of RFRA in ways its original supporters never intended, and some states passed their own versions of “religious freedom” laws that went way beyond the original intention of RFRA.
Although RFRA is still sometimes used in ways that genuinely protect religious minorities, it is now too often exploited to justify discrimination and other harms to others. The misuse of RFRA has dramatically escalated during the Trump years, and the law is being cited to justify various forms of discrimination. This must stop.
It’s time to fix this law. The good news is, there’s a way to do it. The Do No Harm Act, introduced by U.S. Reps. Joseph P. Kennedy III (D-Mass.) and Robert C. “Bobby” Scott (D-Va.) in the House, and by U.S. Sen. Kamala Harris (D-Calif.) in the Senate, would amend RFRA in a manner that would ensure that the law continues to provide important protections for religious exercise but clarify that the law may not be used to harm others.
AU President and CEO Rachel Laser testified in favor of the Do No Harm Act before a congressional committee this June. You can watch her testimony here. You can also learn more about the Do No Harm Act and why it’s imperative that we pass it – and how you can help.
The Do No Harm Act will return RFRA to its original purpose – making it clear that religious freedom is a shield that protects the individual, not a sword that lashes out at others. It’s time to pass this critical piece of legislation.