I can tell you exactly what I was doing 25 years ago today: standing on the lawn of the White House watching President Bill Clinton sign a piece of legislation. It was a bright, unusually warm November day, and I was peering through the viewfinder of my manual camera as I jockeyed with members of the press to get a good photograph.
The legislation in question was the Religious Freedom Restoration Act (RFRA). Joining Clinton, Vice President Al Gore and members of the House of Representatives and Senate were representatives of dozens of religious and public policy groups that had helped pass the bill. The signing capped three years of hard work, and we all felt good: The legislation was heralded across the political spectrum as a milestone in religious freedom.
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.
The idea behind RFRA was to bring back the old standard the court had used for many years, hence the word “restoration” in its name. RFRA was not intended to create new rights or legal rules. And for many years, it did what was intended to do: elevate the free exercise of religion as a valued right of the American people.
RFRA had bipartisan support, and one thing I can tell you for sure is that the law, as originally conceived, was never intended to give one person the power to take away another’s rights or cause that person harm. RFRA was designed to protect the crucial right of religious expression; it was meant to be a shield, not a sword.
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 for good – like protecting Sikh soldiers barred by Army regulations from serving their country while wearing their articles of faith – it is now too often exploited to justify discrimination and other harms to others.
The misuse of RFRA has been a key tool used by the Trump administration in its efforts to allow religion to be used to discriminate. For example,
- The Department of Health and Human Services (HHS) is considering South Carolina’s request for an exemption under RFRA to allow taxpayer-funded foster care agencies to use religion to discriminate against prospective parents.
- The Department of Justice on Oct. 6, 2017, released “religious liberty” guidance that creates a blueprint to discriminate, using an extreme interpretation of RFRA and religious freedom to allow taxpayer-funded organizations, corporations and individuals to use religion to discriminate against others.
- The administration, asserting authority under RFRA, finalized rules that allow employers and universities to cite religious objections to deny birth control insurance coverage to employees and students.
- HHS’s new strategic plan for 2018-2022 suggests it will rely on RFRA to allow taxpayer-funded contractors and grantees to decide, based on their religious views, whom they will serve and which services they will provide.
- In August 2018, the Department of Labor’s Office of Federal Contract Compliance Programs issued a new directive to make it easier for any federal contractors to use religion to justify employment discrimination, especially against women and LGBTQ workers. To accomplish this, the administration will rely on RFRA.
RFRA was never intended to allow things like this. Any hint that it would ever be interpreted that way would have torn apart the coalition that came about to secure its passage in 1993.
The good news is, we can fix RFRA at the federal level. The Do No Harm Act, introduced last year by U.S. Reps. Joseph P. Kennedy III (D-Mass.) and Robert C. “Bobby” Scott (D-Va.), 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.
A new Congress will be seated early next year. The House of Representatives, which will under the control of Democrats, should hold hearings on the Do No Harm Act. A public discussion of the way RFRA has been misinterpreted is the first step toward settings things right.