April 2021 Church & State Magazine | Featured

In a March 6 op-ed column, Amer­i­cans United Senior Adviser Rob Boston recalled the experience nearly three decades ago when he had a front-row seat to then-President Bill Clinton signing the Religious Free­dom Restoration Act (RFRA) into law.

“It was a euphoric moment for those of us who advocate for religious freedom,” Boston wrote for The Hill. “RFRA had been drafted in response to a 1990 decision by the Supreme Court that many felt took an unneces­sarily rigid, confining view of the First Amendment’s religious freedom pro­tec­tions – a view that would be parti­cularly harmful to religious minor­ities.”

In that Employment Division of Oregon v. Smith decision penned by Justice Antonin Scalia, the court ruled in a way that many feared would make it harder for people to get religious accommodations that allowed them to practice their faith in ways that didn’t harm anyone else – such as being able to wear religious garb at work.

RFRA was meant to restore the legal standard that government could not restrict someone’s religious prac­tices unless the government could prove doing so served a greater good – called a compelling government interest – such as preventing discrim­ination or ensuring people have ac­cess to health care.

“An unprecedented coalition formed to pass RFRA to protect the free exercise of religion,” Boston wrote. “It consisted of groups on the right and left and every place in between. Some were religious organi­zations, others secular. They disa­greed on a lot, but they came together to pass this legislation.”

But now, Boston acknowledged, we are far removed from that sunny day at the White House on Nov. 16, 1993. And many who lauded RFRA then – including Americans United – are urging Congress to pass the Do No Harm Act now to return RFRA to its original intent and prevent religi­ous freedom from being misused in ways that were never supported by RFRA’s original backers.

“Despite the intent of the Religious Freedom Restoration Act to protect free exercise and religious minorities, some are misusing what they call ‘reli­gi­ous freedom’ to ignore nondis­crimination laws and deny people access to health care, jobs and government-funded services,” Ameri­cans United CEO and President Rachel Laser said in a Feb. 25 state­ment. “This exploitation of religious freedom especially harms LGBTQ people, women, religious minorities and the nonreligious by undermining their civil rights and equality.”

Laser’s statement was issued in response to U.S. Reps. Robert C. Scott (D-Va.), Steve Cohen (D-Tenn.), Jamie Raskin (D-Md.) and Mary Gay Scanlon (D-Pa.) re-introducing the Do No Harm Act (H.R. 1378).

“When Congress passed the Reli­gious Freedom Restoration Act in 1993, it was intended to protect religi­ous exercise – not to erode civil rights under the guise of religious freedom,” said Scott, chairman of the House Education and Labor Committee. “Re­grettably, we have seen RFRA repeat­edly used to attack civil rights pro­tections, deny access to health care, and allow discrimination in federal contracts and programs.

“The Do No Harm Act simply pro­vides that RFRA cannot be used to limit access to health care, deny ser­vices supported by taxpayer dollars, or undermine the Civil Rights Act or other anti-discrimination protec­tions,” Scott said. “Congress must take this critical step to ensure no one can weap­onize religious freedom to erode our fundamental civil and legal rights.”

The Do No Harm Act would leave in place RFRA’s intended protections for the free exercise of religion, par­ti­cularly for people of minority faiths. People in federal prisons and immi­gra­tion detention centers could still use RFRA to protect their right to attend worship services or keep religi­ous texts. Sikhs and Muslims could still use RFRA to get an exception to allow them to serve in the military while wearing beards or other articles of faith.

At the same time, the Do No Harm Act will amend RFRA to ensure that no one misuses it to undermine nondiscrimination laws, deny access to health care, thwart protections for workers, evade child-labor laws or limit access to services provided by the government.

AU’s “Wall of Separation” blog highlighted several real-life examples of RFRA’s being misused to harm people. The Trump administration frequently cited RFRA to justify its harmful policies – such as the waiver it granted to taxpayer-funded foster-care agencies in South Carolina, al­lowing them to reject prospective parents and volunteers who are the “wrong” religion or LGBTQ. That’s what happened to AU client Aimee Maddonna, a mother of three who was turned away by the evangelical Protestant Miracle Hill Ministries sole­­ly because she’s Catholic.

The Trump administration also cited RFRA when it created a rule allowing employers and universities to cite religious objections to deny workers and students access to birth control guaranteed by the Affordable Care Act. AU clients at the University of Notre Dame lost access to critical reproductive health care as a result of the rule.

More than 95 civil-rights, LGBTQ, health, labor and faith groups en­dorsed the Do No Harm Act. That in­cludes more than 30 organizations representing diverse faith traditions such as the United Methodist Church General Board of Church & Society; T’ruah: The Rabbinic Call for Human Rights; United Church of Christ Jus­tice & Witness Ministry; Uri L’Tzedek: Orthodox Social Justice; Presbyterian Church (U.S.A); American Baptist Home Mission Society; Circle Sanctu­ary; Disciples of Christ Center for Pub­lic Witness; Global Justice Insti­tute, Metropolitan Community Churches; Muslim Advocates; and the National Council of Churches.

Faith leaders in particular recog­nize that the Do No Harm Act streng­th-­­   ens religious freedom protections for everyone.

“Freedom of religion is a sacred principle in our country, but so too is the principle of equal rights under law. Our nation is made stronger when every person is treated fairly, equally, and with dignity,” said Rabbi Robert B. Barr of Congregation Beth Adam in Ohio. “Thus, all who value living in a nation where freedom of religion and equal rights are cele­brated should welcome the reintro­duction of the Do No Harm Act.”

“The rights of religious minorities should and must be protected, but those rights cannot be used in such a way that they allow for others to be discriminated against,” said Jim Wink­ler, president and general secre­tary of the National Council of Churches, and a member of AU’s Board of Trustees. “The Do No Harm Act will help ensure that RFRA oper­ates as it was intended.”

“In the civil rights struggles of the 1960s, it was determined that dis­crimination of Blacks and other racial minorities was not legal, even if someone had religious convictions that would support the discrim-   ­    in­ation,” said the Rev. Nancy E. Brink, also an AU trustee, as well as the director of church relations at Chap­man University in California. “In recent years, fundamentalist Chris­tians have tried – and often suc­ceeded­ – to discriminate against LGBTQIA people in areas such as adop­­tion and foster parenting, em­ployment, and public businesses.

“Constitutionally protected religi­ous freedom is not a license to dis­criminate against others, but a shield to protect religious minorities and the non-religious from the tyranny of those who would like to make their religious views the law of the land,” Brink said.

On Feb. 25, the Do No Harm Act had 102 original House co-sponsors – the most it’s ever had upon intro­duction; it had gained at least 13 more co-sponsors in the weeks im­med­iately afterward.

Before the last Congress ended, the bill had gained more than 200 co-sponsors. Americans United has been a lead supporter of the bill since it first was introduced in 2016. The Do No Harm Act was a focus of AU’s Day of Action during the Virtual National Advocacy Summit last fall; AU acti­vists participated in more than 100 lobby visits with congressional offices to encourage House support. In 2019, AU’s Laser testified during a con­gressional hearing about the misuse of RFRA and the need for the Do No Harm Act.

At Church & State’s press time, the bill had not yet been re-introduced in the Senate. Since former Senator, now Vice President, Kamala Harris intro­duced the bill in the Senate in the last two Congresses, it will need a new senator to serve as lead sponsor.

“It’s time to recapture the spirit of hope that birthed RFRA by getting the law back to its original purpose,” Boston wrote in The Hill. “RFRA must once again become a shield that pro­tects religious freedom, not a sword that lashes out and causes harm.

“There is an easy way to do that: Pass the Do No Harm Act.”            

To urge your member of Congress to support the Do No Harm Act, visit act.au.org/support-DNHA.