Thirty years ago today, I was standing on the lawn of the White House on an unusually warm and sunny November day watching President Bill Clinton sign a piece of legislation titled the Religious Freedom Restoration Act (RFRA).
Spirits were high. RFRA had been drafted in response to a 1990 decision by the Supreme Court that many court observers felt took an unnecessarily restrictive view of the First Amendment’s religious freedom provisions.
Passage of RFRA took three years of hard work by an unexpected coalition of religious and public policy groups all over the political spectrum. We often didn’t agree, but we were on the same page here: This legislation was necessary.
RFRA: What went wrong?
Three decades later, we can see that something has gone wrong. RFRA was intended to protect religious freedom – especially minority religious expression – not become a vehicle for discrimination. Yet that is what has happened, as the Supreme Court and lower federal courts have used the law in ways it was never intended.
Back in 1990 when RFRA was first proposed, the coalition backing it wanted to protect individual religious expression. We sought to help the Native Americans struggling to engage in traditional practices. We wanted to assist Jews and Muslims seeking the right to wear religious attire at work. We wanted to ensure that people who are incarcerated had access to the meals their faiths mandated.
RRFA helped address those issues of individual religious freedom for years. But now the law is being cited in ways that undermine the rights of others – and that was never RFRA’s intention.
In recent years, RFRA has been used to deny employees insurance coverage for birth control and HIV prevention medication, allow employment discrimination by for-profit businesses and by taxpayer-funded organizations that take federal money to provide social services, and let taxpayer-funded foster care agencies turn away potential parents because they are the “wrong” religion or LGBTQ.
Put simply, RFRA has been pointed to as justification for shabby forms of discrimination.
The fix: The Do No Harm Act
The law was never intended to do these things. And the best way to ensure that this stops is to change RFRA. Pending legislation in Congress, the Do No Harm Act (DNHA), would do the job. DNHA would get RFRA back to its original purpose by making it clear that the law can’t be used to override laws that protect us all.
Under the Do No Harm Act, RFRA could no longer be used to further discrimination, violate equal treatment provisions or trump measures designed to protect child welfare. It would also ensure that government officials and employees can’t use RFRA to refuse to provide services to the public.
We were filled with promise 30 years ago at the White House when RFRA became law at the stroke of a pen. We can recapture that spirit and ensure that RFRA once again becomes a shield that protects religious freedom, not a sword that lashes out and causes harm.
The first step is for you to tell your member of Congress to co-sponsor the Do No Harm Act.
Photo: President Bill Clinton signs the Religious Freedom Restoration Act on Nov. 16, 1993