U.S. Reps. Joseph P. Kennedy III (D-Mass.) and Robert C. “Bobby” Scott (D-Va.) on May 18 introduced legislation that would counteract some of the harmful effects of the federal Religious Freedom Restoration Act (RFRA) and restore it to its original intent.
The “Do No Harm Act,” (H.R. 5272) would preserve RFRA’s power to protect religious liberty but also clarify that it may not be used to harm others.
Passed in 1993 with overwhelming bipartisan support, RFRA was intended to protect religious minorities from government overreach in the wake of the U.S. Supreme Court’s 1990 decision in Employment Division v. Smith.
In Smith, the court held that neutral and generally applicable laws do not violate the Free Exercise Clause of the First Amendment. Thus, the state of Oregon could deny unemployment benefits for two Native American men who were fired for using an illegal substance, peyote, even though they used it as part of a religious ritual. Smith changed the rules for how religious freedom cases would be judged and effectively lessened constitutional protections for rights of conscience.
Leading up to RFRA’s passage, religious and public policy groups on all points of the political spectrum supported RFRA (including Americans United). Members of Congress primarily focused on how best to protect minority religious practice from government intervention, such as ensuring Jewish children could wear yarmulkes in public schools or Muslim firefighters could wear beards.
But since then, RFRA has been used in ways that harm and deny the rights of others. At first, landlords who refused to rent apartments to unmarried couples on religious grounds sued to obtain exemptions from laws prohibiting housing discrimination. Since then, individuals, religiously affiliated federal contractors and even for-profit businesses have attempted to exploit RFRA to trump non-discrimination, health and safety laws.
The most well-known example is Hobby Lobby, a national craft store chain with tens of thousands of employees that used RFRA to refuse to provide its workers insurance coverage for contraception.
“When Congress passed RFRA in 1993, the goal was to protect religious freedom for minority groups,” Scott said in a statement. “Since then, the law has been misconstrued as allowing the sincerely held religious beliefs of one person to trump the civil rights of others….The Do No Harm Act restores the original intent of RFRA.”
Kennedy added in a statement, “The right of Americans to freely and fully express our faith is sacred in this country. But in order to guarantee that liberty for every citizen, our system must ensure that my religious freedom does not infringe on yours or do you harm. While not its original intent, the Religious Freedom Restoration Act has become a vehicle for those seeking to impose their beliefs on others or claim that the tenets of their faith justify discrimination. The Do No Harm Act will restore the balance between our right to religious freedom and our promise of equal protection under law.”
Forty organizations, including denominations and advocates for civil rights, reproductive rights, LGBT rights and labor, have endorsed the bill.
Americans United Legislative Director Maggie Garrett was on hand for the bill’s unveiling on Capitol Hill and spoke at a press conference along with representatives from a few other endorsing organizations.
“The Do No Harm Act will allow us to continue to use RFRA to grant important accommodations for religious exercise, but only where they do not harm others – such as when a Sikh soldier seeks to serve his country while wearing his articles of faith,” Garrett said. “We are proud to stand here today to support the Do No Harm Act because it will restore RFRA to its original purpose: RFRA should be a shield that protects religious exercise rather than a sword to harm others.”