In the past few years, a handful of states has considered enacting new state RFRAs. 2017 looks to be no different.
The Religious Freedom Restoration Act of 1993 (RFRA) was born of good intentions: to protect the fundamental American value of religious freedom.
In the two decades since, however, many have misconstrued and exploited the law in ways that would result in harm to others. We can’t stand by and watch the corruption of the noble concept of freedom of religion and belief. RFRA should be restored to its original purpose so that the law, once again, can be a shield to protect religious freedom and not a sword to harm others.
In a 1990 case, Employment Division v. Smith, the Supreme Court changed the rules for how religious freedom cases would be judged and effectively lessened constitutional protections for rights of conscience. 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 peyote – an illegal substance – even though they used it as part of a religious ritual.
After Smith, a broad coalition of religious and public policy groups on all points of the political spectrum, including Americans United, formed to support the passage of RFRA. We believed it was a reasonable response to the Supreme Court decision because it ensured heightened protections for religious exercise. In 1993, Congress passed RFRA and President Bill Clinton signed it in to law.
It is important to remember that the three years of discussion and debate on RFRA centered on how to protect minority religious practice from government proscription, such as ensuring Jewish children could wear yarmulkes in public schools or Muslim firefighters could wear beards. Had anyone argued that RFRA was designed to allow some to run roughshod over the rights of others, the broad coalition would have splintered.
But somewhere along the way, an unexpected and unfortunate thing happened. Although RFRA certainly provided key protections for religious exercise, some also began to use it in ways that harmed and denied the rights of others.
At first, landlords who refused to rent apartments to unmarried couples on religious grounds brought lawsuits, in some cases under RFRA, 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 notorious 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.
RFRA, of course, was never intended to do any of these things. It was conceived as a way to protect an individual’s right to religious freedom; it was never meant to be a mechanism for controlling what others do or taking away their rights.
As someone who worked on RFRA’s passage, I am deeply disappointed that the law is being misused in these ways. We should not allow people to engage in discrimination or the denial of services under the guise of religious liberty. Such an outcome both harms others and ultimately deteriorates this fundamental freedom. I believe it’s past time to get back to the original understanding of RFRA and indeed, real religious liberty.
Today, U.S. Reps. Joseph P. Kennedy III (D-Mass.) and Robert C. “Bobby” Scott (D-Va.) introduced legislation to do just that. The Do No Harm Act would restore RFRA by preserving its power to protect religious liberty but also clarifying that it may not be used to harm others.
The bill simply says that RFRA shouldn’t be used to create religious exemptions to laws that are designed to protect our neighbors, like those prohibiting discrimination, requiring equal pay and protecting children’s welfare. It also says government officials and employees can’t use RFRA to refuse to provide services to the public; we all deserve to be treated equally by our government.
At the same time, this bill ensures that RFRA will remain a vital way to protect religious exercise, such as for Sikh soldiers barred by Army regulations from serving their country while wearing their articles of faith or Native Americans prohibited from using eagle feathers in their religious ceremonies.
The Do No Harm Act furthers religious freedom. We are free to believe or not, as we see fit, and to practice our faith – but we may not act in a way that causes harm to others. This understanding of religious liberty is enshrined in the First Amendment to the U.S. Constitution. And fundamentally, this is a basic tenet we all understand: We should treat others fairly, as we would like to be treated.
The Do No Harm Act honors this.
Barry W. Lynn is the Executive Director of Americans United. Follow him online at @barrywlynn
As state legislatures across the country begin their sessions, there are already almost 20 bills in 11 states that would either create or amend an existing RFRA. Today we highlight RFRA bills that have been making headlines.
As predicted, legislators in Virginia have been busy preparing legislation for the 2016 state legislative session. Although the General Assembly does not officially begin for a few weeks, state Senator Charles Carrico has already pre-filed two bills that relate to marriage and “religious freedom.” Rather than protect real religious freedom, these bills would allow individuals to discriminate against LGBT couples in the name of religion. Fortunately, Virginia Governor Terry McAuliffe has said that he will veto these bills if they were to pass.
As the states gear up to reconvene their legislative sessions after the New Year, we can expect to see many states pursuing Religious Freedom Restoration Act (RFRA) legislation. We often focus on states without state-level RFRAs that attempt to pass bills to create a new law; for example, last year both Indiana and Arkansas passed new RFRA legislation, and the sponsor of Georgia’s bill to create a RFRA has said he will introduce legislation in 2016. However, state legislative activity is not limited merely to creating new RFRA laws. Even in states that currently have RFRA laws, we anticipate that there will be increasing attempts to expand these state RFRAs.
Last week a federal court in Pennsylvania rejected yet another challenge to the Affordable Care Act's contraceptive coverage regulations. This challenge was a bit different than many of the others: it was brought by a non-religious organization and its three employees. The organization claims that it is morally opposed to birth control and that the Equal Protection Clause entitles it to the same exemption as houses of worship; the employees claim that they have a right, under the Religious Freedom Restoration Act, to exclude contraceptives from their own insurance coverage (even though nobody is forcing them to use the coverage). The plaintiffs are represented by Alliance Defending Freedom, which also represents March for Life in a similar lawsuit in federal court in Washington, DC.
Remember when Indiana passed its version of a RFRA bill earlier this year? Its passage drew intense criticism from all over the country and boycotts from variety of sources, including corporations like Angie’s List and the NBA. The governors of some other cities and states even enacted bans on state-funded travel to Indiana. The backlash was focused on the fact that Indiana’s RFRA would allow businesses to discriminate against the LGBT community in the name of religion.
Last week, Senator Orrin Hatch (R-Utah) concluded his sixth speech in a series of floor speeches devoted to the topic of religious liberty. Senator Hatch’s speeches have covered everything from the history of religious freedom to threats to religious liberty abroad. Or at least, he has covered everything from his point of view of what religious liberty means.