Does landmark religious freedom legislation need a fix or is it fine as is?

Does the landmark Religious Freedom Restoration Act of 1993 need a legislative fix? Some Democratic Congressmen and religious freedom advocates believe so, which has prompted a renewed attempt to resolve problems they believe have been created by conservative court rulings and Trump administration actions.

Other religious leaders, however, believe the proposed fix is merely an attempt to stifle the voices and religious convictions of conservatives. And still others see the proposed fix as either premature or unnecessary.

On Feb. 25, four Congressmen reintroduced legislation called the “Do No Harm Act.” The bill previously was introduced in 2016 and 2019 but did not advance. Adding to the gravitas of the moment: As a senator, Vice President Kamala Harris was a sponsor of a Senate version of the Do No Harm Act.

Some religious conservatives link her previous sponsorship and current position as indication of a coming threat to their own free exercise of religion.

Framing the need

The Human Rights Campaign is among nearly 100 civil rights, LGBTQ, health, labor and faith groups that have endorsed this year’s iteration of the Do No Harm Act.

The legislation “would amend RFRA in order to restore the original intent … by specifically exempting areas of law where RFRA has been used to bypass federal protections,” the HRC says on its website.

Rachel Laser, president of Americans United for Separation of Church and State, echoed that explanation: “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. This exploitation of religious freedom especially harms LGBTQ people, women, religious minorities and the nonreligious by undermining their civil rights and equality.”

On the other hand, the Southern Baptist Convention’s Ethics and Religious Liberty Commission has made opposition to the Do No Harm Act one of its legislative priorities for 2021.

“This bill, if passed into law, would weaken religious freedom protections for millions of Americans. The ERLC opposes the Do No Harm Act because it would do significant harm to the landscape of legal protections foundational to America’s first freedom,” the agency says on its website.

Kenneth Craycraft, the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology, wrote a dire warning in the Catholic journal First Things. He called the Do No Harm Act a “comprehensive bill that would effectively render RFRA null and void.”

In the middle

Notably missing from the current debate and flurry of news releases sent out last week was Baptist Joint Committee for Religious Liberty — the Washington, D.C.-based organization that chaired the RFRA coalition back in 1993.

In previous years when the Do No Harm Act was introduced, BJC did not join the coalition promoting or opposing the legislation. It has steadfastly promoted RFRA as a good piece of legislation that was passed with diverse and overwhelming support.

“While BJC does not endorse the Do No Harm Act, we acknowledge concerns about RFRA’s broad sweep,” said BJC General Counsel Holly Hollman. “By design, RFRA applies to any religious claim and leaves it to courts to balance the burden on religious exercise and the government’s interest. It does not provide an automatic win for religious claims, and it is not surprising that people will disagree with some outcomes.

“The statute’s application to Hobby Lobby, a large, for-profit private company, led many to abandon RFRA and fear additional harms, some of which were described in Justice Ginsburg’s dissenting opinion. For BJC, a greater concern than the application of RFRA to a private, for-profit corporation is that the court was too deferential in finding that the law at issue posed a substantial burden on the owners of Hobby Lobby.”

A perceived threat from the courts

Advocates of the Do No Harm Act see in several court rulings a threat to RFRA, which says federal government may not “substantially burden” a person’s religious exercise unless doing so is the least restrictive means of furthering a compelling governmental interest.

RFRA itself was the product of concerns about court rulings interpreting the First Amendment’s protections for religious liberty.

A BJC booklet celebrating the 20th anniversary of RFRA explains: “The story of RFRA began in 1990, when the U.S. Supreme Court shocked many religious and civil liberty advocates by announcing in Employment Division v. Smith that the First Amendment is not violated when neutral, generally applicable laws conflict with religious practices. This less demanding standard previously had applied only in specific contexts such as prisons and the military.”

Writing in the journal Regulatory Review, Katherine McKeen analyzes the current landscape and writes: “So far, federal courts’ application of RFRA appears to favor conservative religious causes, such as corporate exemptions from contraceptive coverage, over more progressive ones, such as pro-immigrant advocacy. But RFRA’s origins and statutory language give no indication that it should be construed in this way.”

In other words, concerns about the effectiveness of RFRA may be more about its application and interpretation than about the law itself.

“Despite its broad language and influence, RFRA seems to have been used most effectively by conservative Christian groups seeking exemptions from laws intended to protect reproductive health and LGBTQ+ civil rights,” McKeen notes.

Supreme Court cases

Three Supreme Court cases stand out among the legal threats most often cited as evidence that RFRA needs a booster shot.

In 2014, the court ruled in Burwell v. Hobby Lobby that RFRA allows a business to deny employees health insurance for contraceptives on religious grounds, even though such coverage was mandated by the Affordable Care Act.

In a dissent to the majority ruling, Justice Ruth Bader Ginsburg expressed concern that Hobby Lobby could lead to RFRA being used to sanction discrimination against minority groups. Two years later, in 2016, this reality came to pass in a decision by a federal judge in Michigan. In EEOC v. R.G. & G.R. Harris Funeral Homes, the judge ruled in favor of a funeral home that fired a transgender employee due to her gender identity. The funeral home claimed RFRA protection of its deeply held religious beliefs as a defense against the sex discrimination suit. The judge cited Hobby Lobby in his decision allowing such discrimination.

That lower court ruling eventually was overturned by the Sixth U.S. Circuit Court of Appeals, but the initial ruling struck fear in the LGBTQ community and its allies.

More recently, in a dissent to the Supreme Court ruling in Bostock v. Clayton County, Justice Samuel Alito described RFRA as a “super statute” that may displace the use of federal employment laws to protect gay and transgender workers.

The Trump influence

When introducing the Do No Harm Act again last week, the four Democratic Congresssmen cited “the Trump administration’s chronic misuse of RFRA to override anti-discrimination protections in federally funded programs.” They specifically cited the U.S. Department of Health and Human Services allowing South Carolina to waive federal religious nondiscrimination requirements for federally funded child foster care agencies.

The four Democratic Congresssmen cited “the Trump administration’s chronic misuse of RFRA to override anti-discrimination protections in federally funded programs.”

Several groups filed lawsuits on RFRA grounds to challenge President Donald Trump’s controversial executive order barring immigration from certain Muslim-majority countries.

The Supreme Court upheld the ban in the 2018 case Trump v. Hawaii.

That sent a chill through pro-immigrant groups, who joined LGBTQ advocates in expressing fear that RFRA was on its way to being reinterpreted by the court to favor religious conservatives in their desired discrimination.

Yet at the same time, some religious communities in the new pro-immigrant sanctuary movement have claimed protection from prosecution under RFRA. In November 2019, a federal jury said RFRA protected a volunteer’s right to provide migrants near the border with water, food and other aid as a matter of conscience.

Also, in February 2020, a court vacated the convictions of four activists who had been found guilty of violating federal rules by leaving jugs of water and cans of beans at the border for immigrants to find.

Again, writing in Regulatory Review, McKeen identifies “the continuing importance of clarifying how courts assess a ‘substantial burden’ on religious exercise. One argument is that the (Supreme) Court has failed to define this standard — creating room for conservative causes to be favored under RFRA over progressive causes, without adequate explanation.”

What the Do No Harm Act says

Into this context, the Do No Harm Act now makes its third appearance. In sum, this legislation says RFRA “should not be interpreted to authorize an exemption from generally applicable law if the exemption would impose the religious views, habits or practices of one party upon another.”

Further, it says RFRA should not grant exemptions that “impose meaningful harm, including dignitary harm, on a third party” or that “permit discrimination against other persons, including persons who do not belong to the religion or adhere to the beliefs of those to whom the exemption is given.”

The language of the act is sparse, and both conservative and moderate critics say that leaves plenty of room for abuse.

The act also stipulates protections that cannot be undone by RFRA when they relate to the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family Medical Leave Act, the Violence Against Women Act, equal access to housing in HUD programs, and certain cases involving sexual orientation or gender identity.

The language of the act is sparse, and both conservative and moderate critics say that leaves plenty of room for abuse. In their view, the proposed fix for RFRA is no fix at all but instead weakens the 1993 legislation.

Conservatives’ fears

If progressives are fearful of court and White House actions favoring conservatives’ perceived discriminatory tendencies, the same can be said in reverse. Writing in First Things, Craycraft warns that the purpose of the Do No Harm Act “is essentially to remove the protections that RFRA provides religious believers without actually repealing RFRA.”

The purpose of the bill’s language “is to force a business to finance abortion, contraceptive, or gender transition surgery for its employees over the business owner’s religious objection,” he wrote. And it would force artists and artisans (such as wedding cake bakers) “to create art that endorses — or even to participate in — same-sex weddings or other events to which they have religious objections.”

And finally, he warns, the Do No Harm Act “could reasonably be read to require a Catholic church to ordain a woman as a priest, for example, under laws that prohibit discrimination on the basis of sex. Or it could be used to prevent a Catholic school from firing a teacher who publicly advocates moral positions, or engages in activities, that are contrary to the teaching of the church.”

For Craycraft and other conservatives, this threat is real because of their suspicions of the Biden administration, which is especially fueled by disdain for Vice President Harris.

If passed and signed into law, “President Biden’s enforcement of these and other religiously discriminatory laws will be vigorously effected (sic) by his vice president, Kamala Harris, and his Secretary of Health and Human Services, Xavier Becerra. As a U.S. senator, Harris championed both acts. Becerra’s record as attorney general of California prosecuting persons and groups on the basis of their religious opinions is well established.”

What is religious liberty anyway?

And in this, the debate highlights the starkly different definition of “religious liberty” advances by America’s competing interests today.

A traditional understanding of religious liberty emphasizes both the right to free exercise of religious beliefs and the prohibition on favoring one religion over any other. In the modern era, conservatives have tended to emphasize the right to exercise their own religious convictions — such as against same-sex marriage, against transgender identity, against abortion, and for private education — above the demand to allow others to exercise opposing views.

This rift is succinctly illustrated in the high-profile court case known as Masterpiece Cakeshop v. Colorado Civil Rights Commission, which asked whether a cake shop that is open to the public can refuse to provide a cake for a same-sex wedding. Conservatives believe RFRA should shield the evangelical Christian owners from having to do business with a gay couple; progressives believe denying service based on a customer’s sexual orientation is discriminatory in the same way as denying service based on a customer’s race.

Some Democratic lawmakers believe further interpretation of RFRA should not be left to a conservative majority on the Supreme Court to define.

The Masterpiece Cakeshop case did not neatly resolve this question because the Supreme Court ruled on a narrow part of the lower court ruling, not on the larger religious liberty issue.

For this and other reasons, some Democratic lawmakers believe further interpretation of RFRA should not be left to a conservative majority on the Supreme Court to define. The threat is prospective as much as based in already-decided cases.

The four representatives — Robert “Bobby” Scott (Va.), Steve Cohen (Tenn.), Jamie Raskin (Md.), and Mary Gay Scanlon (Pa.) — said their proposed legislation “comes amid a sharp rise in the misapplication of RFRA to justify discrimination in a wide range of scenarios.”

Among the faith-based groups supporting their bill are 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 (USA); American Baptist Home Mission Society; Disciples of Christ Center for Public Witness; Metropolitan Community Churches; Muslim Advocates; and the National Council of Churches.