Left lines up behind 'Do No Harm Act' that would alter religious liberty law

by Gregory Tomlin, |
U.S. House of Representatives member Joseph P. Kennedy III (L) is seen with a congressional delegation in Tokyo in 2014. REUTERS/Franck Robichon/Pool (JAPAN - Tags: POLITICS) | EUTERS/Franck Robichon/Pool

WASHINGTON (Christian Examiner) – Rep. Joseph Kennedy III [D-Mass.] has proposed a bill that would amend the Religious Freedom Restoration Act (RFRA) to prevent government employees or federal contractors from making claims of religious conscience to avoid supporting practices such as same-sex marriage or providing housing to members of the LGBT community.

The bill, the "Do No Harm Act," co-authored by Rep. Bobby Scott [D-Va.], purports to return the RFRA to its original intent of protecting individual belief by drawing into focus the constitutional and statutory rights of others. In other words, the bill claims to prevent infringement on civil liberties by confining religious liberty to actual acts of religious devotion and worship outside of the sphere of government.

"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 tenants 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," Kennedy said in a statement.

Scott said the RFRA has been "misconstrued" to allow "the sincerely-held religious beliefs of one person to trump the civil rights of others. Civil rights are a compelling government interest, and we cannot allow so-called 'religious freedom,' 'religious liberty' or 'faith-based initiatives' to invalidate the very laws designed to correct generations of injustices on minorities."

The problem with the bill, critics charge, is that the definition of "minority" is constantly evolving in the government and it would leave it up to the government to adjudicate what is and is not true religious belief, especially on evolving "minority" classes recently created by the government – those such as "gender identity" and "sexual orientation."

It could also create problems in the area of health care where, for instance, an employer such as Hobby Lobby has refused on religious grounds to cover abortifacients in its health insurance plan or when a Catholic hospital refuses to provide a birth control procedure, such as abortion or tubal ligation. The U.S. Supreme Court has already ruled in favor of Hobby Lobby and another court refused to hear a case brought against Catholic hospitals by the ACLU.

According to Kennedy, the bill would ensure work place laws regarding compensation and wages, children's welfare, and acts of health care are not invalidated by competing claims of religious belief.

So far, more than 40 left-leaning religious, atheist and social justice groups have lined up behind Kennedy's bill. Among those are Americans United for Separation of Church and State, Freedom from Religion Foundation, NAACP, Center for American Progress, ACLU, AFL-CIO, NARAL Pro-Choice America, Human Rights Campaign, Lambda Legal, National Center for Lesbian Rights, and Planned Parenthood.

Dana Singiser, vice president of public policy and government affairs for the Planned Parenthood Federation of America, said Kennedy's bill would curtail "wrongheaded efforts to discriminate."

"The Religious Freedom Restoration Act (RFRA), a federal law initially passed to protect the exercise of religious beliefs, is too often used to undermine and abuse individuals' rights, including denying women access to birth control."

Barry Lynn, executive director of Americans United, said the 1993 RFRA, which he helped pass, had been "misconstrued and exploited" by conservatives to "justify discrimination and to deny others their rights."

"That is why today we support the Do No Harm Act because it preserves RFRA's power to protect religious liberty but also clarifies that RFRA may not be used to harm others," Lynn said. He added that Hobby Lobby's use of its owners' religious beliefs to deny abortifacients to employees in its health plan is a "notorious example" of how the RFRA had been misused.

Importantly, the RFRA of 1993 does not define what exactly constitutes a claim of religious conscience. It, however, provides a mechanism by which claims of religious conscience can be adjudicated in the courts – by the test of "compelling interest."

RFRA claims "government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." In other words, laws generally applied to the populace may still be challenged on the basis of religious liberty if they oppress religious conscience – such as in the case of Hobby Lobby.

Kennedy's bill would reinstate the language of "general applicability," which could mean – in the eyes of conservatives – that it would force the subservience of minority religious belief to the will of the majority.

RFRA insisted on a test of "compelling government interest" to determine if laws violated religious liberty. In the case of Hobby Lobby, the government argued it had such an interest in providing abortion-inducing drugs to women through private health insurers paid by private employers.

Kennedy's bill also creates a test of "dignitary harm." That is, if a religious belief conflicts with the U.S. government's definition of human dignity – an echo of the U.S. Supreme Court's decision in Obergefell v. Hodges which legalized same-sex marriage nationwide – it will not stand in the face of the law.

That is the opinion of the atheist Freedom from Religion Foundation, which has argued for the repeal of RFRA since the Hobby Lobby case. According to the group RFRA is a "super-statute" that amends all other federal laws "meant to protect citizens from unfair treatment."

"The Do No Harm Act would limit which laws RFRA applies to. For instance, RFRA would no longer allow believers to be exempt from the Civil Rights Act, the Americans with Disabilities Act, the Violence Against Women Act, or laws that require coverage for any health care item. The bill, if enacted, could undo some of the damage caused by the Hobby Lobby decision," the group's statement said.

"Believers" have never been exempt from the Civil Rights Act, the Americans with Disabilities Act, or the Violence Against Women Act, as the group alleges, because those laws were based on race and sex. President Obama, however, added special protections for gays, lesbians, bisexuals and transgenders to the Civil Rights Act of 1964 by executive order in 2014. The president of the United States is not given authority to amend law in the U.S. Constitution.