Senate Democrats have introduced a bill to limit the scope of the Religious Freedom Restoration Act (RFRA).
Passed in 1993, the RFRA was popular among both parties and was intended to protect the rights of minority religions. But Democrats now say the RFRA is being interpreted to restrict the rights of others.
“While our country was founded on the value of religious liberty, that freedom cannot come at the expense of others’ civil rights,” Senator Mazie Hirono (D-HI) said in a statement.
The new bill, called the Do No Harm Act, says that religious freedom claims under the RFRA cannot trump civil rights laws, employment law, protections against child abuse, or access to health care.
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The last one may be a direct nod to the Supreme Court case Burwell v. Hobby Lobby, where Court ruled that Hobby Lobby could have a religious objection under the RFRA to providing contraception to their employees.
The senators are also concerned about how the RFRA could be used in cases against anti-discrimination legislation, like bakers who say that selling cakes to same-sex couples violates their religious freedom.
The RFRA was passed after public outrage that followed the 1993 Supreme Court decision Employment Division v. Smith. In that case, two members of the Native American Church tested positive for the active ingredient in peyote and were fired. They tried to get unemployment, but were denied because they were fired for drug use.
Peyote, though, is used in religious ceremonies in the Native American Church, so the church members sued the state of Oregon and argued that their religious freedom was violated.
Justice Antonin Scalia wrote in the majority opinion that allowing a religious exemption to Oregon’s drug laws “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.”
That year, Senate Democrats Chuck Schumer and Ted Kennedy introduced the RFRA and it passed. But now Scalia’s argument appears prescient.
RFRA “has been contorted in recent years to defend discriminatory practices against LGBTQ individuals and women seeking access to reproductive health services. The Do No Harm Act would help put an end to misuse of the act and ensure that long-standing anti-discrimination protections in the law are not eroded,” said Senator Patrick Leahy (D-VT).
The Do Not Harm Act does not have much chance of passing the Republican-controlled Senate. The point of the bill is to stake out the Democratic position on the issue.
Conservatives say that the bill is both unnecessary and harmful.
“To the extent an accommodation would undermine an important public interest, it is already not required by the act,” said Notre Dame law professor Richard Garnett. “In my view, the Do No Harm Act reflects a mistaken view that religious freedom should only be granted when it is costless. The reality is sometimes the public has an interest in providing exemptions to religious claimants, even if it is a bit inconvenient.”