By Nicole Kennedy

When religiously grounded beliefs inspire us to take actions that conflict with other interests and rights, how should the government respond? For over two decades, our country has relied on the Religious Freedom Restoration Act (RFRA) to balance religious freedom with other government interests, such as LGBT and reproductive rights. On June 25, 2019, the House Committee on Education and Labor held a hearing about a new bill, the Do No Harm Act, that would significantly undermine RFRA and erode religious freedom protections. This draft bill has sparked strong reactions from both sides of the aisle, reigniting the religious freedom debate.

The passage of RFRA stemmed from widespread outrage over a U.S. Supreme Court decision that had weakened the constitutional protection of religious freedom. In the 1990 case Employment Division v. Smith, the Supreme Court held that under the Free Exercise Clause of the First Amendment, a state could deny employment compensation to Native American employees who had used Peyote, an illegal drug, in a religious ceremony, because the law applied to everyone the same and had not aimed to curtail religious exercise. This outcome foreshadowed reduced protection for religious freedom in the courts. Three years later, Congress passed RFRA in an effort to rebalance the legal scales to protect religious freedom.

RFRA is a neutral balancing test that requires courts to weigh religious freedom with the government’s interest in protecting other rights and come to a fair determination. Due to its neutrality and the opportunity it provides for a fair hearing, RFRA gained immediate support from the Coalition for the Free Exercise of Religion, one of the “broadest coalitions in recent political history,” consisting of Christians, Muslims, Sikhs, Humanists, and secular civil liberties organizations. RFRA was enacted in 1993 by a unanimous House and nearly unanimous Senate, and President Bill Clinton proudly signed it into law.

How does RFRA work? First, a court analyzes whether the federal government has substantially burdened a person’s or organization’s faith. If the court finds that there was a substantial burden, it then engages in a two-part analysis. First, is the burden in furtherance of a compelling governmental interest? Second, has the government used the least restrictive means of furthering that interest? Each side has the opportunity to argue its position and then the court makes a fair determination. RFRA is considered a “super law” because it applies to all federal actions except where another federal law specifically says RFRA does not apply. Because there is and has been no law that supersedes RFRA, lawmakers and regulators take its balancing requirement into account when making policy. In addition to the federal RFRA law, 21 states have enacted their own RFRA statutes.

In 2013, RFRA gained national attention with the case Burwell v. Hobby Lobby. Under the Affordable Care Act, the Obama administration required employers to cover contraceptives in their health insurance plans. The Green family, founders of Hobby Lobby and devout Evangelical Christians, refused to provide emergency contraception to their employees because of their pro-life beliefs. Under the RFRA balancing test, the Supreme Court found that the Greens’ policy was motivated by their “sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point.” Thus, the Court affirmed Hobby Lobby’s policy and allowed it and other closely-held corporations to limit their coverage of contraceptives based on sincere religious beliefs.

In the wake of the Hobby Lobby decision, some liberals have grown concerned that RFRA could allow religious organizations to “cite faith in discriminating against employees.” This attitude has led directly to backlash; in a series of states, efforts to adopt or modify state RFRAs were met by strong opposition from LGBT rights groups who feared that such religious freedom laws would enable anti-gay discrimination. In 2017, Rep. Joseph Kennedy III (D-MA) introduced into the House of Representatives the original Do No Harm Act, which was not enacted.

In the current Congress, in February 2019, Rep. Kennedy, along with Rep. Bobby Scott (D-VA) and Senator Kamala Harris (D-CA), reintroduced the Do No Harm Act, which would sharply curtail RFRA’s religious freedom protections. During the June 2019 Senate hearing on the proposed Act, Rep. Kennedy claimed that “RFRA has morphed from a shield of protection to a sword of infringement.” To correct this alleged misuse, the Do No Harm Act would, for the first time, limit the protective scope of RFRA. With respect to federal laws and regulations related to LGBT inclusion, healthcare, government services, and contraceptives, religious persons and organizations could not look to RFRA for a possible religious freedom defense. There would no longer be a balancing test; government policies would trump these contrary religious practices every time.

The Do No Harm Act has gained support among groups such as Americans United for Separation of Church and State, the American Civil Liberties Union, and Planned Parenthood. Some religious organizations, such as Catholics for Choice, Muslim Advocates, and the National Council of Jewish Women have also endorsed the Act. Senator Harris, who is running for President in 2020, believes that the Do No Harm Act is consistent with religious liberty: “The freedom to worship is one of our nation’s most fundamental rights. That first Amendment guarantee should never be used to undermine other American’s civil rights or subject them to discrimination on the basis of race, gender, sexual orientation, or gender identity.”

Indeed, for many Americans, the religious freedom debate evokes thoughts of “birth control, baking, and bathrooms.” However, the RFRA balancing test has also been used to defend the religious liberty of minority groups. In 2017, a Sikh soldier successfully used RFRA to demonstrate that the Pentagon’s ban on facial hair substantially burdened his religion. In other instances, the RFRA balancing test has favored the government’s compelling interest in preventing discrimination; in 2018, an appellate court used RFRA to prohibit the Christian owner of a funeral home from terminating the employment of a transgender employee. In these cases and others, courts have effectively used RFRA to strike a neutral balance between allowing religious exercise and upholding government policies that restrict religious freedom for the sake of other compelling interests.

Both Republicans and Democrats have proposed legislation to curtail the scope of RFRA so that the government would not have to survive the RFRA tests. In response to these efforts, numerous religious organizations have pressed Congress not to allow any modification of the scope of RFRA. Nathan Diament of Orthodox Union, a coalition of Orthodox Jewish believers, affirmed the Court’s use of RFRA in its Hobby Lobby decision: “Even when the government seeks to implement valuable policy goals—it must do so without trampling upon the conscientious beliefs of American citizens.” Additionally, groups such as IRFA, the Council for Christian Colleges & Universities, and the Church of Jesus Christ of Latter-Day Saints have endorsed the Fairness for All bill, which aims to provide legal protection for LGBT individuals and also protect religious freedom.

In its current form, RFRA is not a “get out of jail free card” that ensures protection for religious groups. Instead, RFRA provides the opportunity to testify about one’s sincere religious beliefs before a court and seek protection for those beliefs. Restricting RFRA’s scope would substantially curtail religious freedom protection by denying religious organizations the opportunity to defend their traditional moral views and practices about human sexuality, marriage, and reproductive health. As Thomas Jipping of the Heritage Foundation wrote in a Washington Times op-ed, religious freedom “has long been understood to cover more than mere speech and worship ceremonies.” For people of faith and the organizations they operate, religion is a guiding light that informs every decision they make.

In the words of Matt Sharp, an Alliance Defending Freedom attorney who testified at the recent House hearing, “Uniformity of thought has never been an American virtue. Toleration, diversity and freedom of thought — though imperfectly executed throughout our history — are the values that have made us a unique and thriving country. For this American experiment to continue, we must agree that disagreement is not discrimination.” Indeed, as our country becomes increasingly pluralistic, it is more important than ever that we can resolve our differences in a civil manner. RFRA offers just that: an invitation to come together in dialogue, express our deeply-held beliefs, and reach a compromise that respects the religious diversity of our society.

Nicole Kennedy is a Juris Doctor candidate at the University of California, Irvine, and has contributed to IRFA, Shared Justice, and Sacred Sector as a Legal Fellow.