The bill that could change religious freedom as you know it

Some religious freedom advocates believe the Do No Harm Act would do more harm than good

Amid growing conflict between religious liberty and other civil rights, a diverse coalition of pastors, policymakers and advocacy groups is calling for an overhaul of America’s most notable religious freedom law outside of the Constitution.

The group has asked the incoming Biden administration to restore the Religious Freedom Restoration Act to its “original intent” by passing a controversial bill that would keep religious organizations from using it to seek faith-based exemptions from some health care, funding and nondiscrimination laws.

The Do No Harm Act “would preserve the law’s power to protect religious freedom, but also clarify that it can’t be used to cause harm,” said Maggie Garrett, vice president for public policy for Americans United for Separation of Church and State.

But the bill’s opponents object to this characterization, as well as its name.

By limiting the reach of religious freedom protections, the Do No Harm Act would make it harder for many people of faith to operate businesses, launch charities or share their beliefs in the public square, said Doug Laycock, a professor of law and religious studies at the University of Virginia.

“This bill would strip the heart out” of religious freedom law, he said.

If the Do No Harm Act was enacted, the country would suffer, said Matt Sharp, who directs the Center for Legislative Advocacy at the Alliance Defending Freedom, during a House committee hearing on the Religious Freedom Restoration Act in June 2019.

“Religion’s vast benefit to the whole of American society will only last so long as people of faith maintain the freedom to exercise religion, not just in their home or place of worship, but at work and in a wider community,” he said.

Balancing test

The Religious Freedom Restoration Act was passed in response to a contentious Supreme Court case involving the Constitution’s religious exercise protections.

In that case, Employment Division v. Smith, the justices decided that religious institutions and individuals could no longer use the First Amendment to seek exemptions from “neutral and generally applicable” laws. Moving forward, it could only be used to challenge policies that seemed to specifically target religious practices, Laycock said.

Religious freedom advocates worried that the ruling would cause significant problems for people of faith, who often lack the political power needed to force legislative change. They believed religious organizations should have a right to seek exemptions from even neutral laws, since the government can often achieve its policy goals without full compliance.

Legal experts, religious leaders and others who disliked the Smith ruling banded together in support of the Religious Freedom Restoration Act, which restored faith groups’ legal options. The law, which came three votes short of passing Congress unanimously in 1993, enables religious institutions and individuals to challenge any federal law that “substantially burden(s)” their practices or beliefs.

The Religious Freedom Restoration Act “was designed to be a shield to protect religion” from unnecessary interference, Garrett said.

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Although the law offers strong religious freedom protections, it does not guarantee that religion always wins, Sharp said. Instead, it gives both people of faith and government officials a chance to plead their case before the court.

The law “protects the process for balancing the government’s interest with individual freedom,” he said.

The fact that the Religious Freedom Restoration Act creates a balancing test rather than an unfair advantage for religion helps explain why such a wide variety of community leaders and elected officials supported its passage, said Laycock, who testified in support of the law when it was before Congress.

“We were all working together on it. It was a secular-religious, left-right coalition,” he said. The Church of Jesus Christ of Latter-day Saints and ACLU “were arm-in-arm.”

The Do No Harm Act

Over the nearly three decades since the Religious Freedom Restoration Act was passed, the law — and the concept of religious freedom in general — has become much more controversial. Many civil rights advocates dislike that it can be used to challenge policies that protect members of the LGBTQ community or promote access to birth control or abortion, Laycock said.

“The split over religious liberty has been growing since the late 1990s. It’s driven by all the sexual issues,” he said.

During the past four years, the Trump administration used the Religious Freedom Restoration Act to justify dozens of updates to federal regulations, Garrett said. She believes that the law is now better known for protecting religious objectors to same-sex marriage and birth control than vulnerable members of minority faiths.

The Trump administration’s approach to religious freedom “was so aggressive,” she said. “They changed so many existing policies” and thereby unintentionally helped supporters of the Do No Harm Act make the case for its approach.

Under the proposed bill, faith groups and federal officials would no longer be able to use the Religious Freedom Restoration Act to seek or justify faith-based exemptions to civil rights laws. The policy would also no longer apply to various rules controlling health care coverage and government contracts and grants.

The act would help ensure that religious freedom law is associated with protecting faith groups’ right to worship, rather than contentious cases involving LGBTQ rights or birth control, Garrett said.

“The bill is focused on eliminating those cases where religious freedom is misused to cause harm,” such as when the Trump administration cited the Religious Freedom Restoration Act to explain why it would allow some government contractors to refuse to hire members of the LGBTQ community, she said.

Although Laycock agrees that the Religious Freedom Restoration Act’s reputation has taken a hit in recent years, he’s concerned with the Do No Harm Act’s proposed solution.

Efforts to prevent religious freedom protections from causing harm could eventually undermine even the law’s most uncontroversial uses, he said, noting that “anybody can figure out how to argue that whatever they don’t like is causing them harm.”

Laycock also believes the bill overlooks situations in which religious freedom rights potentially should trump competing nondiscrimination protections. If a Christian baker is being forced to choose between serving same-sex couples and refusing all wedding-related business, he should have an opportunity to fight for a faith-based exemption in court, he said.

“In some gay rights cases, the harm on the religious side is much greater than the harm on the gay rights side,” Laycock said.

Conflict to come

Rather than try to limit the Religious Freedom Restoration Act’s application, policymakers and advocacy groups should focus on correcting problematic assumptions about how it’s typically used, Laycock said.

The vast majority of lawsuits and policy actions tied to the law have nothing to do with culture war issues, he noted. Today, it’s primarily a resource for minority faith groups, just as it was when it was first passed.

Cases tied to gay rights and health care “get all the publicity, but they’re a tiny fraction of the cases,” Laycock said.

Garrett confirmed Laycock’s assessment, but said that, by focusing on the low quantity of controversial religious freedom cases, he and other opponents of the Do No Harm Act are missing the point.

“Even if there are fewer cases that have gone to court on this, their impact is huge. The way it’s affecting LGBTQ people, women and religious minorities is really significant,” she said.

Policymakers shouldn’t wait for an uptick in cases to take action, Garrett added.

In addition to lobbying the Biden administration to support the Do No Harm Act, the bill’s supporters plan to spend the year ahead pushing for lawmakers to move the legislation forward.

“There’s progress we need to make in the House,” like making it through a hearing or a vote, Garrett said. “Then, it’ll be a process to build more support and understanding of the bill in the Senate.”

Laycock doubts the bill will get a serious hearing in the Senate until Democrats have the 60 votes needed to overcome a potential filibuster. By that time, the Supreme Court may have heeded calls to adjust or overturn the ruling that inspired policymakers to expand religious freedom protections.

However, Laycock still sees the Do No Harm Act as a call to action of sorts. It’s clear that supporters of the Religious Freedom Restoration Act need to do a better job explaining why the law is valuable and building relationships with those who criticize it, he said.

Until they do, “we’ll keep seeing bills like this every year,” Laycock said.