It’s time to fix an important religious freedom law
Nov. 16, 1993, was an unusually warm and sunny late fall day in Washington, D.C. I remember it well because I was standing on the grounds of the White House watching President Bill Clinton sign into law the Religious Freedom Restoration Act (RFRA).
It was a euphoric moment for those of us who advocate for religious freedom. RFRA had been drafted in response to a 1990 decision by the Supreme Court that many felt took an unnecessarily rigid, confining view of the First Amendment’s religious freedom protections — a view that would be particularly harmful to religious minorities.
In response, an unprecedented coalition formed to pass RFRA to protect the free exercise of religion. It consisted of groups on the right and left and every place in between. Some were religious organizations, others secular. They disagreed on a lot, but they came together to pass this legislation.
Through my work at Americans United for Separation of Church and State, I had a front-row seat as the bill was being drafted. One thing was clear: RFRA was intended to protect religious freedom, not open the door to discrimination. In the 1990 ruling, the high court blithely tossed aside a legal standard it had used for decades when considering religious freedom claims, a standard that protected religious exercise from too much government interference. RFRA sought to restore the previous standard into federal law; the intent was to bring back something we had lost due to a misguided court ruling, not create any new rights.
Had the bill been intended as a vehicle for using religion to take away rights or subjecting people to harm in the name of religious belief, the coalition backing it would have quickly collapsed.
Our goals were simple, yet noble: We wanted to protect Native Americans whose traditional practices were all too often pushed aside by the government. We wanted to ensure people in federal prisons and immigration detention centers could attend worship services or keep religious texts. We wanted to enable Sikhs and Muslims serving in the military or working as emergency responders to be able to wear beards or articles of their faith.
For several years, RFRA did what it was supposed to. But now, 28 years later, we’ve gone far off course, and RFRA has been interpreted in ways that many of its original backers would never have supported.
RFRA and what is falsely being called “religious freedom” is being cited as justification for bosses to deny birth control access to employees. It has been used by federally funded organizations to discriminate against employees who don’t pass a religious litmus test. It has been used to allow taxpayer-funded foster care agencies to turn away potential parents because they are the “wrong” religion or LGBTQ, taking away opportunities for children in care to find loving homes. It has been pressed into service to override a host of rights for LGBTQ people, women, religious minorities, the nonreligious and others.
This perversion of RFRA cannot continue — countless people are being harmed. The law was never meant to confer second-class status on anyone or allow religion to be used as a license to discriminate. And it’s particularly dangerous because it is now being interpreted as a “super-law” that outweighs other laws intended to respect and protect people’s rights. It’s time to get RFRA back to its original intent. A bill pending in Congress, the Do No Harm Act, would do just that.
The Do No Harm Act will preserve protections for religious freedom while making it clear that RFRA can’t be used to trump laws that protect us, like those prohibiting discrimination, requiring equal treatment and safeguarding health care. The Do No Harm Act would also ensure that government officials and employees, and government-funded social-service providers, can’t use RFRA to refuse to provide services to anyone. This is just simple common sense. After all, everyone deserves to be treated equally by our government.
Religious freedom is a vital, cherished principle of the American people. Thanks to the misinterpretation of RFRA, it has been pressed into the harmful service of discrimination. This must end.
Those of us who visited the White House that warm fall day in 1993 were full of optimism. In the space of three years, we had helped to pass major legislation to protect minority religious expression. Unfortunately, our work has been marred by religious extremists, courts and some government officials, who took this well-intentioned law and twisted it beyond recognition into something it was never meant to be.
It’s time to recapture the spirit of hope that birthed RFRA by getting the law back to its original purpose. RFRA must once again become a shield that protects religious freedom, not a sword that lashes out and causes harm.
There is an easy way to do that: Pass the Do No Harm Act.
Rob Boston is a senior adviser at Americans United for Separation of Church and State and the editor of “Church & State” magazine.
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