U.S. Reps. Joseph P. Kennedy III (DMass.) and Robert C. "Bobby" Scott (D-Va.) on May 18 introduced legislation that would counteract some of the harmful effects of the federal Religious Freedom Restoration Act (RFRA) and restore it to its original intent.
The "Do No Harm Act," (H.R. 5272) would preserve RFRA's power to protect religious liberty but also clarify that it may not be used to harm others.
Passed in 1993 with overwhelming bipartisan support, RFRA was intended to protect religious minorities from government overreach in the wake of the U.S. Supreme Court's 1990 decision in Employment Division v. Smith.
In Smith, the court held that neutral and generally applicable laws do not violate the Free Exercise Clause of the First Amendment. Thus, the state of Oregon could deny unemployment benefits for two Native American men who were fired for using an illegal substance, peyote, even though they used it as part of a religious ritual. Smith changed the rules for how religious freedom cases would be judged and effectively lessened constitutional protections for rights of conscience.
Leading up to RFRA's passage, religious and public policy groups on all points of the political spectrum supporting RFRA (including Americans United). Members of Congress primarily focused on how best to protect minority religious practice from government intervention, such as ensuring Jewish children could wear yarmulkes in public schools or Muslim firefighters could wear beards.
But since then, RFRA has been used in ways that harm and deny the rights of others. At first, landlords who refused to rent apartments to unmarried couples on religious grounds sued to obtain exemptions from laws prohibiting housing discrimination. Since then, individuals, religiously affiliated federal contractors and even for-profit businesses have attempted to exploit RFRA to trump non-discrimination, health and safety laws.
The most well-known example is Hobby Lobby, a national craft store chain with tens of thousands of employees that used RFRA to refuse to provide its workers insurance coverage for contraception.
"When Congress passed RFRA in 1993, the goal was to protect religious freedom for minority groups," Scott said in a...