Prominent Senate Democrats introduced a bill Tuesday that would amend the 25-year-old Religious Freedom Restoration Act to prevent the law from being used to justify discrimination against people, including gay, lesbian and transgender citizens.
Though it is unlikely to pass in the Republican-controlled Congress, the Democrats’ bill, called the Do No Harm Act, shows the party’s stance toward a thorny question in the hands of the Supreme Court — how to choose when both LGBT people and conservative Christians feel their civil rights are at risk.
The Religious Freedom Restoration Act, commonly referred to as RFRA, was popular among lawmakers in both parties when it was enacted in 1993. Initially, it was usually referenced in cases involving practitioners of minority religions, such as Sikhs and Muslims seeking the right to wear their religious headgear in their driver’s license photos. But in recent years, it has become a favorite law among conservative Christians, who say that it protects their rights to abstain from practices they disavow.
Hobby Lobby, the craft chain owned by an evangelical Christian family, successfully argued before the Supreme Court that the government could not compel it to provide contraception coverage for its employees, because the family’s religious beliefs condemn certain types of contraception. The court is considering the case of a Christian cake baker, who says he should have the religious freedom to refuse to make a cake for a gay couple’s wedding. (Florists, photographers and an Indiana pizza shop have made similar claims.)
The Democrats’ bill would amend RFRA to say that it does not protect the religious liberty of one person when the civil rights of another would be impinged. “While our country was founded on the value of religious liberty, that freedom cannot come at the expense of others’ civil rights,” Sen. Mazie Hirono (D-Hawaii) said in a statement.
A similar bill was introduced in the House in 2016 and 2017. The sponsors of the Senate bill include Hirono and Sens. Richard J. Durbin (Ill.), Dianne Feinstein (Calif.), Kirsten Gillibrand (N.Y.), Kamala D. Harris (Calif.), Patrick J. Leahy (Vt.), Edward J. Markey (Mass.), Jeff Merkley (Ore.), Bernie Sanders (I-Vt.), Elizabeth Warren (Mass.), Sheldon Whitehouse (R.I.) and Ron Wyden (Ore.).
The bill would add text to the 1993 law specifying that RFRA cannot counteract civil rights laws, employment law, protections against child abuse or access to health care.
Charles Haynes, a scholar on religious freedom at the Newseum, said RFRA, as it is written, has not typically been applied by the courts to allow discrimination against LGBT customers. “RFRA is not a blank check to protect free exercise of religion. It simply requires the government to take claims of consciousness seriously,” he said.
The court’s decision in favor of Hobby Lobby concerned some liberals, but Haynes noted the court argued that the women denied contraception coverage by their employer were not actually harmed, because they could take advantage of an alternate means to get the same coverage that was already available to employees of religious nonprofits. “The outcome in Hobby Lobby does not necessarily signal that RFRA can be used to trump civil rights protections. That’s a very high bar, traditionally, in our country. There’s not much that trumps civil rights law,” Haynes said. “Having said that, I understand that people are alarmed.”
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