Democrats in the U.S. Congress this week introduced legislation to protect the civil rights of women, LGBTQ people, and people of color from the misappropriation of the federal Religious Freedom Restoration Act (RFRA).
The “Do No Harm Act” is a companion measure to legislation of the same name introduced last year by Reps. Joe Kennedy (D-MA) and Bobby Scott (D-VA). It would amend RFRA, a Clinton-era law meant to protect against burdening a person’s exercise of religion that has since been manipulated by conservatives as part of their religious imposition agenda, in order to “protect civil rights and otherwise prevent meaningful harm to third parties.”
Among its sponsors are Sens. Kamala Harris (D-CA), Patrick Leahy (D-VT), and Mazie Hirono (D-HI).
The legislation would mandate that the law “not be interpreted to authorize an exemption from generally applicable law that imposes the religious views, habits, or practices of one party upon another” and that RFRA “should not be interpreted to authorize an exemption for one party that permits discrimination against others, including persons who do not belong to the religion or adhere to the beliefs of that party.”
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This isn’t the first time the Do No Harm Act has been introduced. Previous iterations failed to be taken up for a vote in Congress. But under the Trump administration, whose religious imposition agenda has extended across federal agencies, the measure has taken on new urgency. Trump in January signed an executive order that civil rights advocates worry opens the door for discrimination on the basis of so-called religious liberty.
“The need to pass this bill is urgent because the Trump Administration has signaled they intend to use the Religious Freedom Restoration Act exemptions as a license to harm and discriminate against people because of their race, gender, sexual orientation, or gender identity,” a spokesperson for Harris told Rewire.News.
“Religious freedom does not give anyone the right to discriminate,” Ian Thompson, a legislative representative for the ACLU, said in a statement. “But RFRA has already been used to advance discrimination against women, LGBT individuals, and others. In this current climate, with a White House and Justice Department committed to using RFRA as a license to discriminate, it is more important than ever for Congress to make clear that this law is a shield for religious freedom—not a sword for discrimination.”
The misappropriation of RFRA started long before Trump became president. As Kira Shepherd, the associate director of racial justice at the Public Rights/ Private Conscience Project at the Center for Gender and Sexuality Law at Columbia Law School, explained in 2016, “the U.S. Supreme Court’s overly broad interpretation of RFRA in Hobby Lobby found that certain for-profit entities could avoid compliance with [the Affordable Care Act’s birth control benefit] by claiming a religious objection to doing so. After Hobby Lobby, many feared an increase in the number of people and institutions that would use RFRA and other religious exemption laws to limit the rights of third parties.”
Since Hobby Lobby was decided in 2014, many have indeed invoked RFRA to justify discrimination.
“RFRA was never intended to be used to deny women access to reproductive health services, but in recent years that’s exactly what has happened,” Harris’ spokesperson told Rewire.News.
“This bill amends and clarifies the law so it cannot be applied to cases involving discrimination, child labor and abuse, access to health care, provision of wages and benefits, and any terms tied to government funding. In short, it would prevent a for-profit entity—like Hobby Lobby—from using the RFRA to deny contraceptive coverage to their female employees based on the employer’s religious beliefs.”
The legislation is backed by human, civil, and reproductive rights organizations, including Physicians for Reproductive Health, the National LGBTQ Task Force Action Fund, the National Partnership for Women and Families, the Human Rights Campaign, and the American Civil Liberties Union.
CORRECTION: This story has been updated to correctly identify Kira Shepherd.