Post submitted by Jordan Dashow, former Federal Policy Manager

Yesterday, Representatives Joe Kennedy III (D-MA) and Bobby Scott (D-VA) reintroduced the Do No Harm Act, which would clarify that the Religious Freedom Restoration Act (RFRA) is intended to protect religious freedom without allowing the infliction of harm on other people.

When passed into law over two decades ago, RFRA was designed to protect minority religious groups' Constitutional right to freely exercise their religious beliefs. RFRA prohibits the federal government from “substantially burden[ing]” a person’s religious exercise unless doing so is the least restrictive means of furthering a compelling governmental interest. RFRA was supported by a broad coalition of organizations including many in the civil rights community, who welcomed the law as an important shield from the tyranny of majority rule.

Despite this focused, straightforward intent, individuals and businesses have worked to distort RFRA into a blank check to discriminate or to impose their religious beliefs on others. In 2014, the U.S. Supreme Court issued a ruling in Burwell v. Hobby Lobby Stores (Hobby Lobby), in which the Justices were asked to decide whether requiring a corporation to provide insurance coverage that includes contraception under the Affordable Care Act (ACA) is a “substantial burden” on the corporation with religious objections, and whether corporations are covered by the Religious Freedom Restoration Act of 1993 (RFRA). The Court ruled that closely held for-profit corporations are exempt from complying with the ACA contraception mandate based on the company’s religious belief under RFRA.

In her dissent, Justice Ginsburg expressed her concern that Hobby Lobby could lead to RFRA being used to permit discrimination against minority groups. In August 2016, this concern materialized in a court decision by a federal judge in Michigan in the case EEOC v. R.G. & G.R. Harris Funeral Homes. In the decision, the judge ruled in favor of a Detroit-based funeral home who fired a transgender employee due to her gender identity, stating that RFRA could be used as a defense in a sex discrimination claim under Title VII—exempting the employer from Title VII's non-discrimination requirements. The Judge specifically relied upon Hobby Lobby in his decision.

RFRA was never meant to be a tool for discrimination or an insincere justification for powerful groups intent on harming others without consequences. The Do No Harm Act would amend RFRA in order to restore the original intent of the legislation by specifically exempting areas of law where RFRA has been used to bypass federal protections. These include well-settled areas of law designed to protect our most vulnerable populations including child labor and abuse, equal employment and non-discrimination, health care, federal contracts and grants, and government services. The Do No Harm Act therefore ensures that religious freedom is used as a shield to protect the Constitutional right to free exercise of religion and not a sword to discriminate.

HRC applauds Reps. Kennedy and Scott for reintroducing the Do No Harm Act. Numerous LGBTQ, civil rights, health, and faith groups support the Do No Harm Act, including the ACLU, AIDS United, Americans United for Separation of Church and State, Center for American Progress, Interfaith Alliance, Lambda Legal, Leadership Conference on Civil and Human Rights, NAACP, NARAL, National Center for Transgender Equality, National Partnership for Women and Families, National Women’s Law Center, and Planned Parenthood Federation of America.