Written by Don Byrd
Today, Rep. Joseph P. Kennedy III, D-Mass., and Rep. Bobby Scott, D-Va., introduced legislation called the “Do No Harm Act,” which would amend the federal Religious Freedom Restoration Act (RFRA). RFRA prohibits the federal government from substantially burdening a person’s religious exercise unless it is necessary to further a compelling government interest. The law sets a high standard of protection against government interference into religious exercise, while requiring courts to balance that protection with the interests of the public.
Responding to recent controversies involving efforts to assert RFRA protections, the “Do No Harm Act” would limit the law’s application in several contexts, including the provision of government services, and the violation of certain nondiscrimination and employment laws.
The Baptist Joint Committee led the broad and diverse coalition that pushed for RFRA’s passage in 1993, and has continued to support its standard and to advocate for strong religious liberty protections.
I asked BJC General Counsel Holly Hollman to give some more context in light of the introduction of today’s bill. She said, “While RFRA can be invoked for any religious claim, it requires first a showing of a substantial burden on religious exercise. When such burdens are shown, RFRA’s balancing test requires courts to determine whether those burdens are justified by compelling government interests, including the rights of others. Recently, RFRA has been invoked in contexts that have drawn attention and raised concerns that it may one day be interpreted to override other important interests in a way that harms others.”
In 2013, the BJC put together a booklet that was distributed at a symposium honoring RFRA’s 20th anniversary. Page two offers some history and important context to help understand what unified the coalition at the time and how opinions have changed:
Coalition members recognized at the time that RFRA provided a high standard for all free exercise claims without regard to any particular religious practice or desired outcome, and that it would produce different results according to the facts of individual disputes. Still, common ground lay in the belief that all Americans have a right to exercise their religion.
Two decades later, opinions about RFRA vary. Some prior RFRA advocates now express concerns about its application in particular contexts, such as its interaction with civil rights and health care laws; others argue RFRA has not lived up to its promise of providing meaningful protection for religious liberty for all. Others [including the BJC] conclude that RFRA, while not perfectly applied in every case, has on balance provided much needed protection against governmental interference with the exercise of religion.
As we debate the merits of tinkering with RFRA’s careful balance, it is important to keep in mind how the law works. As Holly said to me today, “RFRA does not guarantee the success or failure of any particular claim, nor is it the cause of discrimination. Current political and cultural differences are impacting the public’s understanding of religious freedom and challenging our country’s legacy of protecting religious freedom for all.”
Holly also wrote about the state-by-state struggle to define and defend religious liberty these days in April’s Report from the Capital. It’s worth a read.
