By General Counsel K. Hollyn Hollman
Current political rhetoric seems trapped in a death spiral that laws can either protect religious liberty or LGBT civil rights, but not both. It seems a growing number of “culture wars” are being fought on the platform of religious liberty, threatening the public’s understanding. We are clearly in the midst of significant social, cultural and legal changes as well as an election season, but this stark state of affairs need not remain. For much of our history, religious liberty has been a unifying value persisting through societal changes.
The BJC is involved in numerous policy debates as state legislatures continue to consider measures about religious exemptions and LGBT rights. Congress, likewise, has the opportunity to alter the legal landscape on these and other church-state matters.
Between June 1 and December 31, the U.S. House of Representatives is scheduled to be in session for a total of 54 days. Many of those days likely will be devoted to passing an appropriations bill to keep the federal government open. While the prospect of other significant legislation passing is slim, the BJC will continue to evaluate and monitor religious liberty legislation pending in Congress that represents important policy debates and current partisan divisions.
The BJC is one of more than 100 organizations supporting the bipartisan Freedom of Religion Act (H.R. 5207). This legislation, recently introduced by Rep. Don Beyer, D-Va., simply prohibits the use of an immigrant’s or alien’s religious belief or non-belief as grounds for denying entry into the U.S. At a press conference announcing the bill, Rep. Beyer pledged to continue outreach to expand co-sponsorship, particularly seeking more Republican sponsorship.
The Frank R. Wolf International Religious Freedom Act (H.R. 1150/S. 2878) is the latest effort to reform the International Religious Freedom Act of 1998, the legislation that established the U.S. Commission on International Religious Freedom. This proposal would change how the ambassador-at-large coordinates with other agencies and projects, require training for all Foreign Service officers and alter how “countries of particular concern” are designated. The bill passed the House of Representatives on May 16 and now awaits action by the Senate.
Other federal legislative efforts have developed in response to U.S. Supreme Court decisions affecting religious liberty. Following the Court’s 2014 decision upholding the application of the Religious Freedom Restoration Act to a for-profit corporation in Burwell v. Hobby Lobby, as well as highly publicized attempts to use state RFRAs for exemptions to nondiscrimination laws, the Do No Harm Act (H.R. 5272) was introduced to amend the federal RFRA. The legislation would exempt several categories of law from RFRA’s balancing test. These categories include laws protecting civil rights, employment and health care. The BJC does not support this bill. RFRA, though not perfectly applied in every case, has provided much-needed protection against governmental interference with the exercise of religion.
Another bill that pertains to RFRA is the Equality Act (H.R. 3185/S. 1858), the omnibus LGBT civil rights proposal that expands the list of protected categories in federal statutes to include sex (where currently not included), sexual orientation and gender identity. Additionally, the legislation provides that RFRA does not apply to those statutes. The BJC is monitoring this bill and does not support that RFRA carve-out. RFRA was passed with the broad, bipartisan idea that it applies to all legislation, allowing courts to balance burdens on religious exercise and compelling governmental interests.
Lastly, the First Amendment Defense Act (H.R. 2802/S. 1598), known as “FADA,” would prohibit the government from taking “discriminatory action” against a person (individuals, nonprofits and for-profits) for acting in accordance with a religious belief that marriage is between one man and one woman and that sexual relations are properly reserved to such a marriage. “Discriminatory action” includes (but is not limited to): altering tax exemption; disallowing charitable deductions; withholding or changing a federal grant, contract, loan, license, accreditation, employment, etc. or otherwise diminishing any benefit in a federal benefit program. The legislation was first proposed in anticipation of the Supreme Court’s decision in Obergefell v. Hodges recognizing same-sex marriage and its potential impact on various religious nonprofits, including schools, hospitals and social service providers. Several states have introduced versions of FADA that apply either to a subset of religious nonprofits or to all of them that interact in some way with the state government.
While many of these congressional efforts will likely remain stalled, the BJC will continue to monitor them and engage the issues they represent with members and staff, coalition partners and our constituents. Despite significant challenges, if we focus on our first principles and work hard to find common ground, religious liberty will win.
From the June 2016 edition of Report from the Capital. Click here to view the issue as a PDF document.
