Written by Don Byrd

A bill introduced in the United States Senate this week would change the Religious Freedom Restoration Act (RFRA), a 25-year-old federal law that protects religious liberty by establishing a careful balance between the interests of government and those of religious adherents. According to RFRA’s standard, the state can substantially burden a person’s religious free exercise only if necessary to achieve a compelling government interest.

The bill offered by a group of Senate Democrats is called the “Do No Harm Act” would clarify that those religious free exercise protections cannot be applied when to do so would infringe on the civil rights of another, third party.

The Washington Post reports:

“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.

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 that RFRA, as it is written, has not typically been applied by the courts to allow discriminating against LGBT customers, as it is. “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

Along the same lines as Haynes’ response, BJC General Counsel Holly Hollman explained how RFRA’s protections already restrict a religious claimant when a similar amendment was introduced in the U.S. House in 2016.

“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.”   

The Post notes that the current bill is “unlikely to pass in the Republican-controlled Congress.”

For more on the Religious Freedom Restoration Act, see the BJC’s RFRA Resource page.