The Religious Freedom Restoration Act (RFRA) was passed almost unanimously in 1993. The federal law was enacted to "ensure that interests in religious freedom are protected," which, though vague, is reasonable enough. In recent practice, however, RFRA has done more to restrict freedoms than to protect them.
The case brought to the Supreme Court by Hobby Lobby in 2014 is probably the most egregious example. The arts and crafts retailer was the first corporation to successfully use RFRA to attack women's reproductive rights. Based on an unprecedented interpretation of the statute, the conservative-leaning court ruled that a business could be exempt from paying for contraceptive coverage under the Affordable Care Act if it went against its beliefs. Of course, many women who work at Hobby Lobby probably do not share the views of their Christian employer—but since Burwell v. Hobby Lobby they're out of luck.
"This is a deeply troubling decision," the deputy legal director of the American Civil Liberties Union told NBC News at the time. "For the first time, the highest court in the country has said that business owners can use their religious beliefs to deny their employees a benefit that they are guaranteed by law."
Critics feared that Burwell v. Hobby Lobby would have widespread and negative consequences. Indeed, just this week the Supreme Court had to face the results of its decision in another RFRA case, Zubik v. Burwell, which sought to expand the Hobby Lobby decision. In Burwell v. Hobby Lobby, corporations were granted the same exemption to providing contraceptives as religious nonprofits: A business can report to the government that they are declining to offer their employees contraceptive coverage, and the government will work with the company's insurer to provide that coverage so that the company doesn't have to think about birth control while they are thinking about profits/prophets. But religious nonprofits decided that arrangement was no longer going to work. The plaintiffs in Zubik argued that having to report their reasons for not offering contraceptives was still a burden on their religious rights. Ultimately, Zubik is still undecided—the Supreme Court sent the appeals brought by various nonprofits to the lower courts with a recommendation to "compromise."
But a new amendment proposed by a coalition of congressmen could end this practice of using RFRA to justify attacks on other civil liberties. According to a press release sent by the House of Representatives, the Do No Harm Act, put forth by Congressman Joe Kennedy III from Massachusetts and Congressman Bobby Scott from Virginia, "would clarify that no one can seek religious exemption from laws guaranteeing fundamental civil and legal rights." In an interview with Broadly, Kennedy asserted that the proposed amendment would restore a balance between protecting religious freedom and protecting the rights of women, the LGBT community, and other minorities who have been targeted by RFRA.
"This bill is important and timely," Kennedy said. "It tries to restore the fundamental balance between two bedrock American values, which are the free exercise of religion and the equal protection of our law. The Religious Freedom Restoration Act was originally enacted with broad bipartisan support and the overwhelming support of the American people to protect religious freedom, particularly for religious minorities. But over the past several years we have seen across our country that RFRA has been used as a tool to impose one's religion on another, or infringe on another's basic rights. This law simply tries to recalibrate that balance. It recognizes the fundamental right to free exercise—we don't want to repeal RFRA—but it also recognizes that you have to respect other's individual rights."
Kennedy explained that, if the bill were to pass, corporations like Hobby Lobby would no longer be exempt from providing comprehensive insurance that includes contraception from their employees. The Do No Harm Act would also overturn many other misuses of the religious freedom law. "This bill says that the protections provided by RFRA cannot be used to get around health care laws, child labor laws, workplace laws, and wages and compensation laws. There was a child labor case in Utah where a member of [the FLDS church] cited RFRA as a reason not to testify—and it worked. We've seen these instances pop up all over the country."
Many states have passed their own version of the Religious Freedom Restoration Act.
Twenty-one states now have RFRAs, inspired by the original and taken to various extremes, and most of which are not very good for freedom. The bills are generally said to allow people to discriminate against gay and transgender people under the guise of religious liberty. "From Indiana to North Carolina; from Georgia to Mississippi, a number of right wing extremist legislators have tried to obfuscate the intent of the federal Religious Freedom Restoration Act (RFRA), which was enacted in 1993 to address a series of legal cases which together chiseled away the protections guaranteed by the First Amendment to the U.S. Constitution to safeguard traditional Native Americans and other religious minorities in our country," said Mr. Hilary O. Shelton, director of the NAACP Washington Bureau and the senior vice president for policy and advocacy, in a press release.
Advocates say that the Do No Harm Act is necessary to curtail these abuses. The bill has support from the ACLU—an organization that once enthusiastically supported the passage of RFRA—Human Rights Campaign, House of Representatives LGBT Equality Caucus, and various women's groups.
"Every woman should have access to basic reproductive health care, no matter her employer or zip code," said Sasha Bruce, the senior vice president for campaigns and strategy at NARAL, in a press release. "The Do Not Harm Act will protect this basic principle from attacks from those who want to interfere with a woman's ability to get the full range of health care services. We applaud Congressmen Scott and Kennedy for introducing this strong piece of legislation which ensures that no one can, under the guise of religious liberty, undermine women's control over their health care."
But currently, the bill is not supported by any Republicans and might have trouble gaining across the aisle support. Kennedy, however, remains optimistic. "This is a complex issue. My co-sponsors and I are looking forward to discussing the impact of the law and trying to make the case to both Democrats and Republicans about how this does not infringe on the free exercise of religious beliefs, but merely respect them and allow the civil rights of others to be respected."