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Top Senate Democrats introduce bill to amend Religious Freedom Restoration Act

Masterpiece Cakeshop owner Jack Phillips decorates a cake inside his store in Lakewood, Colo. He says he should have the religious freedom to refuse to make a gay couple’s wedding cake. (Brennan Linsley/AP)

Prominent Senate Democrats introduced a bill Tuesday that would amend the 25-year-old Religious Freedom Restoration Act to prevent the law from being used to justify discrimination against people, including gay, lesbian and transgender citizens.

Though it is unlikely to pass in the Republican-controlled Congress, the Democrats’ bill, called the Do No Harm Act, shows the party’s stance toward a thorny question in the hands of the Supreme Court — how to choose when both LGBT people and conservative Christians feel their civil rights are at risk.

The Religious Freedom Restoration Act, commonly referred to as RFRA, was popular among  lawmakers in both parties when it was enacted in 1993. Initially, it was usually referenced in cases involving practitioners of minority religions, such as Sikhs and Muslims seeking the right to wear their religious headgear in their driver’s license photos. But in recent years, it has become a favorite law among conservative Christians, who say that it protects their rights to abstain from practices they disavow.

Hobby Lobby, the craft chain owned by an evangelical Christian family, successfully argued before the Supreme Court that the government could not compel it to provide contraception coverage for its employees, because the family’s religious beliefs condemn certain types of contraception. The court is considering the case of a Christian cake baker, who says he should have the religious freedom to refuse to make a cake for a gay couple’s wedding. (Florists, photographers and an Indiana pizza shop have made similar claims.)

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The Democrats’ bill would amend RFRA to say that it does not protect the religious liberty of one person when the civil rights of another would be impinged. “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.

A similar bill was introduced in the House in 2016 and 2017. The sponsors of the Senate bill include Hirono and Sens. Richard J. Durbin (Ill.), Dianne Feinstein (Calif.), Kirsten Gillibrand (N.Y.), Kamala D. Harris (Calif.), Patrick J. Leahy (Vt.), Edward J. Markey (Mass.), Jeff Merkley (Ore.), Bernie Sanders (I-Vt.), Elizabeth Warren (Mass.), Sheldon Whitehouse (R.I.) and Ron Wyden (Ore.).

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.

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Charles Haynes, a scholar on religious freedom at the Newseum, said RFRA, as it is written, has not typically been applied by the courts to allow discrimination against LGBT customers. “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.

The court’s decision in favor of Hobby Lobby concerned some liberals, but Haynes noted the court argued that the women denied contraception coverage by their employer were not actually harmed, because they could take advantage of an alternate means to get the same coverage that was already available to employees of religious nonprofits. “The outcome in Hobby Lobby does not necessarily signal that RFRA can be used to trump civil rights protections. That’s a very high bar, traditionally, in our country. There’s not much that trumps civil rights law,” Haynes said. “Having said that, I understand that people are alarmed.”

The senators seemed concerned about such an application of the law, which the court could choose to hand down in the baker’s case. RFRA “has been contorted in recent years to defend discriminatory practices against LGBTQ individuals and women seeking access to reproductive health services. The Do No Harm Act would help put an end to misuse of the act and ensure that long-standing anti-discrimination protections in the law are not eroded,” Leahy said in a statement.

Richard Garnett, who runs Notre Dame Law School’s Program on Church, State and Society, argued that amending RFRA could swing the pendulum too far away from protecting religious freedom. “The law as it stands already requires courts to balance the burdens on the religious claimant, on the one hand, and the government’s interest, on the other. It seems to me that the Do No Harm Act is unnecessary,” he said. “To the extent an accommodation would undermine an important public interest, it is already not required by the act. In my view, the Do No Harm Act reflects a mistaken view that religious freedom should only be granted when it is costless. The reality is sometimes the public has an interest in providing exemptions to religious claimants, even if it is a bit inconvenient.”

Harris said the senators’ amendment could balance both: “The freedom to worship is a founding principle of this nation as well as the right to live free of discrimination or fear that one’s civils rights will be undermined because of race, gender, sexual orientation, or gender identity,” she said in a statement. “The Do No Harm Act will ensure we protect both these rights for all.”

Since the bill is highly unlikely to pass, without Republican support, its purpose is in large part simply to announce Democrats’ priorities to voters before the midterm elections in the fall, Haynes said. “One of the reasons for introducing it is to signal to people in the country — and according to polls, the majority of people want protections for LGBT people — this is where we stand, and this is what we would do if we have the opportunity,” Haynes said. “Motivating one’s base is the name of the game here, and getting people to the polls.”

Of course, conservative voters may well be motivated to vote against these Democrats, by fear of a bill like this, which to many conservative Christians will come across as heedless of Christians’ religious rights. “The whole ‘third-party harm’ on the one side sounds like a protection,” Haynes said, “and on the other sounds like a direct attack on religious freedom.”

This story has been updated.

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