Louise Melling is the deputy legal director of the American Civil Liberties Union.
Iknoor Singh, a student at Hofstra University, thought he had found his calling when he attended a campus meeting of the U.S. Army’s Reserve Officers’ Training Corps. But when he tried to sign up, he was told that he would have to shave his beard, cut his hair and remove his turban. When he asked for a religious accommodation as a Sikh, the Army refused, saying that these articles of faith would undermine unit cohesion and morale, readiness, health and safety, and discipline.
But the Army regularly allows beards because of skin sensitivity to shaving, lets Jewish men wear yarmulkes and lets women wear their hair long — all without damaging the Army’s asserted interests. So we at the American Civil Liberties Union, along with the nonprofit group United Sikhs, filed suit, charging the Army with violating Singh’s religious freedom. We filed our claim under the Religious Freedom Restoration Act (RFRA), a federal law initially passed to protect the exercise of religious belief, including by vulnerable religious minorities.
This month, a federal court ruled that Singh must be allowed the opportunity to serve with his hair, beard and turban intact because they pose no harm to the Army’s mission and no danger to others. This was a victory for religious freedom.
The RFRA was passed in 1993 after two Native Americans were fired from their jobs and denied unemployment benefits because they used peyote, an illegal drug, in their religious ceremonies. The Supreme Court rejected a claim they had brought under the Free Exercise Clause of the First Amendment, but Congress disagreed with the justices and enacted the RFRA with near-unanimous support.
The ACLU supported the RFRA’s passage at the time because it didn’t believe the Constitution, as newly interpreted by the Supreme Court, would protect people such as Iknoor Singh, whose religious expression does not harm anyone else. But we can no longer support the law in its current form. For more than 15 years, we have been concerned about how the RFRA could be used to discriminate against others. As the events of the past couple of years amply illustrate, our fears were well-founded. While the RFRA may serve as a shield to protect Singh, it is now often used as a sword to discriminate against women, gay and transgender people and others. Efforts of this nature will likely only increase should the Supreme Court rule — as is expected — that same-sex couples have the freedom to marry.
In the Hobby Lobby case last year, a Supreme Court majority blessed the use of the RFRA by businesses to deny employees insurance coverage for contraception, a benefit guaranteed by law, if those businesses object on religious grounds and there is some other means of furthering the government’s interests. Religiously affiliated nonprofit organizations such as universities are taking the argument further. They invoke the RFRA to argue not only that they should not have to provide insurance coverage for contraceptives, but also that they should not even have to notify the government that they refuse to do so because, they maintain, notification would trigger the government to intervene to ensure coverage.
In the states, legislators, governors and businesses are citing state religious freedom restoration acts to justify all manner of discrimination against gay men and lesbians, including at commercial establishments. At the federal level, the Justice Department — under both the Bush and Obama administrations — has said that the government would violate the RFRA if it were to require that organizations not discriminate in hiring on religious grounds in order to receive government funding.
The U.S. Conference of Catholic Bishops says that the RFRA means it is entitled to taxpayer funding to assist unaccompanied immigrant minors, many of whom have been raped, despite the fact that it refuses to provide those teens access to or referrals for abortion and contraception services, as required by law. It goes so far as to assert that Catholic organizations can’t be required to tell the government when they have a teen who needs care — because then the government might step in and help.
These cases differ fundamentally from Singh’s. Accommodating his faith doesn’t hurt anyone else; it just requires making an exception to a rule of uniformity that was never truly uniform. Not so in these other cases. Hobby Lobby employees are harmed because they now lack a benefit guaranteed by law. People turned away by an inn or bakery suffer the harm of being told that their kind isn’t welcome. And a teenage immigrant is harmed by not being provided care or even told about other health-care options.
Yes, religious freedom needs protection. But religious liberty doesn’t mean the right to discriminate or to impose one’s views on others. The RFRA wasn’t meant to force employees to pay a price for their employer’s faith, or to allow businesses to refuse to serve gay and transgender people, or to sanction government-funded discrimination. In the civil rights era, we rejected the claims of those who said it would violate their religion to integrate. We can’t let the RFRA be used as a tool for a different result now.
It’s time for Congress to amend the RFRA so that it cannot be used as a defense for discrimination. Religious freedom will be undermined only if we continue to tolerate and enable abuses in its name.
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