WASHINGTON — On what may be the eve of a landmark supreme court religious freedom decision, top democratic senators introduced a ‘Do No Harm Act” that seeks to revise the 1993 Religious Freedom Restoration Act. If passed, the amended RFRA language would, as the bill’s sponsors hope, prevent the RFRA from being used as a justification to discriminate.Senate bill 2918 was introduced May 22, led by U.S. Senators Kamala D. Harris (D-CA), Patrick Leahy (D-VT), and Mazie Hirono (D-HI). In a press release, Harris said, “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[sic] rights will be undermined because of race, gender, sexual orientation, or gender identity. The Do No Harm Act will ensure we protect both these rights for all.”
The spirit behind the bill reflects, at the very least in words, a recognizable moral concept for many Wiccans and other Pagans: “An ye harm none, do what ye will.”
The sponsors describe the act as a ” bill to amend the Religious Freedom Restoration Act of 1993 to protect civil rights and otherwise prevent meaningful harm to third parties, and for other purposes.” It changes the language to protect and allow for the free exercise of religion up until the point when someone is “meaningfully harmed.”
SB 2918 is not the first bill of its kind; two others were introduced in the House in 2016 and 2017, also by Democratic leaders. The House bills were also labeled “Do No Harm” acts. They are currently in committee.
The original national Religious Freedom Restoration Act was signed by President Bill Clinton in 1993 and, since that point, there have been a number of similar state acts that have been enacted. RFRA legislation have played visible roles in cases such as the 2014 Burwell v. Hobby Lobby Stores, in which Supreme Court justices ruled that the Affordable Care Act’s contraceptive requirements placed a significant burden on the religious foundation of that for-profit company. Hobby Lobby, a national chain of arts and craft stores, is run by the Green family, who have openly run their business “in a manner consistent with Biblical principles,” as written in their mission statement. The company supports missionary work and is a lead donor in the new Museum of the Bible, based in Washington D.C. Contraception is not permissible in their religious worldview.
Leahy said, “While the Religious Freedom Restoration Act (RFRA) was originally passed by Congress to protect the rights of religious minorities, it 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 longstanding anti-discrimination protections in the law are not eroded.”
More recently, the RFRA has been invoked in the Masterpiece Cakeshop case in which a baker refused to craft a cake for a same-sex wedding ceremony. In this case Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the court examines, once again, the intersection of a for-profit business operation guided by the strict religious beliefs of its owner-operator and the civil rights of others. Unlike in the Hobby Lobby case, the people affected are not employees, but rather potential customers.
According to the sponsoring senators and other supporters, there have been many cases in which RFRA legislation has been used against marginalized individuals, particularly citing members of the LGBTQ communities.
Co-sponsoring Senator Ron Wyden (D- Oregon) said: “Discriminating against anybody because of how they look, who they love or what religion they practice has no place in our country. I have always been proud to fight for LGBTQ Americans and the equal rights they deserve, and I’m proud to sponsor this bill that protects against discrimination under a false pretense of religious freedom.”
While there has been consistent RFRA support in conservative Christian communities as well with Republicans, the national RFRA originally received bipartisan support. It was prompted by the Employment Division v. Smith (1990) Supreme Court case, in which a Native American man was fired after a drug test revealed peyote in his system – a substance reportedly ingested during a religious ceremony.
Due to the original RFRA purpose, there are some legal professionals who feel that the new act is actually not necessary. The Washington Post quotes scholar Charles Haynes, who reportedly said, “RFRA is not a blank check to protect free exercise of religion. It simply requires the government to take claims of consciousness seriously.” He remarked that the RFRA legislation has not yet been used to inflict harm, and he doubts it will. However, he did add that he understands why people are alarmed.
Haynes also suggested that its introduction may be simply a political move to bolster votes in the upcoming midterm elections, since the the new bill is unlikely to get any further than the two still sitting in the House.
Civil rights watchdog organizations don’t agree with Haynes. Americans United for the Separation of Church and State, for example, published an article that was written by Maggie Garrett. It reads, in part:
RFRA was born of good intentions: it was designed to protect religious minorities and ensure they can exercise their faith even when the government enacts rules that may unintentionally proscribe the practice. For example, a Muslim woman recently used RFRA to ensure she has the right to wear hijab while serving our country in the Air Force JAG. In the two decades since its passage, however, many have misconstrued and exploited RFRA in ways that would harm and deny the rights of others.
Garrett goes on to cite the Hobby Lobby case as a prime example of poor use of the RFRA. She says, “Actions by the Trump administration make the Do No Harm Act more important than ever. The administration is using RFRA as a tool in its agenda to take away people’s rights.”
ACLU representative Ian Thompson agrees, saying, “In this current climate, with a White House and Justice Department committed to using RFRA as a license to discriminate, it is more important than ever for Congress to make clear that this law is a shield for religious freedom–not a sword for discrimination.”
The Human Rights Campaign board published a statement that reads: “The Do No Harm Act clarifies that the Religious Freedom Restoration Act is intended to protect religious freedom without allowing the infliction of harm on other people.”
Despite any debates surrounding the use of RFRAs, most experts do agree that the Do No Harm Act will not pass in a Republican-controlled congress.