U.S. Senator Kamala Harris (D-Calif.) and Congressmen Joe Kennedy (D-Mass.) and Bobby Scott (D-Va.) reintroduced a bill that would essentially render the Religious Freedom Restoration Act (RFRA) useless.
According to its sponsors, the “Do No Harm Act” would prevent the RFRA from being used to deny:
- Protection against discrimination laws or the promotion of equal opportunity, including the Civil Rights Act of 1964 and other laws;
- Workplace protections or protections against child abuse;
- Healthcare access, information, referrals, provisions, coverage or services to which persons are otherwise legally entitled;
- Services that the government has contracted to be provided to beneficiaries through a government contract, grant, or cooperative agreement; and
- Accommodations or other benefits and services provided by the government.
“The freedom to worship is one of our nation’s most fundamental rights. That First Amendment guarantee should never be used to undermine other Americans’ civil rights or subject them to discrimination on the basis of race, gender, sexual orientation, or gender identity,” said Harris in a released statement announcing the bill. “I’m proud to reintroduce the Do No Harm Act to more comprehensively protect the basic rights of every American.”
There are two fundamental problems with Harris’ statement and the underlying assumption behind this bill.
1. Freedom to Worship ≠ Free Exercise of Religion
The First Amendment of the Constitution states, “Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
It does not limit our freedom to just the act of worship.
To say someone has the “freedom to worship” implies that the government will not interfere with what you do corporately in your place of worship or privately in your home.
China allows the “freedom to worship.”
Our freedom of religion encompasses much more than that. It guarantees the exercise of our faith throughout our public and private lives: what we say, what we do, and what we will not do in keeping with the tenets of one’s particular faith.
That is the exercise of religion, not just an act of worship which is part of our exercise of religion.
By limiting the First Amendment to the “freedom to worship,” the government can regulate how we exercise our religion publicly.
2. RFRA does not allow discrimination; it places guardrails on government action.
“Government should be held to a very high level of proof before it interferes with someone’s free exercise of religion,” former President Bill Clinton said when signing RFRA into law.
RFRA asks three questions when someone appeals government action they believe infringes on their free exercise of religion:
- Is the government substantially burdening a person’s sincere belief through its action?
- Does the government have a compelling reason (like health or safety) to interfere?
- Is there a reasonable alternative to serve the public interest?
RFRA does not guarantee a person will win an appeal. It merely provides a pathway of defense. It prevents the government from coercing people to violate their religious beliefs or personal conscience on a whim. Harris, Kennedy, and Scott want to take that away.
Photo credit: American Life League via Flickr, CC BY-NC 2.0
