Illustration by Mary Haasdyk<\/i><\/p>\n
It has been a little more than 28 years since President Bill Clinton signed the Religious Freedom Restoration Act (RFRA) into law.1<\/sup> An iconic photograph of the signing ceremony shows President Clinton surrounded by RFRA\u2019s smiling supporters: then New York Democratic Representative and now Senate Majority Leader Charles Schumer; California Democratic Representative Don Edwards; Ohio Democratic Senator Howard Metzenbaum; Vice President Al Gore; Utah Republican Senator Orrin Hatch; and Oregon Republican Senator Mark Hatfield. Massachusetts Democratic Senator Ted Kennedy is not pictured, but RFRA remains a significant part of his legislative legacy, as he and Senator Hatch co-led RFRA\u2019s passage in the Senate. <\/p>\n The photo captures a time when religious freedom enjoyed overwhelming bipartisan support, before special interest groups decided to make religious freedom and RFRA a political punching bag. RFRA\u2019s bipartisan support was reflected in its passing the Senate by a 97-3 vote, and the House by a unanimous voice vote. The coalition of organizations supporting RFRA\u2019s passage comprised 66 organizations from across the religious and political spectrum\u2014ranging from the Christian Legal Society and the General Conference of Seventh-day Adventists to Americans United for Separation of Church and State; from the National Association of Evangelicals to the ACLU; from the Baptist Joint Committee to the American Jewish Committee; and five dozen other organizations representing diverse religious and political ideologies.2<\/sup> <\/p>\n An Essential Bulwark<\/strong><\/p>\n RFRA was Congress\u2019s response to the Supreme Court\u2019s 1990 ruling in Employment Division v. Smith<\/i>,3<\/sup> a decision that left the free exercise clause in tatters. In Smith<\/i> the Court abandoned the \u201ccompelling interest\u201d standard the government had previously been required to meet when its action violated a citizen\u2019s religious conscience. Smith <\/i>held instead that religious individuals and institutions had to obey any law that violated their religious beliefs as long as the law was neutral and generally applicable, no matter how strong the religious claim or how weak the government interest. A government interest need not be compelling\u2014merely asserted.<\/p>\n As a result of the Smith <\/i>decision\u2014and as heretical as it sounds\u2014RFRA, not<\/i> the free exercise clause, has been the primary guarantor of Americans\u2019 religious freedom at the federal level for nearly three decades.4<\/sup> Since its passage, RFRA has admirably performed its job of protecting Americans of all faiths.<\/p>\n In recent years the Supreme Court under Chief Justice Roberts has begun to revitalize the free exercise clause, but it has not yet overruled Smith<\/i>. Until that happens, RFRA remains an essential bulwark for religious freedom against federal regulation. By its terms, RFRA requires that concrete criteria protective of religious freedom be applied to any federal government action that affects religious exercise. Federal agencies must be prepared to articulate compelling governmental interests not achievable by less-restrictive means, when their actions infringe citizens\u2019 religious freedom. <\/p>\n RFRA Under Attack<\/strong><\/p>\n As the linchpin of religious freedom, RFRA has attracted the ire of special interest groups. Upset that RFRA might sometimes protect religious individuals and institutions from government coercion in controversies involving abortion or LGBT interests, many of the same groups that were part of the original RFRA coalition have sought to dramatically weaken RFRA. Such an attack on RFRA is an attack on the religious freedom of all Americans.<\/p>\n A recent assault on RFRA comes in the guise of the deceptively misnamed Do No Harm Act.5<\/sup> This legislation would remove huge swaths of federal law from RFRA\u2019s religious freedom protections. Specifically, if enacted, the Do No Harm Act would subordinate Americans\u2019 religious freedom to federal laws and regulations regarding: <\/p>\n discrimination or the promotion of equal opportunity <\/p>\n wages, benefits, and collective bargaining<\/p>\n child labor, abuse, and exploitation<\/p>\n health-care items and services (including abortions and gender transition surgeries)<\/p>\n government contracts, grants, and cooperative agreements<\/p>\n access to any government good, service, benefit, facility, privilege, advantage, or accommodation <\/p>\n Closing Court Doors<\/strong><\/p>\n Unlike RFRA, the Do No Harm Act would limit the right of religious individuals and institutions to go to court to protect their religious exercise. And it is difficult to imagine a greater harm than this to religious citizens.<\/p>\n Under the Do No Harm Act, whenever religious exercise comes into conflict with federal laws and regulations, the religious individual or institution who has been harmed would lose the right previously guaranteed by RFRA to challenge the law or regulation in court. For practical purposes, the Do No Harm Act predetermines<\/i> the outcome: the federal government wins, and religious freedom loses. <\/p>\n In stark contrast, RFRA does not predetermine whether the government or religious freedom wins in a case brought under RFRA. It simply provides religious claimants with access to the courthouse. After hearing all sides, a judge applies RFRA\u2019s balancing test to determine whether religious freedom or the government wins on the facts of the particular case. And the reality is that during the past 28 years federal judges have ruled in favor of the government much more frequently than they have ruled in favor of religious claimants. To be sure, RFRA requires the judge to give significant deference to the religious claimant, but that is as it should be in a country whose unique contribution to humankind has been the recognition that religious freedom is an unalienable right to be shielded from government interference. <\/p>\n However, the proponents of the Do No Harm Act believe that religious exercise should rarely, if ever, win, no matter how strong the religious claim or how easily the government could accommodate the religious belief. At a minimum, the Do No Harm Act is uncharitable to religious Americans. At worst, it epitomizes some Americans\u2019 hostility toward other Americans\u2019 religious exercise.<\/p>\n Harm to Religious Minorities<\/strong><\/p>\n In the early 1990s the RFRA coalition\u2019s guiding principle was that RFRA would not choose winners and losers. Rather, all Americans of all faiths would be protected.<\/p>\n A number of so-called carve-outs\u2014or exceptions\u2014were sought during congressional deliberations before RFRA\u2019s passage. For example, some organizations wanted a prolife carve-out regarding abortion, but the coalition rejected any exception to RFRA\u2019s protections. The historic preservationists\u2019 demand for a carve-out was likewise rejected. Similarly, the demand from state officials that RFRA not protect prisoners\u2019 religious freedom met the coalition\u2019s unwavering insistence that, like all other Americans, prisoners would be protected.<\/p>\n In other words, RFRA leveled the playing field for religious minorities. The Smith <\/i>decision had made people of faith dependent on persuading Congress and executive agencies that their religious exercise should be exempted from conflicting federal laws and regulations. But this is an unworkable approach. Religious minorities often lack the political clout needed to obtain exemptions in legislation or regulations. By essentially layering an across-the-board religious exemption onto all federal laws and regulations, RFRA alleviated religious citizens\u2019 dependence on legislators\u2019 goodwill. <\/p>\n Crucially, RFRA\u2019s supporters recognized that once one exception was made to RFRA, other exceptions would inevitably follow, rendering RFRA a nullity. For 28 years, therefore, Congress has resisted several attempts to create \u201cjust one carve-out\u201d from RFRA\u2019s protections. <\/p>\n The Do No Harm Act\u2019s carve-outs would eviscerate RFRA. In many ways the Do No Harm Act represents a liberal wish list, but some conservatives also have their own list of pet government interests they think should override RFRA. The Department of Homeland Security has tried to exempt construction of a border wall. The Department of Defense has tried to exempt the military from accommodating certain religious exercises, such as the right of Orthodox Jewish and Sikh service members to wear religious headgear. The Drug Enforcement Agency has sought unsuccessfully to exempt enforcement of drug laws. If liberal and conservative demands for carve-outs are enacted, RFRA soon will cease to provide any meaningful protection for Americans\u2019 religious freedom.<\/p>\n Fixing What Isn\u2019t Broken <\/strong><\/p>\n Quite simply, the Do No Harm Act is superfluous. Carve-outs to RFRA are unnecessary because by its own terms, RFRA is a balancing test. A judge balances the government\u2019s interest against the individual\u2019s or institution\u2019s religious interest. If the government\u2019s interest is compelling and furthered by the least-restrictive means, then the religious claimant loses. Therefore, wholesale exemptions to RFRA are not needed, because RFRA itself contemplates that RFRA claims will not always prevail. <\/p>\n And they don\u2019t. While the RFRA standard gives religious freedom significant reinforcement, RFRA claimants more often than not lose in court, illustrating why the Do No Harm Act is a \u201csolution in search of a problem.\u201d6<\/sup> RFRA\u2019s \u201csensible balancing test,\u201d7<\/sup> by which a judge balances religious interests and governmental interests in a specific factual context, after hearing all parties, is far superior to the Do No Harm Act\u2019s categorical and callous denial of religious accommodations. <\/p>\n Indeed, RFRA\u2019s most important function may be that it equalizes the bargaining power between government officials and religious individuals and institutions. Without RFRA, federal officials have no duty to consider even a modest request for a religious accommodation. But RFRA incentivizes federal officials to at least meet with religious individuals or institutions, hear their stories, and work with them to arrive at an accommodation that respects religious freedom while achieving the government\u2019s interest. <\/p>\n Unfortunately, too many members of Congress are misinformed about the real <\/i>harm that passage of the Do No Harm Act would inflict on all Americans\u2019 religious freedom. In the preceding Congress, H.R. 1450 garnered 215 cosponsors in the House, and its Senate counterpart, S. 593, gained 33 cosponsors.8<\/sup> In this Congress, H.R. 1378 and S. 2752 currently have 140 cosponsors and 31 cosponsors, respectively.9<\/sup> To date, only Democrats and Independents have cosponsored the Do No Harm Act. <\/p>\n Religious freedom is imperiled by this erosion of bipartisan support once exemplified by President Clinton, Senate Majority Leader Schumer, Senator Kennedy, and Senator Hatch. Instead, bipartisan support for religious freedom has been supplanted by partisan targeting of RFRA\u2014and, through RFRA, the targeting of all Americans\u2019 religious freedom. <\/p>\n 1 Religious Freedom Restoration Act, 42 U.S.C. \u00a7\u00a7 2000bb et. seq<\/i>.<\/p>\n 2 Douglas Laycock and Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act<\/i>, 73 Tex. L. Rev. 209, 210 n.9 (1994).<\/p>\n 3 Employment Division v. Smith, <\/i>494 U.S. 872 (1990).<\/p>\n 4 See Kim Colby, Symposium: Free Exercise, RFRA, and the Need for a Constitutional Safety Net<\/i>, SCOTUSblog (Aug. 10, 2020), https:\/\/www.scotusblog.com\/2020\/08\/symposium-free-exercise-rfra-and-the-need-for-a-constitutional-safety-net\/.<\/p>\n 5 H.R. 1378\u2014117th Congress (2021-2022); S. 2752\u2014117th Congress (2021-2022).<\/p>\n 6 See, e.g., Stephanie H. Barclay and Mark L. Rienzi, \u201cConstitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions,<\/i>\u201d Boston College Law Review<\/i> 59 (2018): 1595, 1631-1646.<\/p>\n 7 Gonzales v. O Centro Esp\u00edrita Beneficente Uni\u00e3o do Vegetal<\/i>, 546 U.S. 418, 439 (2006) (In RFRA, \u201cCongress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.\u201d).<\/p>\n 8 H.R. 1450\u2014116th Congress (2019-2020); S. 59\u2014116th Congress (2019-2020). <\/p>\n 9 H.R. 1378\u2014117th Congress (2021-2022); S. 2752\u2014117th Congress (2021-2022). <\/p>\n","protected":false},"excerpt":{"rendered":" Illustration by Mary Haasdyk It has been a little more than 28 years since President Bill Clinton signed the Religious Freedom Restoration Act (RFRA) into law.1 An iconic photograph of the signing ceremony shows President Clinton surrounded by RFRA\u2019s smiling supporters: then New York Democratic Representative and now Senate Majority Leader Charles Schumer; California Democratic<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[345],"tags":[177],"class_list":["post-6602","post","type-post","status-publish","format-standard","hentry","category-january-february-2022","tag-january-february-2022"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6602","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6602"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6602\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6602"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6602"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6602"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}