Dozens of religious liberty laws were introduced into state legislatures this year, designed to address manufactured threats to religious believers. In fact, religious liberty rights are amply protected by state and federal law in every state, yet religious conservatives have been on the offensive to use religion as part of a backlash against same-sex couples gaining the right to marry, and against the rights of transgender people to equality and dignity.
Last Wednesday the defenders of equality went on the offensive themselves, introducing into Congress a law that would limit overreaching in the name of religion. Representatives Joseph Kennedy III and Bobby Scott introduced into the House of Representatives the Do Not Harm Act. The bill seeks to amend the Religious Freedom Restoration Act (RFRA), a federal law that was enacted in 1993 to protect religious minorities from discrimination but has since been used to infringe on the constitutional and statutory rights of third parties in the name of religion.
A few years ago, the Supreme Court’s overly broad interpretation of RFRA led to the Hobby Lobby decision where the Court found that certain for-profit entities could avoid compliance with a requirement in the Affordable Care Act ensuring contraceptive coverage at no cost to their employees by claiming a religious objection to doing so. After Hobby, many feared an increase in the number of people and institutions that sought to use religious exemption laws to limit the rights of third parties. However, if the GOP-led Congress passes the Do No Harm Act, religious objectors seeking to use overly broad interpretations of religious accommodations laws will be dealt a serious blow. The Act would not only protect the rights of women and LGBTQ folks, it would also protect the rights of people of color, a group less talked about in this context who stand to suffer great harm from some religious accommodation laws.
Let’s take the latest religious exemption case heard by the Supreme Court, Zubik v. Burwell, as an example of how some religious exemptions can cause great harm to communities of color. The plaintiffs in Zubik are non-profit religious organizations that refuse to comply with the accommodation that the government provides for faith-based entities that have religious objections to providing contraception coverage. These employers may notify either the U.S. Department of Health and Human Services (HHS) or their insurer of their religious objection to contraceptive coverage. The insurer itself then provides the contraceptive coverage to the employees, at no additional cost to either the enrollees or the objecting organization. Earlier this week the Court decided to punt this case back to the lower courts to work out a solution. If the plaintiffs in Zubik had won, thousands of women of color who work at religious non-profits, including universities, hospitals, and social service organizations would have been stripped of their right to no-cost insurance coverage for contraception. Little Sisters of the Poor Home for the Aged in Denver was one of the employers that challenged the contraception requirement in Zubik. Like most nursing homes, the employees at the Little Sisters nursing home are women of color.
While these organizations employ women of all backgrounds, the case has huge ramifications for women of color since lack of access to quality reproductive health care plays a large role in the overall health disparities faced by communities of color today.
How so? The advocates of overly broad protections for religious liberty rights under RFRA, just like the plaintiffs in Zubik, want to be excused from complying with generally applicable laws (like anti-discrimination laws) even if doing so would impose a material harm on other people – such as denying their right to adequate health care, to equal opportunity in the workplace, or to a have their marriage universally recognized as valid.
The Do No Harm Act would fix this by limiting the reach of RFRA to situations where no harm is done to others. A reasonable clarification that balances the rights of religious liberty against other important rights. In fact, this approach is exactly what the Supreme Court has taken in interpreting the limits of the First Amendment’s religious liberty protections.
For this reason, the Do No Harm Act is necessary to protect the equal rights of people of color. Unfortunately, the threat posed by overly broad interpretations of religious accommodation laws to communities of color doesn’t end at Zubik. There is a real danger that such laws could strip away many of the rights and protections won by people of color over the last few decades. While federal laws including the Civil Rights Act and Fair Housing Act contain strong protections against racial discrimination, those who wish to discriminate could also demand an exemption from federal antidiscrimination law under the current version of RFRA. Here, a religious objector would have to show that serving a particular group of people would burden their exercise of religion. Such race-based religious objections are not uncommon. A few months ago an interracial couple in Mississippi, a Black man and a Native American/Latina woman, were evicted from a recreational vehicle (RV) park because the landlord said his church opposed interracial marriages. The eviction forced the couple to move to another RV park with higher rent. If the Do No Harm Act is passed in Congress, the landlord would not be able to use religion as a license to engage in otherwise illegal race discrimination.
The Do No Harm Act can also be used as a tool for state legislatures and advocates hoping to push back against many of the state RFRA bills that have been popping up in state houses across the South. Many of these bills which were modeled after the federal RFRA have been used to provide religious objectors with a license to discriminate against not only LGBTQ folks, but racial minorities as long as the religious objectors can show that the state law placed a burden on their religion. For example, a number of state bills would allow a baker, a caterer, a rental hall, a photographer and others to refuse services not only to same-sex couples getting married but to interracial couples as well. If the Do Not Harm Act passes, state legislatures would be emboldened to pass similar amendment to state RFRAs.
This week’s introduction of the Do No Harm Act by two Democratic Congressmen marks a shift to the offensive for those who seek to create a reasonable balance between religious liberty and other fundamental rights, including equality. While we’ve been playing defense in state legislatures across the country, the bill marks the need for proactive measures to be taken in the fight for meaningful and sustainable anti-discrimination laws and protections for all citizens.