We Can Protect Religious Liberty Without Denying Rights to LGBT People

Kamala Harris and Joseph P Kennedy

Our country is strongest when we are all free to practice our religion, or no religion, as we choose — without hurting others. But unfortunately, there is a movement in our nation to use religion to authorize discrimination and harm to people. The stakes are particularly high for LGBTQ people, women, and religious minorities. That’s why, last week, Sens. Kamala Harris (D-Calif.), Patrick Leahy (D-Vt.) and Mazie Hirono (D-Hawaii) introduced the Do No Harm Act in the U.S. Senate, joining Reps. Joseph P. Kennedy III (D-Mass.) and Robert C. “Bobby” Scott (D-Va.), who first introduced the bill in the U.S. House of Representatives. The Do No Harm Act will ensure that our nation’s main religious freedom law, the Religious Freedom Restoration Act, is used as a shield to protect religious exercise, not as a sword to harm and discriminate against others.

The Do No Harm Act would restore RFRA to its original purpose. Enacted in 1993, RFRA was passed to remedy a U.S. Supreme Court decision (Employment Division v. Smith) that dramatically changed the legal standards for judging religious freedom claims. People from many faiths and denominations, legal experts and civil liberties advocates were concerned that under Smith, people of faith would lose religious freedom protections such as the ability to wear religious attire or take off time for religious holidays. They formed a broad coalition and urged Congress to respond, which culminated in the passage of RFRA. 

The need for RFRA’s protections is just as real today as it was in 1993. Religious minorities still face discrimination and serious burdens on their religious exercise, which RFRA has helped remedy. For example, RFRA has given Sikh and Muslim military members the right to wear their articles of faith — like hijabs, turbans and beards — while in uniform. Under the Do No Harm Act, RFRA would continue to provide these types of protections. Significantly, though, it could not be transformed into a weapon to undermine important federal laws, such as civil rights laws and laws guaranteeing access to health care, that protect more vulnerable people in our society.

We need the Do No Harm Act now because we are witnessing an increasingly aggressive misuse of RFRA to take away people’s rights. In 2014, Hobby Lobby, a national craft store chain with tens of thousands of employees, successfully used RFRA to refuse to provide its workers insurance coverage for contraception. Currently, there are efforts to allow child welfare agencies that take taxpayer dollars to use RFRA to discriminate against potential parents — particularly non-Christian and LGBTQ parents — and to deny children the safe, loving, and happy families they deserve.

The Trump administration is further exploiting RFRA to enact its regressive agenda. A recent example is a Department of Justice guidance memo that uses RFRA to create a blueprint for discrimination. The memo asserts that RFRA allows taxpayer-funded organizations, corporations, and individuals to claim religion as a justification to interfere with people’s access to health care and deny government-funded services to those in need. The administration is implementing policies across the federal government based on this guidance. The Do No Harm Act would put an end to using RFRA to harm others.

Some argue that people should have the right to practice their religion even when it has negative consequences for those who do not share their belief systems. But how can our intentionally and vibrantly diverse nation thrive if members of one religious community are allowed to use their religion to hurt those who do not share their religious views? We cannot countenance “religious freedom” becoming an engine for discrimination.

Religious freedom should never be used to deny government-funded emergency housing to a teenager because he is gay, to deny reproductive health care to a victim of human trafficking who is getting government-funded services, or to deny a loving, stable home to a child in the state’s foster care system because the prospective parents are a same-sex couple.

Now more than ever, it’s vital that Congress pass this critical piece of legislation. 

RACHEL K. LASER is president and CEO of Americans United for Separation of Church and State in Washington, D.C.

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