Rep. Joseph Kennedy (D-Mass) and Rep. Bobby Scott (D-VA) introduced a bill on May 18, 2016, that would make it harder for people use religious freedom as an excuse to circumvent Federal laws. HR 5272 would limit the scope of the Religious Freedom Act (RFRA) of 1993. Specifically, the bill would limit the ability to use free exercise claims to avoid anti-discrimination laws, evade child welfare laws, undermine collective bargaining rights and wage and hour laws, deny access to health care, refuse to provide government-funded services, or perform the duties of a government employee.
Congress passed RFRA in response to the U.S. Supreme Court’s decision in Employment Division v. Smith (1990) that a neutral law of general applicability did not violate the Free Exercise Clause of the First Amendment even if the law ran contrary to an individual’s free exercise of religion.
RFRA required courts to apply strict scrutiny, which is the most stringent standard of judicial review, or legal test, to cases where religious claims ran contrary to state or federal laws. To pass this test and be considered enforceable, there are three requirements that the law must reach. First, it needs to be justified by a “compelling governmental interest” – it has to be something that the state needs, not just something that the state prefers. Second, it must be “narrowly tailored” to achieve that goal and not be overly broad. Third, it needs to use the “least restrictive” means to achieve that interest – if there’s any other way to achieve the compelling interest without infringing on the free exercise of religion, the government needs to take that approach. In other words, if there’s a conflict between a state law and the free exercise of religion, the state needs to work around the free exercise concern to the maximum extent possible.
While RFRA is a commonly cited religious liberty statute, it does not bear the authority or permanence of a constitutional amendment and can be modified by Congress at any time.
In 1997, in City of Boerne v. Flores, the Supreme Court ruled that Congress had overstepped its authority in applying RFRA to the states and that RFRA could only apply to actions of the Federal government. The Court’s reasoning was that the Court has the sole power to define the rights guaranteed by the Fourteenth Amendment and that RFRA was not “congruent and proportional” to the Smith decision. As a result of Boerne, states either had to pass their versions of RFRA or have none at all. As a result, people who claim that state laws impede on their “free exercise” of religion may have either full or sparse protection depending on their state.
Although Boerne significantly limited the reach of RFRA, religious exercise rights have been running into conflict with Federal legislation with the passage of the contraceptive mandate portion of the Affordable Care Act (Obamacare). Last year, the Supreme Court ruled that RFRA protections also applied to secular closely-held corporations in Hobby Lobby, and the recent Zubik case which the Court decided to send back for further negotiation also tested the limits of RFRA.
The intention of HR 5272, also known as the “Do No Harm Act,” is to clarify that RFRA cannot be used to “harm” others either directly or with a dignitary harm. It would limit RFRA to things such as the right to wear religious garb and observe religious holidays.
The bill would effectively put an end to the RFRA rights of corporations such as Hobby Lobby to refuse to provide insurance coverage for contraception and the rights of organizations that receive government grants to skirt anti-discrimination laws.
Given the current make-up of Congress, the bill has little chance of passing this year, but it does raise a signal that RFRA as currently interpreted is not on solid ground.
Bill Tracking – H.R. 5272 “Do No Harm Act” (114th Congress)
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