Twenty-five years ago this month, Congress approved the Religious Freedom Restoration Act, or RFRA, championed by Sen. Orrin Hatch, R-Utah, as principal Republican sponsor and signed by President Bill Clinton on Nov. 16, 1993. Approval was near-unanimous; only three nay votes were cast in Congress. Now one political party has mostly abandoned RFRA.
Over 200 Democrats in Congress (and zero Republicans) are pushing legislation to undo the protections for religious freedom. Even before they take control of the House in January, 172 Democrats now co-sponsor a bill to gut RFRA. And so do 29 senators, also all Democrat. The reversal dramatizes how American culture and politics have changed in 25 years. Secular values take priority as religious freedom is narrowed. The bill is HR3222 in the House (and S2918 in the Senate). Each avoids the notoriety of actually repealing RFRA, but declares that RFRA’s protection of religious freedoms do not apply whenever it runs counter to the LGBT agenda or to other progressive causes such as abortion rights. Backing this are progressive groups that claim that religious beliefs are just a cover for discrimination, bigotry and hate. RFRA uses a simple approach to enforce the First Amendment’s protection of free exercise of religion. RFRA states that no federal law or policy can be allowed to substantially burden anyone’s exercise of religious freedom — unless government can prove a compelling interest to justify the interference.
Curiously, when Sen. Hatch was the Republican champion of RFRA, the lead Democrat sponsor was the late Sen. Ted Kennedy, D-Mass. Now his grand-nephew, Rep. Joseph P. Kennedy, III, D-Mass., is the main sponsor of gutting RFRA, using what supporters label the “Do No Harm Act.”
A prominent co-sponsor is the anticipated incoming chairman of the House Judiciary Committee, Rep. Jerrold Nadler, D-N.Y. That committee would be in charge of considering the legislation.
Both HR3222 and its Senate version create an itemized list of exemptions from RFRA’s protection. Instead of directly attacking freedom of religion, they specify that RFRA’s religious safeguards do not apply to multiple things such as protections for sexual orientation, gender identity and abortion.
In short, an explicit constitutional right would be declared inferior to other claims that are never mentioned in the Constitution, and often not even legislated by elected officials.
According to advocates, this repeal-in-all-but-name of RFRA will also reverse the religious freedom protections of the Supreme Court’s Hobby Lobby and Masterpiece Cakeshop decisions.
Endorsing groups include the American Civil Liberties Union, Americans United for Separation of Church and State, the Human Rights Campaign, Center for American Progress, Lambda Legal, NAACP, NARAL, National Center for Transgender Equality, National Organization of Women and Planned Parenthood.
The ACLU exemplifies those reversing their original 1993 support; its deputy legal director claims, “today RFRA is being used as a vehicle for institutions and individuals to argue that their faith justifies myriad harms — to equality, to dignity, to health and to core American values.”
One consequence of this fall’s elections is that the threat to RFRA has become very real.29 comments on this story
Under similar attack are state-level versions of RFRA. Those were enacted in 21 states after the U.S. Supreme Court in 1997 ruled that RFRA protects only against intrusive laws on the federal level. There is a silver lining as RFRA reaches its silver anniversary, namely that the Senate is very unlikely to approve gutting legislation regardless of what happens in the House. But the dark cloud is that those who oppose RFRA are now emboldened and likely will push harder than ever to end the protection of religious freedom.