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A group of U.S. House Democrats have reintroduced the Do No Harm Act, a bill to ensure that religious freedom is not used as a justification for discriminating against LGBTQ people, religious minorities, and others.
The bill, co-sponsored by U.S. Reps. Bobby Scott (D-Va.), Steve Cohen (D-Tenn.), Mary Gay Scanlon (D-Pa.), and Jamie Raskin (D-Md.), would clarify the intent of the federal Religious Freedom Restoration Act, which was passed in 1993 in an attempt to ensure that government action does not overly burden people’s religious freedom, as in the case of two people who lost their jobs after smoking peyote, a psychoactive drug that is incorporated into some Native American religious practices.
As written, RFRA states that the government “shall not substantially burden a person’s exercise of religion,” even if the burden results from a law that does not specifically target the said religion and is facially neutral.
Under RFRA, courts are expected to use the legal standard of “strict scrutiny” when determining whether a person’s right to practice their own religion had been violated by a law. The law provides an exception in cases where the government has a “compelling interest” in pushing a particular rule, provided that rule is enforced in the least restrictive way possible.
But since 1993, when Congress was primarily concerned about protecting the views of minority religions, the Religious Right has challenged laws that it believes infringes upon their religious beliefs, particularly in cases involving nondiscrimination laws with protections for LGBTQ individuals. In those cases, such as the Masterpiece Cakeshop case involving a baker who refused to bake a cake for a same-sex wedding, social conservatives have sought to justify refusing goods or services to LGBTQ individuals or organizations based on the premise that doing so infringes upon their personal beliefs opposing homosexuality or same-sex marriage.
LGBTQ advocates have argued that this use of RFRA to condone discrimination against LGBTQ people or religious minorities — as in a case involving a foster care agency’s refusal to place children with same-sex couples or non-Christians — is contrary to the spirit of the original law, and have sought, through the Do No Harm Act, to clarify that RFRA is not intended to condone discrimination against certain classes of people, while also preserving the act’s power to protect religious practice from overzealous government interference.
“The Do No Harm Act will protect and restore our country’s founding principle of religious freedom — that everyone should be free to practice their religion or no religion at all, as long as they do not harm others,” Rachel Laser, the president and CEO of Americans United, said in a statement.
“Despite the intent of the Religious Freedom Restoration Act to protect free exercise and religious minorities, some are misusing what they call ‘religious freedom’ to ignore nondiscrimination laws and deny people access to health care, jobs and government-funded services,” Laser added. “This exploitation of religious freedom especially harms LGBTQ people, women, religious minorities and the nonreligious by undermining their civil rights and equality.”
“Religious freedom is a fundamental American value, and protecting people of faith from discrimination is entirely compatible with protecting LGBTQ people from discrimination,” Alphonso David, president of the Human Rights Campaign, said in a statement. “The Do No Harm Act will preserve the core protections of the Religious Freedom Restoration Act while clarifying it cannot be used to violate essential non-discrimination protections, including for the LGBTQ community. Congress must advance the Do No Harm Act to prevent anti-equality activists from manipulating RFRA to try and justify discrimination against LGBTQ people and religious minorities.”
David Johns, the executive director of the National Black Justice Coalition, a civil rights organization that advocates on behalf of Black LGBTQ/same-gender-loving people, including those with HIV/AIDS, praised the reintroduction of the bill.
“The Do No Harm Act reasserts the constitutional balance of civil rights and religious freedom in the U.S. and is critically important now, given the actions by state legislatures allowing exemptions to civil rights laws based on one’s subjective ‘moral convictions.’ The Act affirms the belief that no one should be the victim of bias, discrimination, or hate crimes and those harms should not be hidden or dismissed. If anyone can be exempted from following civil rights laws, everyone can be exempted from following them.”
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