A new Congress could mean renewed threats to religious liberty. The leaders of the new Democratic majority in the House of Representatives have promised to prioritize legislation granting protected class status to LGBT Americans while also undermining the protections codified in the 1993 Religious Freedom and Restoration Act (RFRA).
In October, newly elected House Speaker Nancy Pelosi, D-Calif., said in a speech at Harvard University that the Equality Act, which would amend the Civil Rights Act of 1964 to include sexual orientation and gender identity as protected classes, would be among her top 10 pieces of legislation once she regained the gavel. “There is a certain kind of thinking we need to dispel,” she said.
The late Sen. Ted Kennedy, D-Mass., sponsored the original RFRA in 1993, and his nephew, Rep. Joseph Kennedy II, D-Mass., voted for it in the House. Now that religious freedom has fallen out of vogue, Rep. Joseph Kennedy III, great-nephew to Ted and son of Joseph II, is sponsoring the Do No Harm Act, which would amend RFRA “to protect civil rights and otherwise prevent meaningful harm to third parties, and for other purposes,” according to the bill’s summary.
Lawmakers drafted and overwhelmingly passed RFRA in response to a Supreme Court decision that sided against Native Americans who were fired from their jobs for smoking peyote as a spiritual practice. The law set up stricter standards for judging government violations of the First Amendment’s free exercise of religion clause. Simply put, the government shouldn’t punish people for practicing their religion unless it has a good reason.
Americans have relied on the law to protect them from government rules that violate their religious beliefs. In 2014, the family-owned retail chain Hobby Lobby successfully used RFRA to win an exemption from the contraceptive and abortifacient mandate in Obamacare. But the Do No Harm Act would prohibit exemptions from federal nondiscrimination laws on religious grounds. The government would have the power to enforce laws requiring accommodations for transgender and homosexual individuals even if the accomodations violated someone’s religious beliefs.
A substantive change to RFRA could open the door to revisit Supreme Court cases in which people used the law as a defense, including the Hobby Lobby case, Ernest Istook, a history and political science lecturer at Utah Valley University and a former congressman, told me.
The American Civil Liberties Union has sworn off using the federal RFRA as a defense, calling the bill discriminatory. Once a champion of religious liberty, the ACLU joins a chorus of activists in promoting LGBT nondiscrimination legislation at the expense of religious freedom and personal conscience.
While the Do No Harm Act and the Equality Act are unlikely to pass the Republican-majority Senate, Istook considered it “very likely” that the Do No Harm Act will be reintroduced and move forward in the House. The House and Senate versions of the bill had 173 and 31 Democrat co-sponsors, respectively, before being suspended at the end of the session, with neither bill earning Republican support.
Even without the votes to pass those bills, the constant drumbeat of the LGBT agenda—along with the character assassination of those who dissent—can erode the resolve of those who object to sexual orientation and gender identity policies because of their religious beliefs.
“[The Equality Act] signals that one side of the culture war wishes the total subjugation of the other,” wrote Denny Burk, a professor of Biblical studies at Boyce College, in an Oct. 29 blog post. “They will run roughshod over the religious consciences of their fellow citizens. And because public opinion have [sic] shifted dramatically in favor of LGBT rights over the years, eventually this bill, or one like it, will become law.”
Istook said if the Do No Harm or Equality acts did become law, the Supreme Court might still protect religious liberty.
“That could mean that the Supreme Court might reach the same conclusions, except this time base their ruling on the First Amendment rather than RFRA, which then would strengthen religious freedom even more strongly than … Hobby Lobby,” he said.