In the last two months before the election, 50 House Democrats became new cosponsors on a bill gutting the 25-year-old Religious Freedom Restoration Act. That brought the total to 172 House Democrats, a solid majority of their party, who now support H.R. 3222. They are ready to undo RFRA as a prominent part of the agenda as their party takes control of the House.
H.R. 3222 would declare that religious freedoms must yield when they run counter to the LGBTQ agenda or to other progressive causes such as abortion rights. Pushing this are progressive groups which claim that religious beliefs are just a cover for discrimination, bigotry, and hate.
It’s all an about-face from Nov. 16, 1993, when President Bill Clinton signed RFRA after almost-unanimous approval by Congress. Only three nay votes had been cast.
The turnaround dramatizes how culture and politics have changed in 25 years. Secular values have been given priority and religious freedoms have been narrowed.
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. That forms a barrier against laws and policies that undercut religion.
Lawmakers now working to negate RFRA want to avoid accusations that they would fully repeal it. Instead, they would create a long list of policies and priorities to which RFRA does not apply, thus shrinking its protection of religious freedom.
This is embodied in H.R. 3222, sponsored by Rep. Joseph Kennedy, D-Mass., and 170 other House members, all Democrats, plus the companion Senate bill (S. 2918), authored by Sen. Kamala Harris, D-Calif., with 28 more Democrat senators as cosponsors. They call both of these the “Do No Harm Act.”
One of the cosponsors is the anticipated incoming chairman of the House Judiciary Committee, Rep. Jerrold Nadler, D-N.Y. That committee would be in charge of approving the undoing of RFRA.
Both House and Senate versions create an itemized list of exemptions from RFRA’s protection. Instead of directly attacking the First Amendment’s freedom of religion, they would designate that RFRA’s religious safeguards are inferior to multiple things including protections for sexual orientation, gender identity, and abortion.
In short, an explicit constitutional right would be declared less important than other claims never mentioned in the Constitution and often not even legislated by elected officials.
This repeal-in-all-but-name of RFRA, according to advocates, also will reverse 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.
Many are reversing their original 1993 support for RFRA. An example is the ACLU. As its deputy legal director now writes, “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.”
State-level versions of RFRA are also being attacked. 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.
As RFRA reaches its 25th anniversary, most Americans don’t know about this aggressive effort to amend RFRA into oblivion. One consequence of this year’s elections is that the threat has become very real.
Fortunately, RFRA’s silver anniversary has a silver lining, namely that the Senate is very unlikely to approve any legislation gutting it. But the dark cloud remains because those who oppose RFRA will be emboldened by action in the House, and they will keep trying.
Former Rep. Ernest Istook, R-Okla., now teaches political science at Utah Valley University.
