A lot has changed in how Californians think about religious liberties in the past 25 years. In 1993, liberals and conservatives alike were outraged when the Supreme Court ruled against two Native American workers who had been fired for testing positive for peyote, a hallucinogen commonly used in their religious ceremonies.
A broad coalition – almost inconceivable today – made up of the ACLU, the Christian Legal Society, the American Jewish Congress, the Baptist Joint Committee for Religious Liberty, the National Association of Evangelicals, and the Traditional Values Coalition joined forces to support the Religious Freedom Restoration Act which was then pending in Congress. The bill passed the
House and Senate readily and was quickly signed into law by President Bill Clinton.
At the time, the debate in Congress focused primarily on how to protect minority religious practice from laws that would substantially interfere with such practice, such as ensuring Muslim firefighters could wear beards or Jewish children could wear yarmulkes in public school.
But in the intervening years, far right religious conservatives have successfully used the Religious Freedom Restoration Act, commonly known as RFRA, in several high-profile court cases including Hobby Lobby and Harris Funeral Homes, to deny services to LGBTQ individuals, defend employment discrimination against LGBTQ people, limit employee access to FDA- approved contraception through employer- sponsored health insurance, and attempt to avoid court testimony about alleged child labor and abuse.
The Trump Administration has gone many steps further to weaponize the ability of individuals and institutions opposed to equality to cite their religious beliefs and moral objections to providing services to people of whom they disapprove.
Attorney General Jeff Sessions laid the groundwork for the right to discriminate when he issued a government-wide memorandum in response to President Trump’s April 2017 “Religious Liberty” Executive Order. The memo broadly interpreted the religious freedom protections of RFRA.
Similarly, the Department of Health and Human Services recently proposed a rule that would broaden current exemptions for health providers who do not want to provide services or treat people if they have a religious or moral objection to doing so. And HHS’s Office for Civil Rights established a new “Conscience and Religious Freedom” division earlier this year that would protect medical providers that illegally discriminate against patients based on moral or religious objections.
Against this backdrop of government-sanctioned discrimination and, undoubtedly with an eye toward the Supreme Court’s impending decision in the Masterpiece Cakeshop case, Sens. Kamala Harris (D-CA), Patrick Leahy (D-VT), Mazie Hirono (D-HI), Ranking Member of the Senate Judiciary Committee Dianne Feinstein (D-CA), and a number of other Senate Democrats introduced the ‘Do No Harm Act’ on May 22, fittingly Harvey Milk Day, the day set aside to commemorate the slain gay San Francisco Supervisor.
The Senate bill is companion legislation to the ‘Do No Harm Act’ introduced in July 2017 by in the House by Reps. Joe Kennedy (D-MA) and Bobby Scott (D-VA), that would clarify that compliance with federal laws protecting civil rights and other important legal rights cannot be undercut by the Religious Freedom Restoration Act.
Specifically, it would prevent RFRA from being used to obtain exemptions from federal laws including:
• Protections against discrimination or the promotion of equal opportunity, such as those provided under the Civil Rights Act of 1964 and other law;
• Labor laws covering wages, benefits, collective bargaining, and worker protections;
• Protections against child abuse and exploitation;
• Access to, information about, referrals for, provision of, or coverage of any healthcare item or service;
• Goods or services to be provided to beneficiaries through government contracts, grants, and cooperative agreements; and
• Public accommodations and the full and equal enjoyment of goods, services, benefits, facilities, privileges, and advantages provided by government.
At the same time, RFRA continues to provide appropriate protections for religion. As Harris said in her statement: “The freedom to worship is a founding principle of this nation as well as the right to live free of discrimination or fear that one’s civil rights will be undermined because of race, gender, sexual orientation, or gender identity,” she wrote. “The Do No Harm Act will ensure we protect both these rights for all.”
Equality California is working with lawmakers and partner organizations, notably the ACLU and Americans United in Washington, D.C. and across the country to block attempts to use imagined threats to religious liberty as an excuse to discriminate against millions of Americans.