The ‘Do No Harm Act’ Could Help Prevent Discrimination on Religious Grounds, But Will Congress Ever Vote on It?

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Commentary Law and Policy

The ‘Do No Harm Act’ Could Help Prevent Discrimination on Religious Grounds, But Will Congress Ever Vote on It?

Kira Shepherd

If Congress doesn’t pass the Do No Harm Act and take a proactive step toward preventing the Religious Freedom Restoration Act from being interpreted in overly broad and harmful ways, the number of people hurt by the federal law will only continue to grow.

Congress is back in session and many advocates and lawmakers are watching the congressional calendar to see when bills that further their causes will be up for a vote. One bill of particular interest to LGBTQ and reproductive rights advocates is the “Do No Harm Act.” Introduced last May by Reps. Joseph Kennedy III (D-MA) and Bobby Scott (D-VA), the act would ameliorate the recent stream of anti-LGBTQ and anti-reproductive justice laws that discriminate in the name of religion.

Specifically, it would amend the federal Religious Freedom Restoration Act (RFRA). RFRA was written by its co-sponsors to protect religious minorities, but today it is used by the religious right to discriminate against LGBTQ people. Just last month, for the first time ever, RFRA was used as a defense in the employment discrimination case Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, allowing an employer to fire a transgender woman for wanting to dress in a skirt suit.

If Congress doesn’t pass the Do No Harm Act and take a proactive step toward preventing RFRA from being interpreted in overly broad and harmful ways, the number of people hurt by the federal law will only continue to grow.

The Do No Harm Act aims to restore RFRA to its original purpose by preserving the law’s power to protect the religious liberty of individuals, while at the same time ensuring that the law is not used to harm third parties in the name of religion. For example, the act would prevent RFRA from being used to trump non-discrimination laws and/or deny employees access to health care.

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A couple years ago, the U.S. Supreme Court’s overly broad interpretation of RFRA in Hobby Lobby found that certain for-profit entities could avoid compliance with a requirement in the Affordable Care Act ensuring contraceptive coverage at no cost to their employees, by claiming a religious objection to doing so. After Hobby Lobby, many feared an increase in the number of people and institutions that would use RFRA and other religious exemption laws to limit the rights of third parties. Equal Employment Opportunity Commission v. Harris Funeral Homes is a perfect example of how the Hobby Lobby ruling has drastically expanded RFRA’s intended reach, to potentially obstruct civil rights laws that were written to prevent workplace discrimination.

The Do No Harm Act would also deal a blow to individuals or institutions hoping to use religion as a justification for discrimination against people of color, a group less talked about in this context but one that stands to suffer great harm from some religious accommodation laws.

Let’s take the latest religious exemption case heard by the Supreme Court, Zubik v. Burwell, as an example of how some religious exemptions can cause great harm to communities of color. The plaintiffs in Zubik were nonprofit religious organizations that refused to comply with the accommodation the government currently provides for faith-based entities that have religious objections to providing contraception coverage. These employers may notify either the U.S. Department of Health and Human Services or their insurer of their religious objection to contraceptive coverage. The insurer itself then must provide the contraceptive coverage to the employees at no additional cost to either the enrollees or the objecting organization.

Last May, the Court decided to punt this case back to the lower courts to work out a solution. If the plaintiffs in Zubik had won, thousands of women of color who work at religious nonprofits—including universities, hospitals, and social service organizations—would have been stripped of their right to insurance coverage for contraception at no additional cost.

The nursing home Little Sisters of the Poor Home for the Aged in Denver, Colorado, was one of the employers that challenged the contraception requirement in Zubik. The majority of people who provide direct care services at nursing homes across the nation are people of color, and this is likely the case for the Little Sisters of the Poor nursing home.

As I’ve written previously, the ultimate outcome in Zubik will have major ramifications for women of color, since lack of access to quality reproductive health care plays a large role in the overall health disparities faced by communities of color today.

The threat to communities of color posed by overly broad interpretations of religious accommodation laws doesn’t end at Zubik. The advocates of overly broad protections want to be excused from complying with a host of generally applicable laws (like anti-discrimination laws), even if doing so would impose a serious harm on other people. The potential for third-party harm here is real, and could include the denial of adequate health care, housing, equal opportunity in the workplace, or to have one’s marriage universally recognized as valid.

To be sure, the Do No Harm Act isn’t a silver bullet. While it would prevent third-party harms at the federal level, it would not protect individuals who live in states that have religious liberty laws. Many of these “mini-RFRAs” provide religious objectors greater freedom to discriminate against LGBTQ individuals and other groups than the federal RFRA. But the act can be used as a tool by legislators and advocates hoping to push back against many of the religious exemption bills that have been popping up in state houses across the country.

Take, for example, Georgia’s HB 757, thankfully vetoed by Republican Gov. Nathan Deal, which would have allowed a caterer, a rental hall, a photographer, and even a county clerk or judge to refuse services not only to same-sex couples getting married, but to interracial and interfaith couples as well. The bill sought to strip numerous citizens of basic rights, stating that the government “shall not substantially burden a person’s exercise of religion even if the burden results from a law, rule, regulation, ordinance, or resolution of general applicability.”

The introduction of the Do No Harm Act by two Democratic members of Congress, and the string of recent lawsuits against multiple state laws—including Mississippi’s HB 1523, which challengers of the legislation said would have discriminated against LGBTQ couples on the basis of religion—mark a shift to the offensive for those who seek to create a reasonable balance between religious liberty and other fundamental rights, including equality. While LGBTQ and other advocates have been playing defense in state legislatures across the country, the bill represents the need for proactive legislative measures to be taken in the fight for meaningful and sustainable anti-discrimination laws and protections for all citizens.

Editor’s note: An earlier version of this piece appeared at the Public Rights/Private Conscience Project Blog.