The Looming Harm of “Do No Harm”Kim Colby January/February 2022
Illustration by Mary Haasdyk
It has been a little more than 28 years since President Bill Clinton signed the Religious Freedom Restoration Act (RFRA) into law.1 An iconic photograph of the signing ceremony shows President Clinton surrounded by RFRA’s smiling supporters: then New York Democratic Representative and now Senate Majority Leader Charles Schumer; California Democratic Representative Don Edwards; Ohio Democratic Senator Howard Metzenbaum; Vice President Al Gore; Utah Republican Senator Orrin Hatch; and Oregon Republican Senator Mark Hatfield. Massachusetts Democratic Senator Ted Kennedy is not pictured, but RFRA remains a significant part of his legislative legacy, as he and Senator Hatch co-led RFRA’s passage in the Senate.
The photo captures a time when religious freedom enjoyed overwhelming bipartisan support, before special interest groups decided to make religious freedom and RFRA a political punching bag. RFRA’s bipartisan support was reflected in its passing the Senate by a 97-3 vote, and the House by a unanimous voice vote. The coalition of organizations supporting RFRA’s passage comprised 66 organizations from across the religious and political spectrum—ranging from the Christian Legal Society and the General Conference of Seventh-day Adventists to Americans United for Separation of Church and State; from the National Association of Evangelicals to the ACLU; from the Baptist Joint Committee to the American Jewish Committee; and five dozen other organizations representing diverse religious and political ideologies.2
An Essential Bulwark
RFRA was Congress’s response to the Supreme Court’s 1990 ruling in Employment Division v. Smith,3 a decision that left the free exercise clause in tatters. In Smith the Court abandoned the “compelling interest” standard the government had previously been required to meet when its action violated a citizen’s religious conscience. Smith held instead that religious individuals and institutions had to obey any law that violated their religious beliefs as long as the law was neutral and generally applicable, no matter how strong the religious claim or how weak the government interest. A government interest need not be compelling—merely asserted.
As a result of the Smith decision—and as heretical as it sounds—RFRA, not the free exercise clause, has been the primary guarantor of Americans’ religious freedom at the federal level for nearly three decades.4 Since its passage, RFRA has admirably performed its job of protecting Americans of all faiths.
In recent years the Supreme Court under Chief Justice Roberts has begun to revitalize the free exercise clause, but it has not yet overruled Smith. Until that happens, RFRA remains an essential bulwark for religious freedom against federal regulation. By its terms, RFRA requires that concrete criteria protective of religious freedom be applied to any federal government action that affects religious exercise. Federal agencies must be prepared to articulate compelling governmental interests not achievable by less-restrictive means, when their actions infringe citizens’ religious freedom.
RFRA Under Attack
As the linchpin of religious freedom, RFRA has attracted the ire of special interest groups. Upset that RFRA might sometimes protect religious individuals and institutions from government coercion in controversies involving abortion or LGBT interests, many of the same groups that were part of the original RFRA coalition have sought to dramatically weaken RFRA. Such an attack on RFRA is an attack on the religious freedom of all Americans.
A recent assault on RFRA comes in the guise of the deceptively misnamed Do No Harm Act.5 This legislation would remove huge swaths of federal law from RFRA’s religious freedom protections. Specifically, if enacted, the Do No Harm Act would subordinate Americans’ religious freedom to federal laws and regulations regarding:
discrimination or the promotion of equal opportunity
wages, benefits, and collective bargaining
child labor, abuse, and exploitation
health-care items and services (including abortions and gender transition surgeries)
government contracts, grants, and cooperative agreements
access to any government good, service, benefit, facility, privilege, advantage, or accommodation
Closing Court Doors
Unlike RFRA, the Do No Harm Act would limit the right of religious individuals and institutions to go to court to protect their religious exercise. And it is difficult to imagine a greater harm than this to religious citizens.
Under the Do No Harm Act, whenever religious exercise comes into conflict with federal laws and regulations, the religious individual or institution who has been harmed would lose the right previously guaranteed by RFRA to challenge the law or regulation in court. For practical purposes, the Do No Harm Act predetermines the outcome: the federal government wins, and religious freedom loses.
In stark contrast, RFRA does not predetermine whether the government or religious freedom wins in a case brought under RFRA. It simply provides religious claimants with access to the courthouse. After hearing all sides, a judge applies RFRA’s balancing test to determine whether religious freedom or the government wins on the facts of the particular case. And the reality is that during the past 28 years federal judges have ruled in favor of the government much more frequently than they have ruled in favor of religious claimants. To be sure, RFRA requires the judge to give significant deference to the religious claimant, but that is as it should be in a country whose unique contribution to humankind has been the recognition that religious freedom is an unalienable right to be shielded from government interference.
However, the proponents of the Do No Harm Act believe that religious exercise should rarely, if ever, win, no matter how strong the religious claim or how easily the government could accommodate the religious belief. At a minimum, the Do No Harm Act is uncharitable to religious Americans. At worst, it epitomizes some Americans’ hostility toward other Americans’ religious exercise.
Harm to Religious Minorities
In the early 1990s the RFRA coalition’s guiding principle was that RFRA would not choose winners and losers. Rather, all Americans of all faiths would be protected.
A number of so-called carve-outs—or exceptions—were sought during congressional deliberations before RFRA’s passage. For example, some organizations wanted a prolife carve-out regarding abortion, but the coalition rejected any exception to RFRA’s protections. The historic preservationists’ demand for a carve-out was likewise rejected. Similarly, the demand from state officials that RFRA not protect prisoners’ religious freedom met the coalition’s unwavering insistence that, like all other Americans, prisoners would be protected.
In other words, RFRA leveled the playing field for religious minorities. The Smith decision had made people of faith dependent on persuading Congress and executive agencies that their religious exercise should be exempted from conflicting federal laws and regulations. But this is an unworkable approach. Religious minorities often lack the political clout needed to obtain exemptions in legislation or regulations. By essentially layering an across-the-board religious exemption onto all federal laws and regulations, RFRA alleviated religious citizens’ dependence on legislators’ goodwill.
Crucially, RFRA’s supporters recognized that once one exception was made to RFRA, other exceptions would inevitably follow, rendering RFRA a nullity. For 28 years, therefore, Congress has resisted several attempts to create “just one carve-out” from RFRA’s protections.
The Do No Harm Act’s carve-outs would eviscerate RFRA. In many ways the Do No Harm Act represents a liberal wish list, but some conservatives also have their own list of pet government interests they think should override RFRA. The Department of Homeland Security has tried to exempt construction of a border wall. The Department of Defense has tried to exempt the military from accommodating certain religious exercises, such as the right of Orthodox Jewish and Sikh service members to wear religious headgear. The Drug Enforcement Agency has sought unsuccessfully to exempt enforcement of drug laws. If liberal and conservative demands for carve-outs are enacted, RFRA soon will cease to provide any meaningful protection for Americans’ religious freedom.
Fixing What Isn’t Broken
Quite simply, the Do No Harm Act is superfluous. Carve-outs to RFRA are unnecessary because by its own terms, RFRA is a balancing test. A judge balances the government’s interest against the individual’s or institution’s religious interest. If the government’s interest is compelling and furthered by the least-restrictive means, then the religious claimant loses. Therefore, wholesale exemptions to RFRA are not needed, because RFRA itself contemplates that RFRA claims will not always prevail.
And they don’t. While the RFRA standard gives religious freedom significant reinforcement, RFRA claimants more often than not lose in court, illustrating why the Do No Harm Act is a “solution in search of a problem.”6 RFRA’s “sensible balancing test,”7 by which a judge balances religious interests and governmental interests in a specific factual context, after hearing all parties, is far superior to the Do No Harm Act’s categorical and callous denial of religious accommodations.
Indeed, RFRA’s most important function may be that it equalizes the bargaining power between government officials and religious individuals and institutions. Without RFRA, federal officials have no duty to consider even a modest request for a religious accommodation. But RFRA incentivizes federal officials to at least meet with religious individuals or institutions, hear their stories, and work with them to arrive at an accommodation that respects religious freedom while achieving the government’s interest.
Unfortunately, too many members of Congress are misinformed about the real harm that passage of the Do No Harm Act would inflict on all Americans’ religious freedom. In the preceding Congress, H.R. 1450 garnered 215 cosponsors in the House, and its Senate counterpart, S. 593, gained 33 cosponsors.8 In this Congress, H.R. 1378 and S. 2752 currently have 140 cosponsors and 31 cosponsors, respectively.9 To date, only Democrats and Independents have cosponsored the Do No Harm Act.
Religious freedom is imperiled by this erosion of bipartisan support once exemplified by President Clinton, Senate Majority Leader Schumer, Senator Kennedy, and Senator Hatch. Instead, bipartisan support for religious freedom has been supplanted by partisan targeting of RFRA—and, through RFRA, the targeting of all Americans’ religious freedom.
1 Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et. seq.
2 Douglas Laycock and Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 210 n.9 (1994).
3 Employment Division v. Smith, 494 U.S. 872 (1990).
4 See Kim Colby, Symposium: Free Exercise, RFRA, and the Need for a Constitutional Safety Net, SCOTUSblog (Aug. 10, 2020), https://www.scotusblog.com/2020/08/symposium-free-exercise-rfra-and-the-need-for-a-constitutional-safety-net/.
5 H.R. 1378—117th Congress (2021-2022); S. 2752—117th Congress (2021-2022).
6 See, e.g., Stephanie H. Barclay and Mark L. Rienzi, “Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions,” Boston College Law Review 59 (2018): 1595, 1631-1646.
7 Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 439 (2006) (In RFRA, “Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.”).
8 H.R. 1450—116th Congress (2019-2020); S. 59—116th Congress (2019-2020).
9 H.R. 1378—117th Congress (2021-2022); S. 2752—117th Congress (2021-2022).