On Nov. 16, 1993, President Bill Clinton signed the Religious Freedom Restoration Act (RFRA) after almost-unanimous approval by Congress. Only three nay votes were cast.
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. However, that barrier is systematically being weakened today.
Last Fall, 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 Democrat agenda.
A dozen senators — including presidential hopefuls Sens. Elizabeth Warren (D-Mass.), Kamala Harris (D-Calif.), and Bernie Sanders (I-Vt.) — introduced this measure (H.R. 3222) which would strip away RFRA faith-based rights pertaining to abortion, LGBT issues, and marriage.
The First Amendment to the Constitution provides multiple protections for religious freedom. The Free Speech Clause protects the right to express beliefs and opinions, including religious ones. The Free Exercise Clause protects living your life according to the teachings of your faith.
The turnaround dramatizes how culture and politics have changed in 25 years. Secular values have been given priority and religious freedoms have been narrowed.
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.
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 chairman of the House Judiciary Committee, Rep. Jerrold Nadler, D-N.Y. That committee would be in charge of approving the undoing of RFRA, should these proposals prevail.
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 passed its 25th anniversary last fall, most Americans don’t know about this aggressive effort to amend RFRA into oblivion. One consequence of last 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 keep trying.
For instance, in may of this year, the House passed a bill it dubbed the Equality Act (236-173), which would broaden the definition of protected classes to include sex, sexual orientation and gender identity. The House bill passed with the support of all House Democrats, but is unlikely to be taken up by the Republican-controlled Senate.
It does not matter if people of faith are sincere in their love for people who disagree with them on those issues or go the extra mile to avoid causing offense. The political elites have decided that everyone must adhere to the government-approved orthodoxy on these social issues, and therefore legal protections that shield people of faith must be stripped away.
This country was founded on religious liberty, and we believe it will ultimately lead the way in repudiating those freedoms. Our best advice? Shun politics as we “wait on the Lord”, and study your Bible.
God knows what is best for us.