Congressional Democrats reintroduce the Do No Harm Act

While RFRA is intended to protect freedom of religion, backers of the Do No Harm Act amendment say it's been a double-edged sword.

Sen. Kamala Harris, D-Calif., at Politics and Eggs at Saint Anselm College in Manchester, New Hampshire, on Feb. 19, 2019.Brian Snyder / Reuters file

Congressional Democrats reintroduced on Thursday an amendment to the Religious Freedom Restoration Act (RFRA) that aims to ensure the 1993 legislation is not used to permit discrimination in the name of religion.

The Do No Harm Act states that RFRA “should not be interpreted to authorize an exemption from generally applicable law that imposes the religious views, habits, or practices of one party upon another.”

The measure — reintroduced by Rep. Joseph P. Kennedy III, D-Mass.; Rep. Bobby Scott, D-Va.; and Sen. Kamala Harris, D-Calif. — was first introduced in 2017 in response to the Supreme Court’s 2014 Burwell v. Hobby Lobby Stores decision. That landmark decision determined that under RFRA, for-profit companies could deny their employees insurance coverage for contraception if supplying such coverage was against the employer’s religious beliefs.

“We cannot be equal or free if our government grants select Americans a license to discriminate against their neighbors under the guise of religious freedom,” Rep. Kennedy said in a statement. “By passing the Do No Harm Act, we can reestablish the sacred balance between religious liberty and the personal liberties of those who have too often had their civil rights bargained away.”

RFRA was originally passed in 1993 in response to another controversial Supreme Court decision: Employment Division v. Smith. The case, which was decided in 1990, involved two Native American men who worked as private drug rehab counselors and were fired for ingesting peyote. Though the men argued they did so as part of religious ceremonies conducted by the Native American Church, the Supreme Court upheld their firing.

But while RFRA is intended to prevent the government from “substantially burdening a person’s exercise of religion,” backers of the Do No Harm Act amendment say RFRA has been a double-edged sword.

“Unfortunately, in recent years, bad faith interpretations of RFRA have been used to deny health care coverage for employees, claim exemptions to civil rights laws and impede justice in child labor and abuse cases,” Rep. Scott said in a statement.

Sen. Harris, in a similar statement, said religious freedom, which is guaranteed in the First Amendment of the U.S. Constitution, should not come at the expense of others.

“That First Amendment guarantee should never be used to undermine other Americans’ civil rights or subject them to discrimination on the basis of race, gender, sexual orientation or gender identity,” Harris stated.

Ian Thompson, senior legislative representative at the ACLU, cited a specific example where RFRA was used to discriminate against an individual: EEOC v. R.G. & G.R. Harris Funeral Homes. In this 2016 case, a federal court in Michigan ruled in favor of a funeral home that fired a transgender employee because of her gender identity. In July 2018, R.G. & G.R. Funeral Harris Homes petitioned the U.S. Supreme Court to review the case.

In addition to protecting civil rights on an individual basis, the Do No Harm Act would also overturn the Trump Administration’s recent waiver allowing faith-based foster agencies in South Carolina to deny services to same-sex and non-Christian couples.

Though the bill did not advance in Congress the first time it was introduced, it has received broad support from a host of LGBTQ and human rights groups, including the American Civil Liberties Union (ALCU), AIDS United, the Center for American Progress, Lambda Legal and the National Women’s Law Center.

“This administration has spent two years weaponizing religious liberty in its hostility against marginalized communities,” Ian Thompson, senior legislative representative at the ACLU, said in a press release. “It is now more important than ever for Congress to defend the American people from these attacks.”

The Human Rights Campaign (HRC), the nation’s largest LGBTQ civil rights organization, also urged Congress to advance the legislation on Thursday.

“The Do No Harm Act will preserve the core protections of RFRA while clarifying it cannot be used to violate essential non-discrimination protections, including for the LGBTQ community,” David Stacy, the group’s director of government affairs, wrote in a statement shared with NBC News.