Ethics Opinion

The Religious Freedom Restoration Act is discriminatory. Let’s fix it

Demonstrators gather at Indianapolis' Monument Circle on March 28, 2015, to protest a religious freedom bill signed by Indiana Gov. Mike Pence. More than 2,000 people gathered at the Indiana capital to protest the bill, saying it would promote discrimination against individuals based on sexual orientation. Photo courtesy of REUTERS/Nate Chute *Editors: This photo may only be republished with RNS-MELLING-OPED, originally transmitted on May 18, 2016.

(RNS) When Congress passed the Religious Freedom Restoration Act in 1993, the American Civil Liberties Union supported it because we believed it would provide important protections for people to practice their faith.

Having fought for religious liberty for decades, we were troubled that the interpretation of the Constitution at the time did not sufficiently protect minority faiths. Over the years, we have used RFRA to fight for religious rights, most recently on behalf of a Sikh student, Iknoor Singh, who was barred from entering the Army Reserve Officers’ Training Corps unless he cut his hair, shaved his beard and removed his turban.

But 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.  For example:

  • In 2014, a federal magistrate judge cited RFRA in ruling that a member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints could not be required to cooperate in an investigation of child labor law violations. (Church leaders were accused of removing children from school and forcing them to harvest pecans on a private ranch, without pay, for eight hours a day.)
  • The Catholic Medical Association in Michigan is using RFRA to argue that Catholic hospitals cannot be required to provide abortions in case of emergencies.  (The U.S. Conference of Catholic Bishops claims that even though it receives federal money to provide services to unaccompanied immigrant minors, RFRA justifies its refusal even to inform unaccompanied immigrant minors who are pregnant that abortion is an option.)
  • Religiously affiliated nonprofit organizations recently argued before the Supreme Court that RFRA is violated if they are required to take the simple step of notifying the government that they object to providing insurance coverage for contraception to their employees. (On Monday, the court sent the case back down to lower courts to reconsider.)

Many states are looking to RFRA as a model for similar legislation, with proponents often saying the measure is necessary so anyone, including businesses, may for reasons of faith refuse to provide services for same-sex couples.

In all these cases, people suffer harm. Yet causing harm to others is not what religious liberty is about.

On Wednesday (May 18), Congress introduced legislation to fix RFRA — to bring the law back into line with its original intent. The “Do No Harm Act,” if passed, would amend RFRA to ensure that federal law protects religious liberty but does not let religion be used — or misused — to harm others.

It would ensure that RFRA cannot be used to defeat protections against discrimination, to skirt wage and labor protections, to avoid compliance with laws protecting against child abuse, or to thwart access to health care guaranteed by law.

We recognize some people’s heartfelt beliefs may conflict with the law. Business owners who believe marriage is the union between a man and a woman may not want to serve same-sex couples, and company owners may object to their insurer providing employees insurance coverage for contraception.

But our path forward may be easier if we look backward for guidance.  In decades past, businesses and schools went to court to resist racial integration. Religious schools argued for the right to pay women less than men because, consistent with their faith, men were the heads of households. As a nation, we said no. Religion couldn’t be used to discriminate and to harm a person’s dignity, equality or opportunity.

The bill introduced in Congress today asks us to do the same. As Georgia Gov. Nathan Deal said in vetoing a state RFRA bill earlier this year, “I do not think we have to discriminate against anyone to protect the faith-based community.”

(Louise Melling is deputy legal director of the American Civil Liberties Union)

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  • Better yet, repeal RFRA and enforce 1st Amendment freedoms vigorously and absent Christian privilege garbage.

  • It depends on what you mean by “harm.”
    Some may say dismembering a child in the womb is causing harm.’

  • Today what is called “discrimination” is a person of faith holding a biblical position, the secular disagreeing and passing “anti-discrimination” laws to make it criminal to maintain those Christian beliefs.

  • No, holding a so-called biblical opinion is not what makes it discrimination. That’s just the story you tell yourselves so that you can pretend you are being persecuted.

    Trying to use the force of law to allow discrimination on the basis of religious belief– something that is forbidden at every level of government– is what makes it religious discrimination. Using the force of law to harm people you disapprove of is what makes it religious discrimination.

    Claiming that you have a special right to discriminate against gay people because you believe homosexuality is a sin is what makes it discrimination. It is VERY TELLING that you ask for an exception to the laws which governs all of us in just this one instance– treating gay people the same way you treat all of the rest of the people you believe are going to burn in hell for not believing what you do.

    And no one is trying to criminalize your religious belief. When gay people were finally included in the hate crimes act a few years ago, a number of so called Christian so called pastors were claiming that the hate crimes law criminalized them. And they were going to prove it by repeating their usual hatred garbage in public at a planned rally. Much to their disappointment, not one person could possibly have cared any less than they already didn’t.

    All anti discrimination laws do is remove the permission you give yourselves to treat gay people badly. It is very telling again that despite their being several hundred thousand same sex marriages in this country, only a handful– maybe 20– of super-duper Christians have demonstrated that they are neither kind, polite, nor smart.

  • Not at all. What you call a “biblical position” is merely discrimination with a religious excuse. Simply trying to use religion to pretend malicious harmful acts which are normally considered legally, ethically and morally unacceptable are somehow OK because you claim “God says so”.

    If your Christian belief compels you to attack others as you claim, then it is not worth protecting under the color of law. Nobody has to be compelled to live according to the dictates of your faith.

  • That is because you are not on the receiving end.

    Just like all those people who were denied goods and services because of their race were not harmed. They had “separate but equal” facilities to call upon.

    Its funny how easily one form of bigotry and discrimination is interchangeable with others. You are even using the same arguments segregationists tried 50 years ago.

  • Denial of goods and services due to prejudice is a legally recognized harm. I guess bearing false witness is not a sin in your religion.

  • This isn’t about religions, races, sexes, spouses, ages, abilities, classes, or cultures. It’s only about boundaries. It’s about trespass. It’s about “us” trying to ruin “their” lives instead of running our own.

    Don’t believe in gay marriage? Then don’t have one.

    Don’t believe in abortion? Don’t have one.

    Want to pick & choose your customers? Form a co-op.

    Want to impose your beliefs on strangers? Look up “bully”.

    Want to judge other people’s lives? Look up “self-exaltation”.

    Want to restrict the rights of your equals? Look up “psychopath”.

    It’s all about how we treat each other. This isn’t about their choices. It’s about ours.

  • Sorry, but you DO want to tell people how to conduct their lives.

    Religious and private institutions can set their own rules, just like liberals can.

    The ACLU doesn’t get to force their cosmopolitan beliefs on the rest of us.

  • Sorry, but refusing to hire a black person in a religious school is one thing.

    Refusing to hire a so-called “married homosexual” is quite another.

    Private sexual behavior does not Trump the 1st Amendment to the Constitution. Regardless of what the ACLU wants.

  • Really ? So a Catholic Church refusing to “marry” 2 lesbians is denying services ?

    Interesting……..

  • “Religious and private institutions can set their own rules…”

    …For their own members, of course. After all, in the U.S., people are free to choose (and rechoose) their religions, private clubs, co-ops, etc.

    But, regardless of the specific religious or existential beliefs, one’s beliefs bind oneself, not one’s neighbors. And, in areas of public accommodation — e.g., outside one’s home and place of worship — in these United (emphasis) States, when it comes to denying one’s legal equals their rights, as if they are second-class citizens, that is a different matter entirely. That’s what the proposed “Do No Harm Act” addresses.

    All of the above is why I often stress the importance of respecting other people’s spiritual/existential boundaries, beliefs, bedrooms, privacy, equality, etc.

  • Sorry, but that ACLU nonsense is about imposing THEIR beliefs on others. Not gonna happen.

    “Public accommodation” laws have never applied to small businesses and/or religious or private institutions. You do not get to force your beliefs or behaviors onto them.

    The ACLU is a left-wing bunch of frauds, accurately described by a former Attorney General as a “lobbyist for criminals.” They have sued to revoke the tax-exemption of the Catholic Church and also to force Catholic hospitals to perform abortions.

    So much for religious tolerance.

  • The right to religious freedom is protected under the 1st Amendment.

    Just as liberals reserve the right to discriminate — affirmative action, forced busing, racial quotas, gender preferences — so do the rest of us.

    Touche !

  • Re FrankieB’s comment that ” ‘Public accommodation’ laws have never applied to small businesses and/or religious or private institutions.”:
    Do you recall America’s history regarding public accommodations and African Americans?

    I came across the following quote some time ago. I wish I had saved the source as well as the citation — I would love to thank them! — but it is the best advice I’ve come across on how to distinguish between the oppressed and the oppressor when it comes to religion:


    It seems like this election season ‘religious liberty’ is a hot topic. Rumors of its demise are all around, as are politicians who want to make sure that you know they will never do anything to intrude upon it.
    I’m a religious person with a lifelong passion for civil rights, so this is of great interest to me. So much so, that I believe we all need to determine whether our religious liberties are indeed at risk. So, as a public service, I’ve come up with this little quiz. I call it ‘How to Determine if Your Religious Liberty Is Being Threatened in Just 10 Quick Questions.’ Just pick ‘A’ or ‘B’ for each question.

    1.My religious liberty is at risk because:
    a.I am not allowed to go to a religious service of my own choosing.
    b.Others are allowed to go to religious services of their own choosing.

    2.My religious liberty is at risk because:
    a.I am not allowed to marry the person I love legally, even though my religious community blesses my marriage.
    b.Some states refuse to enforce my own particular religious beliefs on marriage on those two guys in line down at the courthouse.

    3.My religious liberty is at risk because:
    a.I am being forced to use birth control.
    b.I am unable to force others to not use birth control.

    4.My religious liberty is at risk because:
    a.I am not allowed to pray privately.
    b.I am not allowed to force others to pray the prayers of my faith publicly.

    5.My religious liberty is at risk because:
    a.Being a member of my faith means that I can be bullied without legal recourse.
    b.I am no longer allowed to use my faith to bully gay kids with impunity.

    6.My religious liberty is at risk because:
    a.I am not allowed to purchase, read or possess religious books or material.
    b.Others are allowed to have access books, movies and websites that I do not like.

    7.My religious liberty is at risk because:
    a.My religious group is not allowed equal protection under the establishment clause.
    b.My religious group is not allowed to use public funds, buildings and resources as we would like, for whatever purposes we might like.

    8.My religious liberty is at risk because:
    a.Another religious group has been declared the official faith of my country.
    b.My own religious group is not given status as the official faith of my country.

    9.My religious liberty is at risk because:
    a.My religious community is not allowed to build a house of worship in my community.
    b.A religious community I do not like wants to build a house of worship in my community.

    10.My religious liberty is at risk because:
    a.I am not allowed to teach my children the creation stories of our faith at home.
    b.Public school science classes are teaching science.

    Scoring key:
    If you answered ‘A’ to any question, then perhaps your religious liberty is indeed at stake. You and your faith group have every right to now advocate for equal protection under the law. But just remember this one little, constitutional, concept: this means you can fight for your equality — not your superiority.
    If you answered ‘B’ to any question, then not only is your religious liberty not at stake, but there is a strong chance that you are oppressing the religious liberties of others. This is the point where I would invite you to refer back to the tenets of your faith, especially the ones about your neighbors.
    In closing, no matter what soundbites you hear this election year, remember this: Religious liberty is never secured by a campaign of religious superiority. The only way to ensure your own religious liberty remains strong is by advocating for the religious liberty of all, including those with whom you may passionately disagree. Because they deserve the same rights as you. Nothing more. Nothing less.

  • I don’t understand why you emphasize “the ACLU” in your replies to me. I’ve said nothing about the ACLU, and I’m speaking for myself, not them.

    Please also see my other response to your statements in the main conversation.

    It’s entirely possible that our beliefs irrevocably oppose each other regarding how we treat our equals; in fact, you may not even believe that people who don’t subscribe to your beliefs are your equals. I’ve seen no willingness on your part to share respect with them, and I wonder whether you actually value disrespecting them and denying their rights as paying customers in the for-profit marketplace. If that is the case, then there’s no point in discussing it further, and I’ll simply wish you well now.

  • So what you are telling me is you are a bigot who is so inadequate professionally that they are threatened by the socially disadvantaged.

    Loser.

  • Nope. Because they are not engaging in commerce. Unless your church is really a storefront committing tax fraud, it is not in the business of providing goods and services.

  • No it isn’t. Bigotry doesn’t have rational excuses. It’s nature doesn’t change with different targets. The arguments made against gays now are exactly the ones they made for legalized racism 50 years ago. Irony is lost on haters.

    The 1st amendment is not license to harm others in service if your faith. Your religious right to discriminate is the same as my religious right to commit human sacrifice. Non existent.

  • Really ? Then you are going to have to close down most religious schools, colleges, etc.

    Sorry, but just like religions are free to ‘discriminate’ by not ordaining women, they are free to ‘discriminate’ by not approving of homosexuality.

    You want to use the government to force approval of homosexuality. That much is clear.

  • Sorry, but just as liberals reserve the right to ‘discriminate’ against that which they dislike, so do the rest of us, too.

    Bigotry is irrational hatred or dislike. Not accepting homosexuality, feminism, or any other liberal “ism” is like saying I am bigoted against communism or socialism because I refuse to accept those practices, too.

  • Every time a religious person gets special privileges I don’t get, I am harmed. So is the fundamental principle of equality under law. We don’t need cute nuances to keep lawyers busy and well-paid — RFRA should be repealed, period.

  • Awwww poor baby thinks that not getting to treat people like garbage with legal sanction is being oppressed. Do you need a diaper change?

  • You seem to think religious institutions are some form of commerce. Hence such a silly tangent. That is a far more reductive view of such places than I was willing to go with. If you want to claim churches purpose is to sell you something go right ahead. But it is very disrespectful of religion.

  • Exactly…go work for someone who does offer birth control and doesn’t have offices and rooms with Crucifxes.

    You don’t get to tell a Catholic diocese or an order of nuns how to conduct their business.

  • BTW, I’m not blaming religions or their leaders. They’re not the legislators passing laws that unlawfully violate our great nation’s inviolable creed: Equal justice under the law.

    Beliefs, in and of themselves, never hurt anyone. They’re thoughts, obviously, not weapons. It’s what we do with them, and how we treat other people and their beliefs, that matters.

    Equality, respect, empathy, collaboration, sharing, learning, “Getting to Know You”, and humbly re-evaluating one’s own character accordingly, rather than “evaluating” others’ — these are virtues, not vices.

  • “Their beliefs” being that all people are entitled to live their lives in a sane fashion without being attacked or discriminated against by bigotry. With equal protection under the law.

  • Both actions likely are constitutionally protected, and that has nothing to do with RFRA or the ACLU.

  • Sorry, but I am not willing to water down core Constitutional freedoms (including the freedom to practice one’s religion) to force people to go against core religious beliefs. Our nation was founded on religious freedom period. No one is required to practice a religion. No one is required to live their lives by any imposed religious beliefs. All this language in editorials from this site is more an attack on traditional faith practices in favor of more contemporary faith practices.

    The one common thread in all these discussions, (abortion, birth control, bathroom use and so forth) is that there should be no limitations on how people behave. Ours is a nation of liberty and so this message resonates. But when you have to have the services of another person to practice your behavior, should a person have a right to compel another to behave in a manner congruent with your own choice and even force them to facilitate your own choice even if their religion tells us it is wrong. Having the freedom to make ones own decisions and behave as one desires is one thing, the ability to compel or enslave another to facilitate it is entirely another.

  • How so? And you seem to confuse a “right” with a “privilege”. The Constitution of the United States defines rights.

  • 1.My religious liberty is at risk because:
    a. I am not allowed to go to a religious service of my own choosing.
    b. Others are allowed to go to religious services of their own choosing.
    c. I must keep my faith practice at church and out of the public sphere.

    2.My religious liberty is at risk because:
    a.I am not allowed to marry the person I love legally, even though my religious community blesses my marriage.
    b.Some states refuse to enforce my own particular religious beliefs on marriage on those two guys in line down at the courthouse.
    c. I am required to provide services in violation of my religious beliefs for same gender weddings.

    3.My religious liberty is at risk because:
    a.I am being forced to use birth control.
    b.I am unable to force others to not use birth control.
    c.I am forced to provide for or facilitate the use of birth control.

    4.My religious liberty is at risk because:
    a.I am not allowed to pray privately.
    b.I am not allowed to force others to pray the prayers of my faith publicly.
    c.I am not allowed (or discouraged) from praying in public.

    5.My religious liberty is at risk because:
    a.Being a member of my faith means that I can be bullied without legal recourse.
    b.I am no longer allowed to use my faith to bully gay kids with impunity.
    c.I am afraid to speak of my religious beliefs in public because those who disagree attempt to impose power of me with dismissive terms like ____phobic or bigot.

    6.My religious liberty is at risk because:
    a.I am not allowed to purchase, read or possess religious books or material.
    b.Others are allowed to have access books, movies and websites that I do not like.
    c. I am not allowed (discouraged) from bringing my religious materials to school or work.

    7.My religious liberty is at risk because:
    a.My religious group is not allowed equal protection under the establishment clause.
    b.My religious group is not allowed to use public funds, buildings and
    resources as we would like, for whatever purposes we might like.

    8.My religious liberty is at risk because:
    a.Another religious group has been declared the official faith of my country.
    b.My own religious group is not given status as the official faith of my country.
    c.My religious group/views are demeaned by those in elected positions of influence and power.

    9.My religious liberty is at risk because:
    a.My religious community is not allowed to build a house of worship in my community.
    b.A religious community I do not like wants to build a house of worship in my community.
    c.My religious community is told to keep our faith hidden inside our building.

    10.My religious liberty is at risk because:
    a.I am not allowed to teach my children the creation stories of our faith at home.
    b.Public school science classes are teaching science.
    c.My children may not practice their faith on their own time or publicly express their faith at any time on school grounds.

    If you answer A or C then your religious liberty is most likely at risk.

  • Don’t believe in gay marriage? Then don’t have one. Don’t force me to make a living to facilitate yours.

    Don’t believe in abortion? Don’t have one. Don’t make me facilitate yours.

    Want to pick & choose your customers? Form a co-op. (see above)

    Want to impose your beliefs on strangers? Look up “bully”. Don’t impose your beliefs on me either or your bullying language like ________phobic or bigot.

    Want to judge other people’s lives? Look up “self-exaltation”. (The I guess we eliminate the criminal justice system since there is no right and no wrong.)

    Want to restrict the rights of your equals? Look up “psychopath”. Then stop restricting religious freedom and forcing people to be complicit in the behavior of others.

    It’s all about how we treat each other. This isn’t about their choices. It’s about ours. How is forcing a Christian or Muslim baker to violate his or her core beliefs about “their choices”. Is that not your choice to bring the weight of law, rhetoric and mass protest against them?

    Live and let live seems only to be good for the progressives. The conservatives must be squashed.

  • “You don’t get to tell a Catholic diocese or an order of nuns how to conduct their business.” – Says who, you? I can tell them, they won’t listen. The Catholic church sucks, there “rules” are not based on the bible.

  • Not at all. I don’t like prejudice IN religion. It is a waste of efforts and makes the world a worse place for everyone. If prejudice and bigotry is a central part of your religious belief, it deserves criticism.

    Too often people of low character assume calling a belief religious automatically makes it immune to criticism or opposition. It is simply admitting ones position is irrational, arbitrary and dogmatic in nature.

  • In reply to those who maintain that non-discrimination laws and rules, and changes in our society, violate their religious freedom (pardon my “Wow!”):

    Thank you for so effectively demonstrating the points that others and I have made about the need for government protections against for-profit businesses refusing to serve the public; and the need for that public to stand up to those who self-exalt, judge, bully others, and use psychological projection (“You’re restricting my rights!”) to blame others for what they themselves are doing.

    All those people you don’t want to serve are your equals; and our shared government’s job — and legitimate interest — is protecting their rights every bit as much as yours. Running a for-profit business is a privilege, not a right, and requires a business license permitting that business to operate in exchange for adhering to good old American values-driven rules, such as non-discrimination in providing public accommodations. And, Yes, I know some “hotly contested” legalities are still being worked out, but rest assured: these rules will protect more and more Americans as time goes by, until all Americans are protected.

    Meanwhile, consider the history of discrimination: the regular reruns of realizing that these-folks, those-folks, and th’other-folks are our equals. Sooner or later, enough folks are going to realize that ALL folks are our equals, and that your projected claims of “immorality”, “restricting rights”, and “violating beliefs” (about disrespecting your equals?!) are vainglorious cries of lies that have no place in our great nation of “E Pluribus Unum” — and that such two-year-old-acting criers should be ashamed of themselves, and should learn to share respect as other grownups do.

    Time for “Us” to stop getting ourselves all tangled up in hysteria over “Their” sex lives. It’s easy: just focus on living your own lives, follow the Golden Rule, and practice catching yourselves whenever you start heading down that deep-rutted detour of confusing self-righteousness for righteousness, and elitist ignorance for moral superiority. In no time at all, you’ll see how creepy it is — and how perverted it looks to others — for you to be dwelling on the sex lives of strangers.

    And don’t forget that humility and praying in private are virtues. And Biblical.

  • You want to place “limitations on how people behave” in regard to “abortion, birth control, bathroom use and so forth”? Really?

    All of the examples you cite (and I infer that gay sex is included under “and so forth”) are legal, done in private, and nobody else’s business — let alone a business’s business.

  • Regarding 8-c (“My religious group/views are demeaned by those in elected positions of influence and power”), I agree with you: Nobody’s religious or existential beliefs should be disparaged by others. I object to disrespectful antitheists as much as I object to disrespectful theists.

    And I wholeheartedly believe that an individual’s or group’s spiritual OR existential beliefs must never be allowed by “those in elected positions of influence and power” to dismiss, demote, or infringe upon the equally rightful beliefs, rights, lives, and private legal acts of others. Do you?

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