“Hey, doc, I’ve got this big tumor. Could you remove half of it for me?”
“Ok, squad, we’re down by a touchdown with a minute left in the game. Go out and get that field goal!”
“Dear Congress: Please pass a law protecting the voting rights of all Americans who were born on even-numbered days.”
This kind of thinking inspired Congressmen Joseph P. Kennedy III (D-MA) and Bobby Scott (D-VA) last month to introduce what they called the “Do No Harm Act,” to restrict some, but not all, of the lunacy misnamed the “Religious Freedom Restoration Act of 1993” (RFRA).
RFRA is most infamous for being the basis of the Hobby Lobby Supreme Court decision of 2014, which said that private employers with a hotline to God can refuse to provide their employees with certain forms of healthcare and can stick taxpayers with the tab for for providing those services instead. But it goes way, way further than that. RFRA invalidates every single federal law and regulation—every one—that “substantially burdens” the exercise of religion, unless the government can prove not only a “compelling interest” for the law, but also that it is the “least restrictive means” of achieving that interest.
What’s a “substantial burden?” Well, a fair reading of the recent Zubik opinion is that just having someone fill out a form saying “I don’t want to comply with that law” is a “substantial burden.” What’s a “least restrictive means?” Well, we know from Hobby Lobby that where money is involved (as it so often is), the “least restrictive means” involves having you and me pay the bill, rather than the God expert who’d prefer to keep his money in his pocket.
RFRA is the dumbest law on the books. In the rare cases where it arguably makes sense to allow people to follow their own moral convictions rather than the generally applicable law, there can be explicit, narrow exemptions in the law. That’s what we do for conscientious objectors to military service, or for individual healthcare personnel to avoid direct participation in an abortion where the work can readily be done by someone else. But to invalidate every single rule that doesn’t bend over backwards far enough to accommodate some supernatural belief or other is a prescription for chaos, toward which we are inexorably headed. America is cursed with an army of creative lawyers who just love finding nuances and exemptions. The only way to fend them off is with straightforward rules that apply to everyone, with as few narrowly drawn exemptions as possible.
RFRA is the giant middle finger the God lobby points at American nonbelievers. It is a mockery of the whole concept of “equal protection of the laws,” other than in the twisted Animal Farm sense of “Some animals are more equal than others.” The entire purpose of RFRA is to make religious people (and under Hobby Lobby, religious corporations) “more equal” than the rest of us. It is an abomination, and it should be flat-out repealed. An apology from Congress for having passed it in the first place and allowing it to exist for so long would be nice, too.
Instead, Congressmembers Kennedy and Scott offer a ludicrous compromise to pander to specific interest groups rather than to forthrightly repeal a disastrous law. They cover the base with women’s groups by specifically saying RFRA doesn’t apply to healthcare, thus reversing Hobby Lobby. They cover the base with LGBTQ individuals by saying RFRA doesn’t apply to “protections against discrimination.” They cover the base with unions by saying RFRA doesn’t apply to “standards protecting collective activity in the workplace.”
Here’s what they don’t do, either in the bill itself, or in the accompanying press release, or anywhere else that I can find: they don’t tell us what will be left that RFRA does cover—what violations of the fundamental principle of equal justice under the law they think are so important as to justify leaving the core of RFRA in place. Or, of course, why.
Here’s one example—I think, because it’s so hard to tell—of a RFRA loophole that would not be affected by the Kennedy-Scott bill. In federal prisons, Muslims, Jews, and others who get special menu guidance from God are entitled to their own special food, which invariably is more expensive than the slop the nonbelievers and others get. As a result, because nothing in RFRA increases any prison budgets, the other prisoners get food that is worse than it would have been if everyone were treated equally and fairly. Kennedy and Scott don’t seem to care about that, I suppose because nonbeliever prisoners don’t make big campaign contributions.
So why didn’t Kennedy and Scott just offer a one-sentence bill to repeal RFRA? To me, the reason is obvious: cowardice. They fear that an outright repeal of RFRA would label them as anti-religious somehow, when it would do nothing of the sort. It’s not anti-religious to say we should all be treated equally under religiously neutral laws—it’s common sense.
Rather than detailing what violations of equal protection they want to preserve, Kennedy and Scott’s press release proudly lists some forty special interest groups who would get taken care of under the bill, along with their quotations of lavish praise. If the topic weren’t so serious, many of these would be laughable.
The Hindu American Foundation, for example, says it “supports the Do No Harm Act because protecting the sanctity of the ‘Establishment Clause’ should be the utmost priority of the federal government.” Anyone who has studied religious liberty law for more than about three minutes can tell you that RFRA is actually an extension of the “Free Exercise” clause, and has nothing more to do with the “Establishment Clause” than it does with the infield fly rule.
The co-chair of the “Equality Caucus” boasts that “The Do No Harm Act makes clear that religion can never be used as a legal justification for discrimination against LGBT individuals.” It does nothing of the sort. Churches all across America will continue to have complete freedom to discriminate against LGBT individuals because of their absurd exemption from the civil rights laws, regardless of whatever happens with the Do No Harm Act or RFRA itself.
The NAACP complains about all the states that have adopted their own versions of RFRA. The clear implication of their comment is that the Kennedy-Scott bill will do something about all this. It will not—so what’s the point of even mentioning the state laws, other than to mislead?
Misinformation starts at the top. In his own press release, Kennedy boasts that “While not its original intent, the Religious Freedom Restoration Act has become a vehicle for those seeking to impose their beliefs on others or claim that the tenants of their faith justify discrimination.” First of all, it’s “tenets,” not “tenants.” More importantly, it was precisely the original intent of RFRA to sanction discrimination—especially housing discrimination—based on religious belief. Marci Hamilton, the lawyer who has done more than anyone to expose RFRA’s perils, has documentary proof to this effect.
The list of organizations supporting the bill is most notable for its omissions: the American Humanist Association and other organizations that have been fighting in the trenches against religious privilege for years. I don’t know for sure why they are left out. I hope it’s because these organizations have too much sense, and too much self-respect, to sign on to such a feeble, addle-brained compromise. Maybe someday when we’re stronger, and we have a functional Congress, we can make progress toward repeal and then “settle” for a wimpy compromise in the twenty-first century equivalent of the smoke-filled room. But no one who truly cares about equal justice for all would launch a campaign that way.