RFRA, Zubik v. Burwell, and the Do No Harm Act


The Religious Freedom Restoration Act (“RFRA”) has been an invitation to believers to think that there is a new America where they can live their faith in a self-referential universe and where they need not honor or even respect others’ beliefs. The Supreme Court’s Burwell v. Hobby Lobby decision came dangerously close to introducing a theocratically-ordered marketplace, as I discuss here and here. Tragically, RFRA has been draining the United States of its best qualities—a lively marketplace filled with diversity and an unwillingness to let religious identity trump friendship and cooperation.

Zubik: The Supreme Court Avoids the Worst of RFRA by Refusing to Interpret It

When the Supreme Court “decided” Zubik v. Burwell this week, by an unsigned per curiam decision, it avoided the worst of RFRA by refusing to interpret it. This was the case where nonprofits argued that it violated their faith to tell the government they needed an exemption from health care coverage of women’s contraception. If the Court had taken Hobby Lobby that one step farther by holding that the mere act of having to request an exemption could be a violation of RFRA, a certain category of believers would have received a message loud and clear that RFRA gives them the power to control others’ conduct while not having to tell the government they were avoiding a legal requirement. There is a phrase for that: religious anarchy, which since the framing of the First Amendment, has thankfully not defined the American space. (To be sure, it frequently defined colonial America with its isolationist, scattered theocracies but the First Amendment unraveled that era as Leonard Levy explained.)

In fact, I’m not a big fan of how Zubik was decided. After oral argument and in the wake of Justice Scalia’s death, which left the Court with a 4-4 split on the most divisive issues, the Court asked the parties to further explain what they would view as an appropriate accommodation/compromise. This was yet another awkward moment when RFRA re-cast the Supreme Court as lawmaker while it permitted RFRA to give believers a second bite of the legislative policy apple. The flipped roles of Court and Congress violate the separation of powers, but the Court to date has not had the courage to take back its power over interpreting the First Amendment and free exercise.

Instead, the Court folded in Zubik, essentially imploring the parties to find the compromise that would and could have been forged by members of Congress if RFRA hadn’t lured the nonprofits into the courts. And the parties, seeing a 4-4 split looming ahead, accommodated the Court by becoming, well, reasonable. The government said it could accept notice of the need for accommodation through means other than the form it had required, and the nonprofits said that their faith did not actually require them to deny contraception to employees so long as the system did not require them to authorize in some manner said contraception. Aha! A solution that brought the believers back from the brink of arguing that merely informing the government they needed an exemption violated their faith, as it potentially protected employees’ rights to seamless cost-free contraception coverage. So now the pending cases have been sent back down to their circuit courts to see whether there really is a workable compromise.

Justice Sotomayor’s concurrence emphasized that the per curiam opinion did not decide a single RFRA issue and that the paramount concern had to be that women receive “seamless” no-cost contraceptive coverage. Paul Clement at oral argument for the nonprofits had seemed to say that the answer to the case was to force women to sign up for two separate insurance plans—one from the nonprofit not including contraception and a separate plan for the contraception. Sotomayor sends a clear message that that is not the compromise she views as viable or acceptable. She is so correct. On the downside, however, is that Justice Sotomayor wrote only for herself and Justice Ginsburg. Where were Justices Breyer and Kagan? Or even Justice Kennedy? We’ll never know since the opinion was signed by Mr. Per Curiam.

The Do No Harm Act Is Introduced to “Fix” RFRA

With this soft shoe by the Supreme Court around RFRA and contraception this week, the question was left open whether RFRA will be a tool beyond the Hobby Lobby decision that lets employers shape their employees’ benefit plans to reflect personal religious belief. The Court’s backing off of a RFRA decision in Zubik seems to signal that the Hobby Lobby decision was as singular as Justice Alito said it was. In addition, on May 18, Reps. Joseph Kennedy III and Bobby Scott introduced the “Do No Harm Act.” This is the turn in religious liberty discourse and doctrine that the United States has needed since RFRA was first passed in 1993. This new bill deserves passage and will return significant quadrants of the religious liberty universe to one where being religious cannot justify harming another, whether a woman, child, LGBTQ individual, or employee. It is an antidote to some of the contemporary, corrosive religious triumphalism.

The Do No Harm Act would carve from RFRA the potential for believers to use it to harm others, either through discrimination or bad acts. And it exceeds the narrow focus on LGBTQ rights that has driven the movement against the state RFRAs; it protects not just LGBTQ individuals but also children. That alone tells us we have come a very long way since the RFRA of 1993 when it never occurred to anyone that it might be a haven for excusing discrimination, child sex abuse, trafficking, or neglect.

The list of supporting organizations, puts earth back on its proper axis. The “bi-partisan” Coalition for the Free Exercise of Religion behind the original RFRA was composed of an array of religious and civil rights groups, but everyone suppressed discussion of their real agendas. The Coalition was the oddest gathering, because they had an agreement that they would not discuss their individual agendas with lawmakers but only disclose their shared goal of high-level religious liberty rights. In effect, religious groups and civil rights groups voluntarily—for a time—abandoned their policy objectives to unite for the opaque RFRA right. Each side in the culture wars agreed to arm the other to their detriment. Lawmakers, the press, and the public frankly did not know that RFRA was motivated in large part to permit marital status discrimination in housing. Nor did they have a clue of the level of sex abuse in religious communities that religious leaders were actively concealing. In contrast, the supporters of DNHA share policy and moral agendas and are disclosing them as part of their support for DNHA. It’s called transparency.

In truth, the Supreme Court and the First Amendment need to be returned to their wise perch on religious liberty, and RFRA should be repealed outright. But the Do No Harm Act is as good a place to start as any to carve out of RFRA some of its worst incentives and inclinations. I have always had to hand it to those who selected RFRA’s name: that is a title that lawmakers found hard to vote against. Yet, the “Do No Harm Act” now rivals RFRA as a title that is hard to oppose. If you do, you support doing harm?! That’s funny, but it’s also sad that we need an amendment to any federal law to ensure that religious believers are adequately restrained from hurting others.

Sad or not, it’s reality, and the era for the Do No Harm Act is upon us.