Understanding the RFRA

Let's take a look at the Religious Freedom Restoration Act, it's unintended consequences, and proposed solutions.

 

Born from the outcome of Federal Supreme Court case Employment Division v. Smith, the Federal RFRA was enacted in 1993. It's aim was to protect the religious liberties of Americans, especially minorities.  However, it didn't take long for unintended consequences of the law to appear, resulting in cases of discrimination.  In 1997, the Supreme Court ruled that it was a violation of the U.S. Constitution that RFRA could apply to the states - it could only be applied at the Federal level.

 

Since then, many states have passed their own versions of the RFRA and we've seen more and more instances of the legislation being used to discriminate or deny services to American citizens. A few of most publicized of these are

 

  • Hobby Lobby's refusal to include birth control in it's employees healthcare plans

  • Refusal of government or other business workers to perform their duties for certain customers (Kim Davis, bakery, photographer, etc.)

  • Allowing a member of the Fundamentalist Church of Jesus Christ of the Latter Day Saints to evade child labor laws


The bottom line is that the RFRA puts religious freedom/expression above the law. On a state level, Ohio has not enacted its own RFRA, but its state constitution requires similar level of scrutiny as the federal RFRA.

There are two schools of thought on how to solve the issue with the current federal RFRA.

  • Restore to originally intended purpose The Protect Thy Neighbor organization would like to see a new law, the Do No Harm Act (HR 5272), passed in order to clarify the RFRA.  The new law would protect religious expression only if there was no harm to others and could only be invoked if the government was a party in the suit.
    http://www.protectthyneighbor.org/do-no-harm-act

But fixing the problems at the federal level will be only half the battle. More and more states are enacting their own RFRA legislation, resulting in a state-level need for repeal or clarification.

To see the RFRA status of each state, go to http://www.protectthyneighbor.org/do-no-harm-act.