With Supreme Court Vacancy, Congress Must Act To Prevent the Harms of Religious Exemptions

On the issue of LGBT rights, Justice Kennedy played a critically important role in transforming the lives of lesbian, gay, and bisexual people in America. The landmark rulings he authored in this area transported us, as LGBT people, from being criminals in the eyes of the law to having the freedom to marry the people we love most in the world. With Justice Kennedy’s spot now open on the court, Congress must ensure that his replacement demonstrates that same dedication to upholding the basic American values of nondiscrimination and equality, which are essential to allowing LGBT people to live our lives freely and openly. 

But while the U.S. Senate braces for what is certain to be an all-consuming, months-long confirmation battle over a new justice, we must not lose sight of the fact that there are things Congress can and must do now to safeguard the rights and dignity of the most vulnerable, regardless of who sits on the highest court in the country. One major thing that Congress could do is pass the Do No Harm Act, which would prevent religion from being used as a license to discriminate. 

When it was signed into law 25 years ago, the Religious Freedom Restoration Act (RFRA) was intended to protect religious freedom, especially for religious minorities. In recent years, however, individuals and businesses have worked to distort RFRA into a blank check to license discrimination or to impose their religious beliefs on others. 

The Supreme Court’s 2014 Hobby Lobby ruling marked the first time that the court said that business owners could use RFRA to deny their employees a benefit that they are guaranteed by law: insurance coverage for contraception. In her dissenting opinion, Justice Ruth Bader Ginsburg expressed concern that the decision could open the door for RFRA to be used to engage in a wide range of discrimination. 

Justice Ginsburg’s concerns have proven to be well-founded in the four years since Hobby Lobby. Now, multiple cases currently under consideration could expand religious exemptions to anti-discrimination law even further. 

The Supreme Court, for example, may hear a case in its upcoming term that involves yet another dangerous claim that RFRA permits discrimination. Aimee Stephens had worked for nearly six years as a funeral home director in Michigan when she took the difficult step of coming out to her employer as a woman. Rather than supporting Aimee during such a significant period of change in her life, the owner fired her, explaining that it would be “unacceptable” for Aimee to come to work as the woman she is. 

In 2016, a federal judge ruled that even if what happened to Aimee was discrimination in violation of federal civil rights law, RFRA authorized that discrimination because of the funeral home’s religious objections to transgender people. Fortunately, this decision was reversed by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit earlier this year. The decision from the Sixth Circuit affirmed that transgender people are protected by federal laws that prohibit sex discrimination, like Title VII, and that RFRA cannot be used to trump those protections. 

In the coming weeks, the funeral home is expected to ask the Supreme Court to take up the case. If the court does so, the stakes for LGBT people will be incredibly high. 

In addition, the Trump administration is currently weighing a request from South Carolina to grant a waiver from federal nondiscrimination requirements to allow one of the largest providers of child welfare services in the state — and a recipient of large amounts of taxpayer dollars — to discriminate against prospective families who are not Protestant Christians. If granted, this “RFRA waiver” would cause children to be denied access to countless qualified families they desperately need, reducing their chances of finding loving, stable families simply because those families are LGBT or don’t adhere to particular Christian beliefs. 

RFRA is being invoked in ever more brazen schemes to open the floodgates to all manner of discriminatory religious refusals. But it doesn’t have to be this way. 

The Do No Harm Act, which is currently pending in both chambers of Congress, is designed to restore RFRA to its original intent. While maintaining the law’s use as a shield for religious minorities — for example, cases involving the right to wear religious garb and observe religious holidays — the Do No Harm Act would ensure that RFRA could no longer be used as a sword to harm other people, particularly LGBT people, women, and religious minorities. 

If the Do No Harm Act were the law of the land, even a Supreme Court that is significantly more hostile to civil rights and civil liberties would not be able to use RFRA for discriminatory purposes, such as overriding the protections of our nation’s civil rights laws. Those who are very rightly concerned about the direction of the Supreme Court must do everything in their power to make sure our laws protect all people’s rights, especially the rights of those who are most vulnerable to discrimination. Passing the Do No Harm Act is an essential step towards that end. 

View comments (10)
Read the Terms of Use

Anonymous

What BS. For years LIberal activist judges have undermined the Constitution.
Now with the shoe on the other foot you are all against "activist" judges.
Bon Apetite

Anonymous

Where is your proof that judges have undermined the Constitution because they have ruled in a way you did not like? Every individual having equal rights and dignity should not be either a liberal or conservative value, it should be both.

Anonymous

So says a thief of Obama’s Supreme Court appointment.

Dr. Timothy Leary

Which are you Mr. Thompson an L., a G., a B., or a T. ?

Anonymous

According to an ACLU blog post from June of 2008 entitled "Ian Thompson: This is Who I Am", he's a gay man (assigned male at birth).

Anonymous

Bend over!

Anonymous

Laws do not trump Constitutional Amendments. The Supreme Court would more than likely rule that law Unconstitutional as it conflicts with the First Amendment. Not to mention that SCOTUS has not ruled that Civil Rights Laws protect transgenders.

Anonymous

The "clear and present danger" to our American republic may be that justices like this will create a permanent "American Stasi" with more unchecked power than the Cold War era East German Stasi ever dreamed of having. The East German Stasi accounted for one of the highest death rates in Europe during the Cold War. We may be a generation away!

Exploiting the "War on Drugs" court rulings from the 1970's, Bush's "Preemption Doctrine" fundamentally violated the 4th Amendment's legal restraint on government authority. Bush and the GOP-controlled Congress essentially amended the U.S. Constitution illegally - WITHOUT a legally required constitutional amendment. It is illegal to change the letter & spirit of any constitutional right without an amendment. The 4th Amendment outlaws preemptive searches or fishing expeditions. Bush's unconstitutional Preemption Doctrine also harmed 1st Amendment rights.

Today we have federal, state and local governments trolling Facebook and other social media, performing preemptive searches, without probable cause of a past crime as the 4th Amendment clearly states. Much of this unconstitutional data-mining is being shared with state Fusion Centers [essentially blacklisting centers] funded by our federal tax dollars. Fusion Centers are using terrorism-authorities primarily for non-terrorism cases. Fusion Centers have an inaccuracy rate exceeding 90%, their terrorism-conviction rate is less than 10%. State legislatures, like Virginia, have also granted these Fusion Centers excessive secrecy (for their less than 10% terrorism-conviction rate). In these states neither citizens nor press organizations are allowed to file Freedom of Information Act requests for mostly non-terrorism cases. There is no "Terrorism-Exemption" in the U.S. Constitution.

It's also dumb policy, using a "Needle in the Haystack" metaphor, we are adding gargantuan amount of hay [suspects] to the pile making it far harder to find the real terrorists. In the early days, Virginia's Fusion Center listed 100% of all African-American college students, that attended predominantly black colleges, as "nodes of radicalization" - none had any ties to OBL or terrorism.

The reason the main-stream press organizations have largely neglected the danger of our emerging American Stasi is that the government agencies primarily use extra-judicial punishment to retaliate against perfectly legal 1st Amendment exercises. One of the top extra-judicial punishments [also a federal crime 18 US Code 242] seems to be "Employment Tampering" and "Defamation". When some officials commit these federal crimes and violate their oath of office, it also robs targeted Americans of "legal standing" in court - subverting the judicial process. Targets can't even challenge the legitimacy of the Fusion Center.

This current nominee, Brett Kavanaugh, has a past record of supporting policies that would strengthen and embolden America's new and inproved Stasi. To the best of my knowledge, Kavanaugh never objected to Bush's unconstitutional Preemption Doctrine. Maybe libertarians in the Party of Abraham Lincoln, like Rand Paul and Dave Brat, will place country ahead of party and vote "NO" on Kavanaugh?

Anonymous

When American voters choose any president, the voters also are voting for that president's choice of nominees. Unless the nominee is indicted for criminality or unfit for public office, the duty of Congress is to confirm that president's choice, which was the will of the American voters. Even though the U.S. Senate makes up many if it's own rules, the 14th Amendment requires that each president (and their voters) be treated equally.

Voters that chose Obama and his choice of nominees for the U.S. Supreme Court were robbed of that choice for 8 years. The voters were also robbed of lower court nominees. All of Obama's nominees were fit for office. The GOP led Congress subverted the democratic process and subverted the U.S. Constitution. Obama won a greater margin of the American vote than either Bush or Trump, but us voters were robbed of governing authority for decades in the Judicial Branch. The Judicial Branch interprets what's constitutional or not for the entire United States down to your local police department and mayor. Obama's voters got robbed but now we are supposed to play nice?

Randomutation

Religious freedom laws are currently needed as a defense to the novel way public accommodation laws have recently been leveraged and manipulated in some states to grant a privileged status – rather than just a protected status - to homosexuals.

Some state courts have alleged that the conduct of marrying someone of the same sex is “closely correlated” with being gay. And these courts say that “discrimination” against parties that celebrate conduct that is alleged to be “closely correlated” with being gay, is somehow the same as discrimination against gays. Under that rationalization, gays are not just a protected class, but also an elevated class. It is not only illegal to discriminate against the members of the elevated class, it is also illegal to “discriminate” against the celebration of anything that is alleged to be “closely correlated” with the elevated class.

The Supreme Court’s narrow ruling for Jack Phillips does nothing to end this unique and imaginative way of targeting religion under the guise of “fighting discrimination”. The ruling merely tells the state courts that they better cover up any anti-religious bias if they are going to employ this new tactic. Until there is a more definitive ruling from the Supreme Court, religious freedom laws are the best protection against this sort of abuse.

Stay Informed