Lambda Legal Applauds Introduction of Federal Do No Harm Act

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May 18, 2016

Today, U.S. Reps. Joseph Kennedy (D-MA) and Robert C. “Bobby” Scott (D-VA) introduced the Do No Harm Act, a long-overdue correction to the federal Religious Freedom Restoration Act (RFRA) that amends the law to clarify that it does not permit the use of religion to discriminate, force religious beliefs on another or impose dignitary harm on someone else.

Jennifer C. Pizer, Senior Counsel and Director, Law & Policy Project, Lambda Legal, issued the following statement:

Since long before the LGBT civil rights movement even started, our communities have been targeted by religion-based efforts to condemn, control, and restrict the lives and equal opportunities of gay and transgender people, same-sex couples, and people living with HIV.

In recent years, too many of those who oppose the equality and inclusion of LGBT people have insisted upon religious exemptions from laws providing nondiscrimination and other protections everyone should have at work, at school, in medical offices and in social services.

"As Hobby Lobby, the recent non-decision in Zubik and the cascade of state-level discriminatory and distortive religious exemption bills demonstrate, the federal RFRA law absolutely needs this clarification.

Congress never intended RFRA to become, perversely, a tool for rejecting others.  The Do No Harm Act is an urgently needed course correction.

The Do No Harm Act amends the 1993 RFRA law by confirming that RFRA-based rights do not justify harm to others and by enumerating contexts where it simply cannot be invoked to justify violation of federal laws that protect others. These include: federal anti-discrimination and equal opportunity laws, child labor laws, workplace compensation laws; provisions of the Affordable Care Act; rules governing access to goods and services provided by federal government contractors or with federal grant funding; and rules governing access to goods and services provided by the federal government.

Two years ago, in Burwell v. Hobby Lobby, the U.S. Supreme Court in a 5-4 decision cited RFRA to extend federal religious exercise rights to many private, for-profit businesses — a troubling ruling that allowed such businesses to exclude essential elements of comprehensive health care coverage under the Affordable Care Act (ACA) from the plans they offer their employees.

On the heels of that decision, scores of religiously affiliated institutions cited RFRA in dozens of further challenges to the ACA’s birth control insurance benefit, criticizing the religious accommodation offered by the Obama Administration that has allowed these institutions to opt out of offering employees the coverage in their plans. A 4-4 deadlocked Supreme Court this week punted on those cases, known collectively as Zubik v. Burwell, and sent them back down to the lower courts without deciding the important religious exemption questions presented.

Pizer added:

While these cases had specifically to do with the birth control coverage requirements of the ACA, the Zubik employers’ broad overreach shows yet again the need for RFRA to be amended as per the Do No Harm Act to prevent its being invoked in similar fashion to justify discrimination based on sexual orientation, gender identity and expression, and HIV status, contrary to the nondiscrimination requirements of Section 1557 of the ACA and President Obama’s 2014 Executive Order.

The questions posed in Zubik should have been easy for the Supreme Court to answer.  Seven of eight federal appeals courts got it right, and the fact that the 4-4-deadlocked Supreme Court did not simply reject the employers’ absurdly inflated demands shows the urgent need for Congress to reaffirm the do-no-harm-to-others principle that motivated passage of RFRA in the first place back in 1993.

Lambda Legal’s U.S. Supreme Court friend-of-the-court briefs filed in Hobby Lobby and in Zubik give examples of religious exemption claims made in various contexts to justify discrimination against LGBT people and people living with HIV.  The briefs also provide information about the health impacts and other harms caused by such discrimination.

Read the press release.