If this is true—and I believe it is—then freedom of religion has rarely been under greater threat than today. Oh, sure, the right to the “free exercise of religion” is still in the First Amendment. But because of a 1990 Supreme Court case, it’s almost impossible to prevail in a constitutional claim that one’s freedom to act according to one’s faith has been infringed by a law or regulation.
Laws of general applicability can infringe upon the religious beliefs of millions without having that explicit purpose. Thankfully, there was a statutory remedy. In an overwhelmingly bipartisan vote—unanimous in the House of Representatives—in 1993, Congress passed and Democratic President Bill Clinton signed the Religious Freedom Restoration Act (RFRA).
‘Do No Harm Act’
The RFRA worked in the Hobby Lobby case, which protected Christian owners of a retail company from being forced to cover abortifacient contraceptives in their health insurance policy, as required by the Affordable Care Act.Cases such as Hobby Lobby infuriated the political left, which now opposes the RFRA specifically, and Murphy’s vision of freedom of religion generally. Rather than protecting liberty, these activists believe freedom of religion has become an excuse for invidious discrimination against the LGBT community and women who seek abortions.
The left has vowed to emasculate the RFRA as soon as it controls the federal government. Toward this end, Democrats introduced the “Do No Harm Act”—notably co-sponsored in the Senate by vice presidential candidate Kamala Harris—which would repeal the RFRA in all but name only.
Specifically, the legislation states that the RFRA “should not be interpreted to authorize an exemption from generally applicable law that imposes the religious views, habits, or practices of one party upon another.”
This means, say, that if federal law ever requires all employers to purchase health insurance covering abortion, a religious employer opposed to abortion based on faith would be unable to opt-out because it would be interpreted as imposing the owner’s religious views on employees.
The States
The RFRA only applies to federal laws and regulations. We already see the peril to religious freedom that would be posed nationally by actions taken against religious freedom in states without their own RFRA.Washington is one such state. In 2007, the state’s Board of Pharmacy—at the prompting of the governor and Planned Parenthood—promulgated a regulation requiring pharmacies to stock and dispense all FDA-approved medications.
An even more egregious case is ongoing in California, which also doesn’t have an RFRA. Dignity Health, a Catholic hospital in Sacramento, refused to allow a transgender hysterectomy to be undertaken as against Catholic moral teaching. Since the hysterectomy would have removed a healthy organ and also sterilized the patient, allowing the surgery clearly was forbidden by Catholic moral teaching,
If RFRA is gutted at the federal level, the same fate that faced Stormers and faces Dignity Health awaits religious believers and institutions nationwide—meaning that creed-motivated philanthropic and service organizations such as the Salvation Army, Catholic Charities, and religiously sponsored schools, hospitals, nursing homes, pregnancy counseling centers, etc.—will be placed at great risk.
That would not only make our society much less free but could materially harm the millions of people whose lives are immeasurably benefited if these charitable institutions shut their doors rather than violate their faith beliefs.