Religion as a Shield, not a Sword: Why We Need to Pass the Do No Harm Act
Protest in Washington DC for LGBTQ+ equality in 2019. Photo by Ted Eytan.
In 2014, when David Mullins and Charlie Craig visited the Masterpiece Cakeshop to order a cake for their upcoming wedding reception, the owner refused to bake their cake on the grounds of his religious objection to same-sex marriage. The ACLU, which sued on behalf of Mullins and Craig, brought the case to the Supreme Court, where the baker’s right to deny service was upheld on narrow grounds by a 7-2 margin. The ruling argued that the Free Exercise Clause of the First Amendment was violated not by the lack of protection for LGBTQ+ rights within the case, but rather by the Colorado Civil Rights Commission’s “clear and impermissible hostility toward [the baker’s] religious beliefs,” leading to unequal enforcement of the law.
The Masterpiece Cakeshop v. Colorado Civil Rights Commission case did not set a precedent. Instead, it delayed the answer to the more critical question of whether the weaponization of religion to discriminate should be protected under the law. Finding the solution to this clash between freedom in religious practice and protection from discrimination requires both historical context and legal analysis. Since the passage of the Religious Freedom Restoration Act (RFRA) of 1993, religion has increasingly been used as a sword to harm others instead of a shield to protect our communities. Because equal treatment should be a human right, Congress must reinforce and build on RFRA by passing the Do No Harm Act.
How Religion Has Been Weaponized Throughout History
The Religious Freedom Restoration Act (RFRA) was introduced in 1993 by then-representative Chuck Schumer (D-NY) and Senator Ted Kennedy (D-MA) to guarantee the protection of religious freedom. Passed by a unanimous, bipartisan House vote and with only three Senate objectors, the legislation was subsequently signed into law by President Clinton in November. In the three decades since its passage, the RFRA has become increasingly controversial due to its use as a statutory justification to deny contraceptives to students and employees, prevent same-sex couples from adopting, or refuse to comply with a federal child labor investigation.
This is not the first time religion has been used to harm marginalized communities in the United States. At the nation’s founding, Christian slaveholders cited scripture to justify the ownership of other human beings. Around the globe, many religions have been weaponized to justify the subjugation of women or misconstrued to imply that men and women, by divine nature, have inherently different capabilities. For centuries, the “notion of divinely ordained segregation of the races and biblical condemnation of interracial sex and marriage” was frequently cited by opponents to interracial marriage. Indeed, as recently as 2019, churches and ministers have refused to host interracial wedding ceremonies. As Tisa Wenger, an associate professor of American religious history at the Yale Divinity School, wrote for The Washington Post in 2017, throughout history, “religion and scripture were often cited as justification for maintaining inequality.”
Today, the same arguments remain in use to justify discriminatory policies against LGBTQ+ people. Multiple passages in scripture are frequently invoked as the religious foundation for condemning homosexuality. In March of 2021, the Vatican’s doctrinal office ruled that the church could not support same-sex unions due to “the truth of the liturgical rite” of marriage. Even in legal battles, religious opposition to the Obergefell v. Hodges Supreme Court decision legalizing gay marriage in 2015 paralleled the religious references that undergirded legal opposition to interracial marriages decades earlier.
Protecting Religious Freedom and Marginalized Communities
These views do not reflect the beliefs of many adherents of Christianity, Islam, Judaism, and other faiths, nor are they congruent with the overarching message of religious texts to love thy neighbor, do good, and share love. Today, a majority of believers—including a majority of Historically Black Protestants, Mainline Protestants, Jews, Buddhists, Catholics, and Hindus—believe homosexuality should be accepted. The Human Rights Campaign maintains a list of religious organizations that have issued statements supporting and welcoming LGBTQ+ people to join their denominations. Over time, public opinion trends show societal acceptance will likely continue to increase.
However, regardless of any individual’s personal beliefs, religious justifications for discrimination and harm should not be considered legitimate in the eyes of the law. In a diverse society, legal protections are put in place to protect minority groups from harm or violence. James M. Oleske Jr, an Associate Professor of Law at Lewis and Clark Law School, wrote for the Harvard Civil Rights-Civil Liberties Law Review that enabling discriminatory conduct on the basis of religious belief would threaten the right of same-sex couples to equal treatment under the 14th Amendment of the Constitution.
This is why the federal government must add specificity to the Religious Freedom Restoration Act by passing the Do No Harm Act, introduced by Representatives Bobby Scott (D-VA), Steve Cohen (D-TN), Jamie Raskin (D-MD), and Mary Gay Scanlon (D-PA), in the 117th Congress. The Do No Harm Act ensures that the RFRA cannot be used to cause harm to third parties by protecting vulnerable populations in the areas of child labor law, employment and workplace discrimination, healthcare, and government services. This policy will restore the original intent of the RFRA to protect religious expression free from substantial government burden without infringing upon other rights.
Some opponents of the law believe that the premise of the Do No Harm Act is too expansive and imposes too many burdens on people practicing faith. Matt Sharp, writing for USA Today, claimed that the Do No Harm Act would do away with “toleration, diversity, and freedom of thought” and “deny [...] disfavored religious groups from even having access to a fair hearing in court.” Yet, his characterization of discrimination premised on religious thought neglects discussion of the harm that such actions can inflict upon other people. Decisions like Burwell v. Hobby Lobby, National Institute of Family and Life Advocates v. Becerra, and Masterpiece Cakeshop v. Colorado Civil Rights Commission misconstrued and distorted RFRA to enable discriminatory treatment and the denial of healthcare. In each case, the Supreme Court allowed the defendants to engage in different forms of discrimination on the basis of freedom of religion and used the RFRA as the justification.
The First Amendment guarantees every American the freedom to practice religion. However, like all rights, it is limited when it is used to harm other people. For example, speech that is defamatory and libelous or incites violence can be restricted, despite individual beliefs. Even though individual expression is central to the practice of the First Amendment, at the point where it damages other people’s lives, it can and should be curtailed.
The purpose of anti-discrimination law is to restrict harmful behaviors in the public sphere. For example, existing anti-discrimination laws guarantee that an individual with racial prejudices cannot turn away customers on the basis of their race, regardless of the justification. Similarly, an employer, according to Bostock v. Clayton County, cannot fire or discriminate against an employee on the basis of sexual orientation or gender identity. These protections are necessary for a functional society: personal beliefs, no matter how sincerely held, can no longer be considered personal when they affect and harm others. Such laws are established upon the premise that every person is entitled to equal treatment, and empowering discrimination on the basis of any identity is not just morally reprehensible but, as precedent shows, also legally unjustifiable.
The American government passes non-discrimination statutes from the belief that one’s identity should not influence their ability to access equal treatment in the public sphere. A Muslim student should not be singled out in class because of her hijab, a woman should not be fired because of her gender, and a gay person should not be denied health insurance or adoption rights because of who they love. While these laws may not change minds, they mitigate the immense social, political, economic, and psychological harms of experiencing discrimination and ensure that all people are offered access to resources, dignity, and recognition.
The Do No Harm Act is a moral and legal imperative for the federal government to pursue: it builds upon long-standing precedent while simultaneously protecting every American’s right to practice their faith. Religion, an important part of so many people’s identities, can be protected in a way that prevents its weaponization against others. Unfortunately, prior Supreme Court decisions have expanded the scope of RFRA far beyond its original intent, necessitating further clarification and intervention to protect marginalized groups in the United States. As a gay man, I do not need every person to accept who I am. I do not wish to change people’s deeply held religious beliefs. However, the bare minimum I and every other human being deserves is the recognition that the law should uphold equal treatment to protect both followers of faith and marginalized communities.
Ranen Miao (he/him) is a sophomore at Washington University in St. Louis studying political science and sociology. He can be reached at ranenmiao@wustl.edu.