Kennedy & Maloney op/ed: No exceptions to equal protections
One month after a deadly attack against the LGBT community in Orlando, Republican Leadership in the House of Representatives will mark this week’s anniversary in an ugly way: by considering a piece of legislation that would bar the federal government from taking action when individuals or businesses attempt to deny, discriminate against or otherwise dehumanize LGBT Americans.
Beneath the partisan politicking that will undoubtedly capture headlines as the so-called First Amendment Defense Act (FADA) is given a hearing this week, there is an eerily familiar argument: the religious beliefs of some can trump the basic civil rights of others. From race and gender to sexual orientation and gender identity, it is a dangerous road our country has traveled down before. Still, today we see efforts at every level of government to distort our country’s sacred promise of religious freedom and use it to codify laws that protect some Americans but not others.
As practicing Catholics in public service, we have watched these efforts with heavy hearts. As the first openly gay congressman from New York, one of us has felt them as a direct threat to his own family.
We believe religious liberty and equal protection are not mutually exclusive. In a nation built as a beacon for those facing religious persecution and state-sponsored discrimination, the American commitment to religious liberty was crafted, above all else, as a statement of tolerance. It is a promise to protect and accept the marginalized and the minority, the voiceless and the victimized
In order to keep that promise for every American, however, the First Amendment established a simple boundary: your rights extend so far as they don’t infringe on mine or cause me serious harm. My freedom of faith cannot be used to undermine yours.
A commitment to this basic balance has fueled a growing federal response to those attempting to justify — and codify — discrimination towards the LGBT community. Last year, the Supreme Court in Obergefell v. Hodges recognized same-sex marriage under federal law. The Equality Act would add sexual orientation and gender identity as protected classes under the Civil Rights Act. The Obama administration’s new guidelines for public schools and health providers regarding transgender persons make it clear that there can be no exceptions to equal protection. Last month, the House of Representatives saw bipartisan support for the Maloney amendment, which would bar federal contractors from discriminating against LGBT Americans.
Still, a powerful obstacle remains. The Religious Freedom Restoration Act became federal law in 1993 with broad, bipartisan support. Crafted to protect religious minorities, it was a clear statement by the American people and their elected representatives that protection and recourse is needed when the law unintentionally infringes upon free exercise. Jewish children should be allowed to wear yarmulkes in public schools that otherwise prohibit headwear. Fire department restrictions on facial hair should contain exceptions for those of Muslim faith.
Over the past 23 years, however, RFRA has been contorted into a tool for employers to undermine basic workplace protections, organizations to stonewall child labor investigations, and health providers to deny needed care for victims of sexual abuse.
The Supreme Court’s 2014 ruling in Burwell v. Hobby Lobby Stores opened these floodgates even further, providing a path for corporations to cite faith in discriminating against employees.
Worse yet, where the Supreme Court led state and federal governments have followed. In Congress, over 170 Republican members have leant their name to FADA. In our states, more than 25 so-called “religious liberty” bills were introduced in 2015. These bills lay the groundwork for a pregnant worker to be fired because her employer doesn’t believe in premarital sex or for a transgender child to be refused health care because a provider doesn’t accept the child’s gender identity.
It is with these circumstances in mind that the Do No Harm Act was filed earlier this year in the House of Representatives, with Congressman Bobby Scott. This bill would preserve the original purpose of RFRA — to serve as a protective shield for religious minorities — and clarify that no one can claim religious exemption from laws that protect against discrimination, govern wages and collective bargaining, prohibit child labor and abuse, provide access to health care, regulate public accommodations, or provide social services through government contracts.
As men of faith, the ability to freely and fully exercise sincerely-held religious beliefs in this country is a liberty we cherish. Across the nation, religious principle inspires countless families, organizations and communities to champion economic justice, human dignity and common decency.
But there is a difference between exercising religious beliefs and imposing them on others. Our Constitution fiercely protects the former and expressly prohibits the latter.
The Do No Harm Act reestablishes that fundamental distinction and confirms what generations of civic history, constitutional law and American experience have proved true: if civil and legal rights exist only in the absence of a neighbor’s religious objection, then they are not rights but empty promises.