Congressional Efforts to Prevent Use of RFRA to Discriminate

ACLU Blog (May 18, 2016): The Religious Refusals Fight Comes to Washington, by Ian S. Thompson:

When the Supreme Court remanded Zubik v. Burwell last week, it avoided answering questions about the limits of the Religious Freedom Restoration Act.  The petitioners in Burwell argued that a generally applicable law (the Affordable Care Act's requirement that employee health plans include contraceptive coverage) should not apply to them and that the accommodation given to them (that they fill out a sheet indicating their religious objection, allowing them to avoid paying for contraceptive coverage, but triggering coverage by their insurer) substantially burdened their free exercise of religion. The Supreme Court's failure to issue a decision may embolden arguments that religion can justify opting out of non-discrimation laws and other laws of general application.

And now Congress is getting into the act.  Last month, an Oklahoma Congressman added an amendment to the the defense authorization bill that would allow religiously affiliated government contractors and grantees to discriminate in hiring.  According to the ACLU, the bill would allow these grantees to claim a right to: 

• Fire a woman who uses birth control or who is pregnant and unmarried.
• Fire a man who marries his same-sex partner.
• Refuse to interview anyone, however qualified, based on their religious beliefs, effectively adding language to job applications that says: “Jews, Sikhs, Catholics, Mormons need not apply.

So far efforts to strip the amendment from the defense bill have been unsuccessful.  But efforts also are underway to curb the use of religion as an excuse to discriminate.  Reps. Bobby Scott (D-VA) and Joe Kennedy III (D-Mass) have introduced the Do No Harm Act to amend RFRA to ensure that it can't be used as a justification for discrimination or to otherwise harm others.