First, do no harm, by Ken Burrows: Freethought Views February 2019

First, do no harm

By Ken Burrows


The 2014 Burwell v. Hobby Lobby Supreme Court decision granting a religious exemption to providing contraceptive coverage under the Affordable Care Act predictably led to efforts to broaden the definition of “religious freedom” in ways that deny or limit the rights of others in matters of birth control. When the 2015 Obergefell v. Hodges Court ruling made same-sex marriage a constitutional right, these efforts intensified, especially with regard to marriage. Such efforts often mimic the Religious Freedom Restoration Act (RFRA), the Court-cited basis for the Burwell ruling. RFRA constrains how a law may impact religious practice. Critics say that ruling gave too much deference to religion at the expense of individual rights and equal treatment and results in unduly harming others.  "

Evidence for such deference can be seen in H.R. 2802 and S. 2525, House and Senate measures that go by the title First Amendment Defense Act (FADA). Despite its broad name, it narrowly focuses on just the issue of religious views related to marriage. It would prevent the government from penalizing persons, corporations, or most any other entity when they “believe or act” in accordance with their religious views about marriage—especially its being limited to “one man and one woman.”

Under FADA individuals, businesses, health care providers and many others could discriminate against same-sex marrieds, cohabiting couples, single mothers, and others in ways that would otherwise be illegal—such as inequitably denying housing or health services—and suffer no government sanction if they cite religious beliefs as their reason. Since religious beliefs are far from uniform, under FADA the “religious freedom” of one faith could at times impinge on the religious freedom of another. FADA’s extreme deference to any and all religious beliefs offers no answer for such conflicts.   

A counter to FADA can be found in H.R. 3222 and S. 2918, known as the Do No Harm Act. These measures would amend RFRA “to protect civil rights and otherwise prevent meaningful harm to third parties.” It would bar certain religious exemptions to generally applicable law if such exemptions permit discriminating against others. Both FADA and the Do No Harm Act are currently in committee.  

While religious freedom is among our most cherished principles, it does not trump all other principles and should not be the default winner when it conflicts with other equally important values. We are a pluralistic society. Our democratic republic will not endure by awarding an automatic deference to religion when values conflict. That’s what theocracies do. Rather we should seek a balance between one’s freedom to practice religion and one’s responsibility to treat fellow citizens with equality and fairness.

Our history supports this. Enlightenment philosopher John Locke, who inspired many of our Founders’ ideas on governing, promoted a “no harm rule” as indispensable to ordered liberty. The only active minister to sign the Declaration of Independence, John Witherspoon, said civil laws should “limit citizens in the exercise of their rights so that they may not be injurious to one another.” The Father of the Constitution, James Madison, wrote in his Memorial and Remonstrance that “equality ought to be the basis of every law,” and such equality is violated when religious preferencing grants people “peculiar exemptions.”

Citizens who value no-harm principles can defend them by asking their elected representatives to support the Do No Harm Act and reject the “peculiar exemptions” in FADA.

 

 

Published February 6, 2019 in the Freethinkers of Colorado Springs "Freethought Views" column in the Colorado Springs Independent.

“Being all equal…no one ought to harm another in his life, health, liberty.”
John Locke