A group of 130 religious and civil rights advocacy groups are demanding President Barack Obama reconsider a 2007 legal memo allowing the federal government to use a broad interpretation of the Religious Freedom Restoration Act (RFRA) — a framework they say gives organizations the right to discriminate while taking taxpayer money.
RFRA, passed by Congress in 1993, is a law meant to protect religious minorities who might otherwise have their right to religious freedom infringed upon. It has played a role in several court cases over the years, but was made famous in 2014 when the Supreme Court used an usually broad interpretation of the law to grant craft store giant Hobby Lobby exemptions from the Affordable Care Act.
But on Thursday morning, several organizations sent a letter to the president challenging the “OLC memo,” a legal opinion written near the end of George W. Bush’s presidency which contends that faith-based groups benefitting from federal grants should not be subject to religious nondiscrimination laws when taking on new employees. The letter charged that this gives these institutions too much power, allowing taxpayer-supported religious groups to openly discriminate against women, LGBT people, and other minority groups in hiring.
“RFRA was intended to provide protection for free exercise rights, applying strict scrutiny, on a case-by-case basis, to federal laws that substantially burden religious exercise,” the letter read. “RFRA was not intended to create blanket exemptions to laws that protect against discrimination.”
The letter lists recent examples of groups using the memo’s broad interpretation to exclude others, including faith-based organizations that receive money from the Violence Against Women Act but still list religion as a criterion when hiring employees. Some groups have also used the memo to argue for exemptions from the president’s 2014 executive order barring federal contractors from discriminating against LGBT workers, and still others have tried to use it to extend RFRA beyond the work place: Just this year, the U.S. Conference of Catholic Bishops and the National Association of Evangelicals cited the OLC Memo while attempting to avoid offering emergency contraception to raped migrant children flooding across America’s southern border.
“The memo’s erroneous findings are currently being used to justify taxpayer-funded discrimination,” a representative from the American Civil Liberties Union, one of the signers of the letter, said in an emailed statement.
Signers of the letter included many secular and women’s health advocacy groups, such as Planned Parenthood Federation of America, American Atheists, and Americans United for the Separation of Church and State. But the list also mentioned civil rights organizations such as Human Rights Campaign and the NAACP, as well as a number of religious groups such as the Union for Reform Judaism, Unitarian Universalist Association, Sikh Coalition, United Church of Christ Justice and Witness Ministries, and United Methodist Church General Board of Church and Society.
The letter highlighted its faith-based supporters, noting that some of the groups mentioned were also members of the Coalition for the Free Exercise of Religion, the group that pushed for the creation of RFRA in the early 1990s. They posit that the current use of RFRA contradicts its original purpose, and ultimately flies in the face of historical understandings of religious liberty in the United States.
“Contrary to the conclusion in the OLC Memo, RFRA is not a tool to categorically override statutory protections against religious hiring discrimination,” the letter read. “Nor does it create an absolute free exercise [of religion] right — without regard to countervailing compelling interests, as required by RFRA — to receive government grants without complying with applicable regulations that protect taxpayers and participants in federally funded programs.”