Religious Freedom, Both International and Domestic, on Biden’s Chopping Block

COMMENTARY: Effective action to stop religious persecution and discrimination requires active leadership from the United States.

A Catholic priest reads from a lectern in Jerusalem’s Church of the Holy Sepulcher.
A Catholic priest reads from a lectern in Jerusalem’s Church of the Holy Sepulcher. (photo: Dominika Zara / Shutterstock)

The bloody, religiously motivated attack by Hamas against the people of Israel in the early hours of Saturday, shocks the conscience. Prayers for an end to this terror must also be accompanied by a renewed commitment to religious freedom across the globe, especially in regions of seemingly unresolvable religious conflict. 

Americans have a built-in reminder this month as we mark the anniversary of two federal laws — the International Religious Freedom Act and the Religious Freedom Restoration Act — that reflect our nation’s commitment to religious freedom here at home and abroad. Disappointingly, the Biden administration has been busy trying to sweep this commitment under the rug. All the more reason for Americans to remember these anniversaries. 

Oct. 27 will mark the 25th anniversary of the International Religious Freedom Act (IRFA). The act established the Office of International Religious Freedom in the State Department, led by an IRF ambassador-at-large. IRFA was amended in 2016 to further bolster religious freedom as a foreign-policy priority. 

Since IRFA’s passage, U.S. advocacy in advancing the cause of international religious freedom has shone a spotlight on bad state actors, alerting the world community and galvanizing lawmakers. Religious-freedom experts, however, are warning us that the Biden administration is trying to undermine this statute in much the same way as RFRA, ignoring our responsibility to uphold religious freedom while elevating progressive policy priorities. 

Consider the administration’s tepid concern for Catholics and other Christians facing persecution in countries like Nigeria, Nicaragua and China, not to mention those who remain in the Middle East. At a recent hearing, Rep. Chris Smith, R-N.J., a longtime champion of religious freedom, observed that “assaults on religious freedom are a major threat to U.S. national security” and that “the worst violators of religious freedom globally are often the biggest threats to our nation.” He added: “I am concerned that the U.S. State Department is not using all the tools provided to hold guilty parties accountable.”

He’s right to worry. Effective action to stop religious persecution and discrimination requires active leadership from the United States. But it’s not just international religious freedom that’s threatened by the Biden administration and its dogmatic progressive allies. Religious freedom here at home, despite legal safeguards, is also on the administration’s chopping block. 

Five years before the IRFA was passed, the Religious Freedom Restoration Act (RFRA) was passed by a unanimous House and an almost unanimous Senate. Two Democrats — New York Rep. Chuck Schumer and Massachusetts Sen. Ted Kennedy — were the principal sponsors of the law. President Bill Clinton signed the law into effect. An earlier version had been proposed by then-Sen. Biden. How times have changed. 

As RFRA provides, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” An exception is made if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest.” The second condition is that the rule must be the least restrictive way in which to further the government interest. 

To enforce its provisions, RFRA creates a private cause of action for persons whose religious exercise has been substantially burdened, allowing them to “assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 

The act was the legislative response to a Supreme Court case — Employment Division v. Smith. The Court in Smith ruled that Washington state could deny unemployment benefits to two Native American men who were fired for violating a state prohibition on the use of peyote, even though their use of the drug was part of a religious ritual.

Accordingly, laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are “neutral and generally applicable.” While a majority of the Supreme Court’s current justices have expressed their disagreement with Smith, the decision has not been overruled. 

In RFRA, Congress expressed its intent to “provide very broad protection for religious liberty.” The act also includes a “Rule of Construction” that states that all prospective federal action is subject to RFRA’s provisions “unless such law explicitly excludes such application by reference to this chapter.” 

In the late ’90s, the Supreme Court ruled that although RFRA was constitutional when applied to the federal government, it could not be applied to the states. Nevertheless, RFRA’s impact is significant. In a recent decision, for example, the Supreme Court referred to RFRA as a “super statute” for its application across the entire federal government. 

Predictably, progressive lawmakers and advocacy groups, seeing how religious belief often interferes with the imposition of their ideologies, have been busy trying to undermine RFRA. One of their attempts is contained in the proposed Equality Act. The act — versions of which the Democrats have been unsuccessfully trying to get through Congress since 2015 — purports to prohibit discrimination based on sex, sexual orientation and gender identity in employment, housing, public accommodations, public education, federal funding and other areas of public life.

But that summary doesn’t adequately convey the bill’s ideological extremism and destructive potential. 

One serious danger is its proposed silencing of religious or moral objectors: The draft states that the “Religious Freedom Restoration Act shall not provide a claim concerning, or a defense to a claim under” nor “provide a basis for challenging the application or enforcement of a covered title” of the Civil Rights Act. 

Another legislative effort to undermine RFRA is the so-called “Do No Harm Act,” reintroduced this spring in the House and the Senate. This legislation would basically eviscerate RFRA by restricting its application in cases involving “discrimination, child labor and abuse, wages discrimination and collective bargaining, access to health care, public accommodations, and social services provided through government contract.”

As we see the grievous harm of religiously motivated terror in Israel, the administration’s wavering commitment to religious freedom, both at home and abroad, is unbelievable. But at least it reminds us of our own obligation as Catholics: to oppose religious intolerance wherever it occurs, whether in regions far away or in our nation’s capital.