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By Stephanie Barclay, Public Discourse, July 18, 2019,
The “Do No Harm” Act would gut the Religious Freedom Restoration Act by removing religious liberty protections that result in “harm” to others. That would be a mistake. Protection of any First Amendment rights inherently involves balancing competing harms on both sides of the ledger.
This spring, members of Congress introduced a bill called the “Do No Harm Act,” which would remove statutory religious liberty protections for actions that result in “harm to others.”
Questions about harm related to religious protections are particularly weighty at this particular moment in history; religious exemptions have never been more controversial or hotly debated in legal scholarship. Particularly in light of Supreme Court cases like Hobby Lobby and Masterpiece Cakeshop, some scholars have advanced new theories that would place strict limits on the government’s ability to grant religious exemptions that result in harm to third parties. Iterations of this theory, referred to as the “third-party harm theory,” argue that “we should be disturbed by the claim that individual rights can be exercised in ways that harm others.”
In a forthcoming Indiana Law Journal article, “First Amendment ‘Harms,’” I provide a theoretical critique of the generic harm principle on which this theory relies and suggest more fruitful normative questions that we should be asking about harm. ….