The Real Consequences of the Federal ‘First Amendment Defense Act’

By Adam Polaski • July 14, 2015 • 6:48 pm

It’s been three weeks since the United States Supreme Court ruled in favor of the freedom to marry for same-sex couples, at last ending marriage discrimination nationwide. Rightfully, the LGBT community has celebrated this momentous victory – but as we celebrate, it’s critical that we remain watchful of opponents’ attempts to undercut this historic ruling and work to chip away at American freedoms.


The most immediate threat is the so-called First Amendment Defense Act (S.1598 & H.R.2802), introduced by United States Sen. Mike Lee (R-UT) and Rep. Raul Labrador (R-ID) last month. The broadly written bill would give religious organizations and businesses a license to discriminate against LGBT people, single mothers, religious minorities, and other Americans – and it already has dozens of co-sponsors in the United States Congress.

The bill does nothing to strengthen First Amendment rights, which are already enshrined in our Constitution and reflected in laws across the land. The freedom of religion, one of the most fundamental American rights, is not up for debate. Rather, this bill is seeking to pave a way for individuals to use their religious beliefs to harm others.  That would undermine another important value Americans all cherish – treating others as we ourselves would like to be treated.

Here are just some of the potential consequences of the First Amendment Defense Act:

Rolling Back Existing Federal Protections

The bill would leave unenforceable much of President Obama’s amendment of Executive Order 11246 – an amendment that extended nondiscrimination protections for LGBT employees of federal contractors. The executive order, which established the LGBT-inclusive amendment in July 2014, is estimated by The Williams Institute to protect an additional 16.5 million employees from discrimination on the basis of sexual orientation and gender identity.

Employment Discrimination Against Hardworking Americans:

Under the proposed bill, if a government contractor were to deny employment or terminate someone’s employment based on their marriage to a partner of the same sex, the federal government could take no action.

On July 9, in an NPR interview, Robert Siegel asked Senator Lee, FADA’s lead sponsor, “Your bill says that if a person or institution acts on a religious belief that marriage is a union between one man and one woman, it shouldn’t be denied a federal tax exemption or a contract, a grant, a license. Does that mean that, say, a university with religious affiliation and federal grants can deny employment to anyone married to a person of the same sex?”

Sen. Lee answered:

A religious institution, whether an educational institution or otherwise, just like an individual ought not have to choose between adhering to religious belief and, on the other hand, doing whatever it is that that person or that entity does, there ought not be a penalty attached to a religious belief.

The freedom of religion is protected in the U.S. Constitution. But that freedom does not give any of us the right to harm or discriminate against others – and overwhelmingly, people of faith understand that.

Leaving the Distribution of Martial Protections and Benefits to the Discretion of Individuals and Companies

Under the proposed bill, the federal government would be powerless to require a company to provide an employee leave to care for a sick same-sex spouse under the Family & Medical Leave Act, even if the employee is legally married.

Additionally, federal government employees may refuse to process or otherwise handle a claim, benefit, or service to which a married same-sex couples is entitled under federal law – even though the U.S. Supreme Court has ruled that the couple is fully entitled to marriage and all of the protections associated with marriage.

Essentially, the bill is working to give individuals and companies cover so that they don’t have to follow the law and respect married same-sex couples – and in the process, it strips the federal government and these couples from any legal recourse.

Discrimination Against Unmarried Women:

The bill would also bar the federal government from denying education funds to a school that fires a teacher it suspects of having a premarital sexual relationship with her longtime boyfriend.

In the NPR interview, Siegel asked Lee, “Your bill does not just protect people who believe that marriage is the union of one man and one woman. It also says it protects the belief that sexual relations are properly reserved to such a marriage. So … can a college or an institution fire a woman on the payroll because she’s had sex with a man when both are unmarried?”

Lee answered in the affirmative: “There are colleges and universities that have a religious belief that sexual relations are to be reserved for marriage and that, for religious reasons, recognize a marriage as an institution between a man and between a woman. Those colleges and universities have the right to make that decision on their own.”

Sen. Lee’s answer makes it clear how far and overreaching the First Amendment Defense Act really is – it would not only impact LGBT Americans, but stands to expose many Americans to ugly discrimination.

Sponsors’ Uncertainty on Other Consequences of FADA:

Sen. Lee said he was unsure of whether FADA would permit a neighborhood to ban property sales to same-sex couples.

“If I and my neighbors believe that as a matter of faith, homosexual relations are wrong, can my neighborhood have codicils attached to property that ban the sale to same-sex couples?” Siegel asked.

“I’d have to consider your hypothetical a little bit further,” Lee replied.

It’s telling that Lee did not reject this blatant discrimination as wrong and unwarranted under the United States Constitution.

A Harmful Bill, Against What Americans Believe:

Overwhelmingly, a bipartisan majority of Americans from every region of the country support protecting LGBT Americans from discrimination. And 54 percent of Americans say it is wrong for businesses to deny services to LGBT people.

So why is the so-called First Amendment Defense Act moving through Congress? It doesn’t reflect what Americans overwhelmingly believe, and it does nothing but hurt LGBT people, same-sex couples, religious minorities and others.

On July 15, Freedom for All Americans campaign manager Matt McTighe criticized FADA for disguising discrimination as religious liberty. McTighe said:

This is an outdated bill that does nothing to advance religious freedom but does attack the economic well-being of LGBT Americans all across this country. Every American should be given the freedom to live their lives without fear of discrimination. At a time when a supermajority of Americans want to move forward with comprehensive protections for their LGBT friends and loved ones, it’s disheartening to see that some lawmakers are still aggressively pushing legislation that singles out individuals for harm.

McTighe continued: “One of the biggest lessons from Indiana is that the American people, and the businesses of all sizes that drive our economies, don’t support these types of misleading bills. They see legislation like this for what it truly is – a blatant attempt to make life harder for those already vulnerable to discrimination. Freedom for All Americans is committed to continuing the work of advancing bills that build up all Americans rather than tear us down.”

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