The So-Called "First Amendment Defense Act" Is The Next Attack on LGBT Rights

››› ››› RACHEL PERCELAY Versión en español

In response to the Supreme Court's historic marriage equality ruling, conservative media has endorsed a newly proposed federal bill called the "First Amendment Defense Act" (FADA). Though conservatives have touted FADA as an effort to protect religious liberty, critics warn the bill would undermine the government's ability to combat anti-gay discrimination.

Conservative Media Rallies Behind "First Amendment Defense Act"

Conservative Republican Lawmakers Introduce "First Amendment Defense Act" In Congress. On June 17, Sen. Mike Lee (R-UT) and Rep. Raul Labrador (R-ID) introduced the "First Amendment Defense Act" (FADA) in Congress. [Deseret News, 5/18/15]

FADA Bars Federal "Discriminatory Action" Against Those Who Oppose Homosexuality, Same-Sex Marriage. According to the text of FADA:

Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage. [H.R. 2802, introduced 6/17/15]

National Review Online: FADA Would Prevent "Punishing The Exercise Of Religion." Writing in the National Review Online, editor Rich Lowry argued that supporters of same-sex marriage should endorse FADA if they "truly have no interest in punishing the exercise of religion they find objectionable":

If supporters of same-sex marriage truly have no interest in punishing the exercise of religion they find objectionable, they can sign off on legislation to prevent it. Utah senator Mike Lee, a Republican, has a bill called the First Amendment Defense Act -- yes, it's come to that -- protecting organizations from government retaliation over their opposition to gay marriage. [National Review Online, 6/30/15]

Hot Air: FADA Would "Keep Progressives From Using... The IRS To Destroy Churches." In a post for Hot Air, Ed Morrissey claimed FADA would protect churches from being destroyed by the IRS:

The current FADA would at least keep progressives from using the massively destructive power of the IRS to destroy churches and the benefits they provide to American communities, which is one key reason why the tax exemption exists in the first place. Republican leadership in both the House and Senate should expedite the process for FADA, and perhaps set an example for the states to follow. [Hot Air, 7/13/15]

Daily Signal: FADA Is "Common Sense" Protection For Opponents Of Same-Sex Marriage. Ryan T. Anderson, a senior research fellow at the Heritage Foundation, endorsed FADA in a post for The Daily Signal, writing:

FADA is a common sense policy. It would ensure that no federal agency will ever revoke non-profit tax-exempt status or deny grants, contracts, accreditation, or licenses to individuals or institutions for following their faiths' teachings about the nature of marriage as a union between a man and a woman.

[...]

But the politics of FADA are just as important as the policy. Far too few appreciate the grave risks to religious liberty in the wake of the Supreme Court's ruling, and the most animated participants in the debate so far are those on the left. The best way to draw attention to this crucial issue and rally the American people is swift action designed to generate public awareness and maximize the contrast with the left's effort to trample over freedom of conscience. [The Daily Signal, 7/16/15]

RedState Instructs Readers To Call Congressional Reps In Support Of FADA. A "Member Diary" on RedState.com urged readers to call members of Congress in support of the legislation. [RedState.com, 6/26/15]

Anti-LGBT Organizations, Including Hate Groups Endorse FADA

Family Research Council: FADA Is "Vital Legislation." In a press release immediately following FADA's introduction, the Family Research Council (FRC) praised FADA and urged Congress to pass the bill:

The First Amendment Defense Act reflects our nation's history of recognizing, respecting and protecting the moral and religious beliefs of people and faith-based organizations. This common-sense measure would prevent the federal government from penalizing someone because they hold to a view of marriage as between one man and one woman.

[...]

We urge Congress to act to pass this vital legislation. [Family Research Council, 6/17/15]

  • FRC Has Been Designated A Hate Group By The Southern Poverty Law Center. [Talking Points Memo, 11/24/10]

The American Family Association Issues Action Alert In Support of FADA. The American Family Association (AFA) issued an "Action Alert" to "one million-plus friends" in support of FADA:

The American Family Association is encouraging Americans to contact their U.S. representatives about this newly proposed legislation that will protect churches and faith-based organizations from government penalties or actions regarding their religious convictions. [American Family Association, 6/20/15]

  • AFA Has Been Designated A Hate Group By The Southern Poverty Law Center. [Southern Poverty Law Center, accessed 7/24/15]

Liberty Counsel Calls for "Quick And Decisive Action" On FADA. The action arm of the Liberty Counsel called on Congress to pass FADA and announced it would hand deliver petitions advocating for FADA to House and Senate leadership:

Liberty Counsel Action is calling for the passage of the First Amendment Defense Act as soon as possible.

We are calling for quick and decisive action on the bill!

[...]

On Tuesday, Liberty Counsel Action will hand deliver your petition calling for the passage of the First Amendment Defense Act to the heads of these two committees, and to the House and Senate leadership. [Liberty Counsel Action, 6/20/15]

  • Liberty Counsel Has Been Has Been Designated A Hate Group By The Southern Poverty Law Center. [LGBTQ Nation, 3/3/14]

National Organization For Marriage "Doing All We Can" To Pass FADA. The National Organization for Marriage (NOM) announced its support for FADA, writing:

We are doubling our efforts at NOM, doing all we can to help Senator Lee and Representative Labrador move their vital legislation through the Senate and the House of Representatives. On your behalf, we will always defend the right of all citizens to live out their religious or moral beliefs without fear of discrimination or even prosecution. There's no question that we are standing behind FADA -- and we urge you to do so, as well. [National Organization for Marriage, 6/19/15]

FADA Would Codify A Broad Right To Federal Anti-LGBT Discrimination 

ACLU: FADA Would "Open A Pandora's Box Of Taxpayer Funded Discrimination." Ian S. Thompson, legislative director for the American Civil Liberties Union, highlighted FADA's far-reaching consequences:

[P]rominent members of the House of Representatives, as well as leading anti-LGBT organizations, are pushing a bill - disingenuously titled the First Amendment Defense Act - that would open the door to unprecedented taxpayer-funded discrimination against LGBT people, single mothers, and unmarried couples.

Its parade of horribles would:

  • allow federal contractors or grantees, including those that provide important social services like homeless shelters or drug treatment programs, to turn away LGBT people or anyone who has an intimate relationship outside of a marriage
  • let commercial landlords violate longstanding fair housing laws by refusing housing to a single mother based on the religious belief that sexual relations are properly reserved for marriage
  • permit a university to continue to receive federal financial assistance even when it fires an unmarried teacher simply for becoming pregnant
  • permit government employees to discriminate against married same-sex couples and their families - federal employees could refuse to process tax returns, visa applications, or Social Security checks for all married same-sex couples
  • allow businesses to discriminate by refusing to let gay or lesbian employees care for their sick spouse, in violation of family medical leave laws [ACLU, 7/20/15]

FADA Would "Nullify" Current Federal LGBT Protections.  Slate's Mark Joseph Stern described the impact FADA would have on existing federal protections for LGBT people:

What effect would all of this densely packed legalese have in practice? To start, it would instantly revoke every federal gay rights measure ever passed and pre-emptively nullify any future measures. President Obama's LGBT nondiscrimination order would be entirely undermined: Federal contractors would only need assert that gay sex and gay marriage violate their "moral convictions," and they could fire gay employees with impunity. Federal grantees, such as homeless shelters and drug treatment programs, could turn away gay people at the door. Businesses could refuse to let gay employees care for a sick spouse, in contravention of medical leave laws. Even low-level government employees could refuse to process gay couples' tax returns, Social Security checks, or visa applications. [Slate, 7/23/15]

HRC: FADA Is "Tantamount To State Sanctioned Discrimination." The Human Rights Campaign (HRC), the largest national LGBT rights organization, declared that FADA amounts to "state sanctioned discrimination":

This Act would allow organizations and businesses contracting with the federal government to circumvent critical federal protections designed to protect same-sex couples and their families from harmful discrimination.  It would also enable federal employees to refuse to fully perform their duties if they believe they conflict with their objection to same-sex marriage.  For example, an employee at the Department of Veterans Affairs could refuse to process a claim for survivor benefits for the same-sex spouse of a servicemember.

Following the U.S. Supreme Court decisions in U.S. v. Windsor and Obergefell v. Hodges, same-sex married couples are entitled to all federal spousal benefits regardless of where they live. Under this Act, however, individual businesses could run roughshod over the civil rights of these couples and deny them the spousal benefits they have earned and deserve.  Employers could refuse to approve an individual's request for FMLA leave to care for a sick same-sex spouse, or file an employee's spousal benefits as married in an ERISA plan based on their religious objection to same-sex marriage. [Human Rights Campaign, 7/17/15]

FADA Is Built On Debunked Right-Wing Talking Points

Myth: FADA Is "Crucial" To Protect Tax-Exempt Status Of Churches. In a press release announcing its support for FADA, the American Family Association stated that FADA was crucial to protect the tax-exempt status of churches:

The bill, says AFA, is crucial because if it passes, for example, the government could not revoke the tax-exempt status of churches whose leadership refuses to perform same-sex weddings because of religious convictions. [American Family Association, 6/20/15]

Churches Have Long Legally Discriminated Against Women Without Losing Tax-Exempt Status. Tax and legal experts debunked the notion that churches are now in danger of losing their tax exempt status, noting that religious institutions have long legally discriminated against women without losing their tax-exempt status:

[T]he religious right was galvanized in the 1970s by the IRS's revocation of the tax-exempt status of Bob Jones University over its policy banning interracial dating. That revocation-upheld by the Supreme Court-was a result of an IRS rule that permits the agency to deny or revoke a non-profit's tax-exempt status if it violates a fundamental public policy (in that case, public policy against race discrimination).

The Bob Jones case is an essential part of the conservative movement's institutional memory of what they consider to be government overreach, particularly by the IRS, and undue government interference with religious affairs and religious freedom. As historian Randall Balmer has documented, Bob Jones University's loss of its tax-exemption mobilized the religious right more than abortion.

[...]

Richard Schmalbeck, a tax expert at Duke Law School, said the principle in Bob Jones has "not been applied broadly," noting, for example, that it hasn't been extended to deprive all-women's colleges of their tax-exempt status. Caroline Mala Corbin, a professor at the University of Miami Law School, reiterated what she told me last year: that if the IRS and the courts had not applied the Bob Jones principle to revoke the tax exempt status of organizations that discriminated based on gender, it seemed unlikely that they would extend this principle to sexual orientation discrimination. What's more, she said, federal law bans race discrimination, demonstrating a broad consensus to protect as fundamental public policy. Given that discrimination based on sexual orientation has not been banned by any federal law, we are far from such a consensus on sexual orientation discrimination. And even though federal law bans discrimination based on gender, the Bob Jones principle has never been extended to tax-exempt organizations that discriminate based on gender.

Think about it this way: there are religious denominations that ban women's ordination, and still have tax-exempt status. [Religiondispatches.org, 5/10/15]

Myth: Religious Schools In Danger Of Losing Tax-Exempt Status. In a newspaper op-ed  that explained his reasons for introducing FADA, Sen. Mike Lee (R-UT) said the bill would protect the tax-exempt status of religiously affiliated schools that oppose same-sex marriage:

[U]nder this bill the IRS could not revoke the tax-exempt status from any of the tens of thousands of religiously affiliated schools in America -- pre-schools through college -- whose religious convictions dictate that they maintain the traditional definition of marriage. [Deseret News, 6/18/15]

Los Angeles Times Editorial Board: "No Sign That The IRS Has Any Plans" To Target Religious Schools. In an op-ed denouncing FADA as "unnecessary," the Los Angeles Times Editorial Board rejected the notion that religiously affiliated schools are in danger of losing their tax-exempt status due to the Obergefell decision:

There is no sign that the IRS has any plans to try to revoke the tax-exempt status of religious schools that oppose same-sex marriage. In fact, as the ACLU notes, since 1983 the agency has made no move to disturb the tax-exempt status of religious schools that have policies against interfaith marriages or remarriage after divorce. A concern about the tax-exempt status of religious schools is no reason to enact the First Amendment Defense Act -- and there are many other reasons to oppose the bill. [Los Angeles Times, 7/21/15]

These Myths Are Part of Conservative Media's Long-Standing Religious Liberty Fearmongering Campaign. These talking points are part of a larger "religious liberty" misinformation campaign by conservative media to justify anti-LGBT laws. [Media Matters, 10/10/12, 2/26/14, 9/23/14, 4/2/15, 7/9/15

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