One month ago on Tuesday, a gunman shot and killed 49 people at a gay nightclub in Orlando, Florida. House Republicans plan to mark this milestone with a hearing on a bill that would enable widespread discrimination against LGBT people. The legislation, ironically named the “First Amendment Defense Act” (FADA) rests on the idea that discrimination should be excused when it is justified by religion.
By its own explicit terms, FADA grants special rights to individuals 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.” In that sense, it closely resembles a Mississippi law that a federal judge halted earlier this month, in part because it extends special treatment to individuals with anti-LGBT religious beliefs.
Under, the core provision of FADA “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 objection to marriage equality or a faith-based belief that sexual relations must be reserved to a marriage between people of the opposite sex. Subsequent provisions define the term “discriminatory action” to include a broad range of sanctions against religious objectors who themselves engage in discrimination. The government cannot deny tax subsidies to religious objectors who discriminate against LGBT people, or deny them a grant or benefit, or, under a catch-all provision, “otherwise discriminate against such person.”
FADA, in other words, requires the federal government to actively subsidize anti-LGBT individuals, at least if those individuals would otherwise qualify for a subsidy if not for their opposition to marriage equality. Additionally, because of the provision protecting religious objectors who believe that “sexual relations are properly reserved to” opposite sex marriages, FADA also grants a broad array of special rights to people who target many straight couples.
Though the bill’s title, the “First Amendment Defense Act,” suggests that it would preserve values enshrined in the First Amendment, nothing in that amendment permits religion to be used as a shield for discrimination, and the Supreme Court has consistently rejected claims to the contrary.
Maurice Bessinger was a bigot who owned a chain of barbecue restaurants in South Carolina. He believed that the Civil Rights Act of 1964, with its ban on whites-only lunch counters, “contravenes the will of God,” and he brought a lawsuit seeking a religious exemption from this law. The Supreme Court disagreed in Newman v. Piggie Park, ruling unanimously that Bessinger’s claim was “patently frivolous.”
Similarly, when Fremont Christian School claimed a right to give inferior compensation to many of its women employees because of its religious belief that “in any marriage, the husband is the head of the household and is required to provide for that household,” a federal appeals court rejected the school’s request for an exemption from anti-discrimination law.
Additionally, in a case that is strikingly similar to the kind of benefits FADA would give to religious objectors who engage in discrimination, Bob Jones University claimed that it should continue to receive tax subsidies despite its religiously motivated policy that “students who date outside of their own race will be expelled.” The Supreme Court rejected this claim as well, explaining that “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”
FADA would authorize a different kind of discrimination — primarily anti-LGBT discrimination as opposed to race or gender discrimination — but the overarching principle remains the same. The First Amendment simply does not give religious objectors a license to violate civil rights laws.
FADA, moreover, does not simply try to wrap itself in a Constitution that does not exist, it violates the Constitution that does exist outright.
In Romer v. Evans, the Supreme Court struck down a Colorado state constitutional amendment forbidding civil rights protections for gay men, lesbians and bisexuals. The amendment, Justice Kennedy explained for the Court, violated the Constitution because it transforms sexual minorities into a legal underclass. “Laws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” Kennedy wrote. “A law declaring that in general, it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”
FADA is just like the amendment in Romer. It explicitly strips same-sex couples of much of their ability to seek aid from the federal government by giving special protection to religious objectors who discriminate against such couples.
Similarly, Obergefell v. Hodges, the Court’s 2015 marriage equality decision, held that same-sex couples must be granted the right to marry “on the same terms and conditions as opposite-sex couples.” FADA violates this principle as well. The bill permits couples joined in “the union of one man and one woman” to enjoy the full range of rights afforded by federal law, while stripping many of those rights from same-sex married couples.