The First Amendment Defense Act is the nuclear version of the so-called “religious freedom” laws that have appeared across the country, most infamously in Mike Pence’s Indiana. The Republican House will surely pass it, the Senate will pass it unless it’s filibustered by Democrats, and President-elect Trump has promised to sign it.
If it becomes law, FADA will be the worst thing to happen to women and LGBT people in a generation.
Like state “religious freedom restoration acts,” FADA’s basic principle is that it’s not discrimination when businesses discriminate against LGBT people if they have a religious reason for doing so. The most famous situations have to do with marriage: wedding cake bakers who say that if they bake a cake, they’re violating their religion; Kim Davis, the government clerk who said that signing a secular marriage certificate was a religious act that she could not perform.
But those stories are a red herring. The more important cases are ones like hospitals refusing to treat LGBT people (or their children), pharmacies refusing to fill birth control prescriptions, businesses refusing to offer health benefits to a same-sex partner, and state-funded adoption agencies refusing to place kids with gay families. Underneath the rhetorical BS, that’s what FADA is all about.
First, the bill applies to any corporation, organization, or person who “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.”
Notice how broad that is: any business, agency, or individual, including government employees, hospitals, or huge businesses like Hobby Lobby or Chick-Fil-A. Old-age homes and hospices that turn away gay people – yes, this has actually happened – are covered. Hospitals that refuse a same-sex partner visitation rights – covered. National hotel chains that refuse to rent rooms to gay couples (or unmarried straight ones) – covered.
And notice that it applies not just to religious beliefs about same-sex marriage, but also to sexual conduct in general. Translation: contraception, sex education, treatment of STDs – all of these are part of the bill. If a national pharmacy chain wants to refuse to fill prescriptions for the “morning after pill,” if a company wants to fire someone for being pregnant out of wedlock or becoming HIV positive, if a public school wants to stop teaching sex ed – all covered.
And finally, since “moral conviction” is added in there, it doesn’t matter that Jesus never mentioned health insurance coverage. No actual religious grounds are necessary; just some moral conviction that the only allowable sex is sex within a heterosexual marriage.
What does “covered” mean? Essentially, FADA prohibits the federal government from doing anything about any of these acts. Specifically, it lists revoking tax exempt status (as it did for Bob Jones University because of its racist policies, in the case that started the whole “religious freedom” movement) and refusing any federal grant, contract, or certification.
But then the bill adds “otherwise discriminate against such person,” which actually means anything at all, so long as the government is taking some adverse action. (“Person” includes companies and organizations, remember.) For example:
- The current government policy requiring federal contractors – 20% of the entire U.S. workforce – not to discriminate against LGBT people will be immediately revoked. Contractors can legally fire people for being gay (or transgender).
- A governor can order that, in his state, no clerk anywhere may certify a same-sex marriage, and the federal government could do nothing about it.
- If a restaurant or hotel posts a sign saying “NO FAGGOTS ALLOWED,” FADA prohibits the government from “discriminating” against it by initiating an enforcement action under public accommodations laws. Gay couples may be refused hotel rooms anywhere in the country.
- If a company refuses to let a person take time off to take care of her same-sex partner in the hospital, the government cannot pursue any action under relevant employment laws.
- If a state-funded adoption agency refuses to place children with legally married same-sex couples, the government cannot withdraw its contracts with that agency. (This was a key request by Catholic adoption agencies, which receive the bulk of their funding from the government.)
- 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.
- All schools and universities can discriminate against LGBT people, regardless of Title IX (as long as they link that discrimination to a view about marriage, which is quite easy to do). Universities may turn away gay applicants, deny LGBT clubs, and fire all gay faculty and staff members, with no penalties from the federal government.
- Any hospital may refuse to provide contraception, reproductive health care (including consultations of any kind), or health care of any kind to unmarried people or gay people, and not lose accreditation.
- And yes, however unlikely, your boss could fire you for having (straight) premarital sex, and no federal agency could come after you.
Oh, and then there’s that third point to consider. FADA has one of the strangest “pre-emption” clauses of any bill I’ve ever seen. Normally, federal bills either pre-empt state ones, or have a “no pre-emption” clause, saying that state laws take precedence. FADA has some of each, stating that “Nothing in this Act shall be construed to preempt State law, or repeal Federal law, that is equally or more protective of free exercise of religious beliefs and moral convictions.”
In other words, if a state has a non-discrimination law against gay people, FADA supercedes it, prohibiting any federal action based on that law. But if a state has a law that protects the religious party more, FADA doesn’t supercede it.
Under that language, state level actions against anti-gay corporations, organizations, and individuals would not be prohibited – but the federal government could offer no assistance, and indeed could not do anything at all, even if the anti-gay party is in clear violation of state law. In other words, states with more protections for women or LGBT people – you’re on your own out there.
Overall, FADA makes LGBTs officially second-class citizens of the United States – more like those in anti-gay countries like Putin’s Russia. We may be fired, barred from entry, denied services, denied health care, denied education, and denied legitimacy in ways that straight married people (and probably most straight unmarried people) do not. My fully legal marriage isn’t worth the paper it’s printed on, because no one anywhere has to respect it, not even a government employee.
As you can see, FADA effectively overturns Obergefell without anyone having to file a lawsuit, because it creates a loophole as large as the right to marry itself. Any governor, mayor, or clerk could proffer a “moral objection” to same-sex marriage, and stop all employees under his or her authority from registering gay couples or certifying gay weddings. And even absent such action, any employer or business can act as though the marriage simply does not exist.
But FADA goes much further than marriage. It attacks unmarried women, who may be denied health care by state hospitals, employers, and insurance companies. It makes it impossible for the federal government to do anything in a host of discriminatory situations. It turns back the clock not just two years, to before Obergefell, but twenty years, to a time when simply being gay was criminal.
And it has the support of the House, the Senate, and the President-Elect.