First Amendment Defense Act (FADA) Would Be ‘Devastating’ for LGBTQ Americans

 Earlier this month, Senator Ted Cruz of Texas and Senator Mike Lee of Utah, through his spokesperson said they plan to reintroduce an embattled bill that barely gained a House hearing in 2015. But this time around, they said, the First Amendment Defense Act (FADA) was likely to succeed due to a Republican-controlled House and the backing of President-Elect Donald Trump.
fadawould prohibit the federal government from taking “discriminatory action” against any business or person that discriminates against LGBTQ people. The act distinctly aims to protect the right of all entities to refuse service to LGBTQ people based on two sets of beliefs: “(1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.”
Ironically, the language of the bill position the right to discriminate against one class of Americans as a “first amendment” right, and bans the government from taking any form of action to curb such discrimination—including withholding federal funds from institutions that discriminate. FADA allows individuals and businesses to sue the federal government for interfering in their right to discriminate against LGBTQ people and would mandate the Attorney General defend the businesses.

FADA was first filed in the House and Senate in 2015, but was met with protests from Democrats and resulted in just one House hearing amid concerns that Obama would veto the bill. It is currently co-sponsored by 171 House Republicans and just one Democrat (Daniel Lipinski of Illinois.)

State-level legislation similar to FADA has failed in recent years, usually resulting from lawsuits and nationwide boycotts. When Vice President-elect Mike Pence passed a “religious freedom” bill as governor of Indiana in March 2015, it was met with protests, financial losses from businesses that pulled operations from the state. It ultimately required an amendment issued in April to protect LGBTQ people from the bill’s discrimination.

Mississippi’s HB 1523 is nearly identical to FADA. The state law, passed in 2016 but quickly blocked by a judge, allows people and businesses in the state to refuse service to LGBTQ people based on three sets of religious beliefs: “Marriage is or should be recognized as the union of one man and one woman; sexual relations are properly reserved to such a marriage, and male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

A lawsuit brought by Mississippi religious leaders alleges the state law actually violates religious freedom by determining that religious belief necessitates anti-LGBTQ discrimination. The group of ordained ministers suing the state said in the lawsuit, Barber v. Bryant, that Mississippi violates its right to freedom of religion “because persons who hold contrary religious beliefs are unprotected—the State has put its thumb on the scale to favor some religious beliefs over others.”

Barber v. Bryant is currently at the Fifth Circuit Court of Appeals after a federal trial court ruled HB 1523 violates the federal Equal Protection and Establishment Clauses. Pizer said the case stands as an example of the legal explosion that would occur in reaction to FADA.

“If Congress were to pass the federal FADA as currently written, and the next president were to sign it into law, I’m confident heads would spin at how fast the constitutional challenges would fly into court,” Pizer said, adding “we’re likely to have a great many allies because these attempts to misuse religion for discrimination offend enormous numbers of Americans who cherish both religious liberty and equality for all.”

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