Written by Don Byrd
Yesterday, the House Oversight and Government Reform Committee held a hearing on H.R. 2802, The First Amendment Defense Act (FADA). FADA prohibits the federal government from imposing certain penalties against a person “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.” Proponents argue the bill is necessary to address religious liberty concerns arising out of the Supreme Court’s same-sex marriage ruling in Obergefell.
Witnesses at the hearing presented widely contrasting views of the potential impact of this controversial legislation.
Testifying in support of the bill, U.S. Senator Mike Lee (R-UT) argued FADA would not authorize businesses to violate non-discrimination laws. Here is an excerpt from his statement:
The First Amendment Defense Act is absolutely critical to the many charitable and service organizations in this country whose convictions about marriage are fundamental to their work and mission. . . . . Now, you may hear tall tales – and some outright falsehoods – about this bill. Some may suggest that FADA would give private businesses a license to violate anti-discrimination laws with impunity. This is just not so. The bill does not preempt, negate or alter any anti-discrimination measures or civil-rights laws, state or federal. To be clear: this bill does not take anything away from any individual or group, because it does not modify any of our existing civil-rights protections.
Opponents of the bill included Law Professor Katherine Franke of Columbia University, who testified on behalf of 20 legal scholars. FADA, she argued, would have wide-ranging impact on existing non-discrimination protections. Here is an excerpt from her statement:
FADA establishes vague and overly broad religious accommodations that would seriously harm other Americans’ legal rights and protections. Instead of protecting the First Amendment, the First Amendment Defense Act likely violates the First Amendment’s Establishment Clause. The Act purports to protect free exercise of religion and prevent discrimination, yet in fact it risks unsettling a well-considered constitutional balance between religious liberty, the prohibition on government endorsement of or entanglement with religion, and other equally fundamental rights.
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In essence, FADA would incapacitate the federal government from enforcing a wide range of laws, policies, and regulations that secure and further fundamental rights to equality and liberty. For this reason, FADA does not defend the First Amendment; rather it creates and then defends a new right for non-governmental actors to discriminate in the name of religion. Even worse, FADA’s language may conscript the federal government as a partner in those very acts of discrimination.
You can watch video of the hearing and read witness statements at the hearing website.
