First Amendment Defense Act

Provisions

The bill provides that 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."

Timeline

The FADA was introduced into both the House and Senate on the same day (June 17, 2015), by Mike Lee and Raul Labrador. As of November 21, 2016, the House version had 172 co-sponsors, and the Senate version 34. Also as of that date, the House bill had not been considered by either of the two committees it had been referred to.

Support

When asked by Heritage Action, FRC Action, and the American Principles Project if they would pass the bill in their first 100 days in office, three of the top four Republican presidential candidates in the 2016 election said they would, the exception being Donald Trump. It was also supported by the Family Research Council, the American Family Association, and the Liberty Counsel, among other groups, shortly after it was introduced. On September 22, 2016, President Donald Trump changed his mind and said in a press release, "If I am elected president and Congress passes the First Amendment Defense Act, I will sign it to protect the deeply held religious beliefs of Catholics and the beliefs of Americans of all faiths."

Opposition

On July 21, 2015, the Los Angeles Times editorial board wrote that FADA was "unnecessary and could allow discrimination against gays and lesbians." Later that year, Walter Olson of the Cato Institute wrote in Newsweek that the bill does not "try to distinguish rights from frills and privileges," and also criticized it for only protecting those who opposed same-sex marriage, not those who supported same-sex marriage or cohabitation or non-marital sex. It has also been criticized by Ian S. Thompson, legislative director for the American Civil Liberties Union, who claimed that it would, if passed, "open the door to unprecedented taxpayer-funded discrimination against LGBT people."

Several states debated bills similar to FADA throughout 2015 alone: Colorado, Georgia, Hawaii, Maine, Michigan, Montana, Nevada, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming. The efforts were unsuccessful in Montana, South Dakota, Utah, West Virginia and Wyoming.

Opposition in many of these states came from both the public and from large corporations. In Georgia, the bill passed the Senate and the House but was blocked by Governor Nathan Deal, who stated that "I think what the New Testament teaches us is that Jesus reached out to those who were considered outcasts." The same thing happened in Arizona; the proposed bill passed the state’s House and Senate but was vetoed by Governor Jan Brewer.

Although the bill in Georgia never became law, bills similar to FADA did pass in Indiana and Arkansas. However, the bills were quickly revised following the public’s reaction. In addition to the public’s backlash, “One big thing that spurred Indiana's revisions -- and other states not to enact such laws -- was pressure from leading organizations and businesses, including major companies such as Apple, Walmart and Salesforce, as well as sports associations like the NCAA, NBA and NFL.”. This pressure from large corporations with strong economic holdings was present in Georgia, too: “A total of 440 companies in the Fortune 500 have a presence in Georgia, according to the state's government. Georgia United Against Discrimination reports that over 400 [of those] companies have come out against the measure, citing tweets from business leaders like Unilever CEO Paul Polman, computer entrepreneur Michael Dell and Microsoft President Brad Smith.” Some companies, such as 373K, are planning on moving out of Georgia because they worry that the bill will make it "more difficult to recruit workers."

Many major news corporations, including the New York Times, NBC, The Washington Post, CBS, and CNN, have also published articles bringing to light some of the potential issues with the bill.

There has also been backlash against the bill in the religious community. Over 3,000 faith leaders and clergy from across the US signed a letter sent to Utah representative Jason Chaffetz, chairman of the U.S. House Committee on Oversight & Government Reform, and Maryland representative Elijah Cummings, Ranking Member of U.S. House Committee on Oversight & Government Reform, voiced serious concerns about the bill: “Rather than protecting the First Amendment, this legislation actually undermines true religious liberty. The religious liberty on which our nation was founded guarantees us the freedom to hold any belief we choose and the right to act on our religious beliefs — but it does not allow us to harm or discriminate against others or to infringe on the religious beliefs of others.”

The faith leaders and clergy who sent the letter “serve communities across the United States—Baptists, Jews, Muslims, Catholics, and so many others—and are unified by the belief that this legislation does nothing to protect religious liberty. Rather, we believe that draconian legislation like this actually undermines the true spirit of religious liberty by favoring one religious viewpoint over another and, in the process, discriminating against LGBTQ people, single mothers and unmarried couples.”

The letter makes it clear that their dissent with the bill has nothing to do with them sanctioning or not sanctioning LGBT relationships but rather is about a unified belief in not discriminating against anyone or favoring one religion over others: “Further, though people of faith are not a monolith and all are not in agreement on whether their faith sanctions LGBT relationships, we cannot in good conscience support legislation that favors one religious viewpoint over another and in the process discriminates against LGBT people, single mothers and unmarried couples.”

The bill is also facing scrutiny from legal officials. Many have voiced similar concerns about the bill regarding its placing more value on the beliefs of some religions over others. Jennifer Pizer, Law and Policy Director at Lambda Legal, explained that "This proposed new law violates both Equal Protection and the Establishment Clause by elevating one set of religious beliefs above all others.”

When a bill similar to FADA was passed in the state of Mississippi, ordained clergy led a lawsuit on the basis that "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."

"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."

Pizer’s point that the passage of this bill would offend “enormous numbers of Americans” is reflected in data that was published by the Human Rights Campaign. According to the study, conducted in September 2015, “A large majority [of American adults] opposed such a bill, with only 28 percent supporting and 63 percent remaining opposed.” The study concluded that “There are some issues that divide Americans. This is not one of them.”

State versions

A version of the FADA was introduced in Georgia on January 21, 2016, by Greg Kirk, a Republican state senator. The bill would, if passed, protect government employees who do not want to issue marriage licenses to same-sex couples because they object to the practice for religious reasons. Kirk cited Kentucky county clerk Kim Davis as an example of the people who would be affected by the law. This bill was passed by the Georgia State Senate on February 19. The bill was then sent to the State House for consideration. Governor Nathan Deal vetoed this bill in March 2016.

An even more limiting bill in Mississippi, HB 1523, was passed and would have gone into effect in 2016 had Judge Carlton Reeves not blocked the measure three days before it would have taken effect.