When Donald Trump was elected president in 2016, Republicans in Congress were very optimistic this would mean they could finally pass a bill legalizing discrimination against same-sex couples. This week, Sen. Mike Lee (R-UT) followed through, reintroducing the so-called “First Amendment Defense Act” (FADA).
FADA singles out a specific set of conservative beliefs for special dispensation to discriminate: those who oppose same-sex marriage and those who oppose sex outside of marriage. The bill defines these privileges as such:
Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person speaks, or acts, in accordance with a sincerely held religious belief, or moral conviction, that —
(1) marriage is or should be recognized as a union of—
(A) one man and one woman;
(B) two individuals as recognized under Federal law; or
(2) sexual relations outside marriage are improper.
The language here is fairly insidious. A person who is held accountable for treating others unfairly because they oppose their same-sex relationship or their decision to engage in premarital sex would be considered a victim of “discriminatory action.” They would be entitled to cite FADA as a defense that they should not be in any way punished for their own discriminatory actions.
FADA protects this group from broad actions. The legislation stipulates they can’t be denied any tax benefit and they can’t be denied any access to “any Federal grant, contract, subcontract, cooperative agreement, guarantee, loan, scholarship, license, certification, accreditation, employment or other similar position or status.”
In a statement accompanying the bill’s introduction, Lee openly admitted that he wants to make sure organizations and individuals can discriminate without consequence. FADA ensures, he said, “that federal bureaucrats will never have the authority to require those who believe in the traditional definition of marriage to choose between their living in accordance with those beliefs and maintaining their occupation or their tax status.”
- Government employees could refuse to serve married same-sex couples and their families, such as processing tax returns, visa applications, or Social Security checks.
- Employers could refuse to grant employees family or medical leave to take care of their same-sex spouses.
- Employers could fire an unmarried female employee for getting pregnant.
- Hospitals could refuse to allow visitation to same-sex partners and spouses.
- Social services like homeless shelters, drug treatment programs, and adoption agencies could turn away anyone who has had sex outside of a man-woman marriage.
- Commercial landlords could refuse to provide housing to a single mother.
On his website, Lee offers a FAQ attempting to counter these examples. He insists that none of those forms of discrimination will take place, arguing that FADA doesn’t alter the laws that currently protect against them. This ignores the fact that the entire point of the legislation is to exempt individuals and organizations from having to follow those laws, whether it changes them or not.
This is the third time Congress has considered FADA, which was first introduced a week before Supreme Court’s 2015 marriage equality ruling. A leaked draft of an executive order President Trump was considering during his first month in office also mirrored FADA’s language, though this particular EO never manifested.
This type of legislation has also advanced on the state level. Mississippi passed a similar law in 2016, which remains on the books.
The Senate bill already enjoys 21 co-sponsors, all of whom are Republican. The Republican National Committee has endorsed the legislation.