Sen. Mike Lee (R-UT) confirmed to BuzzFeed last week that he plans to reintroduce the First Amendment Defense Act (FADA) next term, optimistic that President Donald Trump will follow through on his pledge to sign it. It’s the latest evidence that Trump’s election portends setbacks for LGBT equality.
FADA is a bill (HR 2802) that would create a special status of protection exclusively for individuals who oppose same-sex marriage or premarital sex. The federal government would be prohibited from taking any “discriminatory action” against them, including denying tax exemptions, withholding grants or contracts, or denying any federal benefit. In other words, it would require the federal government to prop up anti-gay (and anti-sex) discrimination.
“Hopefully November’s results will give us the momentum we need to get this done next year,” Conn Carroll, Lee’s spokesman, told BuzzFeed. “We do plan to reintroduce FADA next Congress and we welcome Trump’s positive words about the bill.”
FADA co-sponsor Sen. Ted Cruz (R-TX) similarly boasted, “The prospects for protecting religious freedom are brighter now than they have been in a long time.”
Earlier this month, Congress offered the LGBT community what will probably be its last federal legislative victory for some time — if holding back a discriminatory measure can be called a victory. House Republicans had pushed for the National Defense Authorization Act to include a measure called the “Russell Amendment,” which would have required religious exemptions for every transaction the federal government makes. It would have undermined President Obama’s executive order protecting LGBT employees from discrimination, and like FADA, would have required taxpayers to support businesses and organizations that deny services to LGBT people.
The Russell Amendment did not survive conference with the Senate, but its sponsor, Rep. Steve Russell (R-OK), is not dismayed. He told BuzzFeed that the Trump administration has given him “very good assurances” to consider similar measures in the future. He didn’t specify if he was talking about FADA or more sweeping measures like his amendment that have yet to be proposed as standalone bills.
Members of Congress eager to make anti-LGBT discrimination easier might not have to cast a single vote to see the changes they desire. Former Principal Deputy Assistant Attorney General Samuel Bagenstos laid out in a new blog post his predictions for how the Department of Justice will change under a Trump administration. On LGBT rights, he predicts, as many have, that under Sen. Jeff Sessions (R-AL), the Justice Department will rescind its support for LGBT protections, including in ongoing cases. But Bagenstos also warns about how proactive it could be in the other direction:
Even worse, there is a substantial prospect that the Civil Rights Division will take an affirmatively anti-LGBT-rights position and intervene to make religious-freedom or free-speech arguments on behalf of the defendants in LGBT discrimination cases brought under state laws.
The only refuge LGBT people might find if both Congress and the White House turn against them is in the courts. For example, in July, Federal Judge Carlton Reeves, an Obama appointee, ruled against Mississippi’s HB 1523, which largely mirrors FADA’s protections for those who oppose marriage equality. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense,” he wrote.
But if FADA or similar legislation passes, LGBT people will have to fight it with the Justice Department working against them.