Passing the “First Amendment Defense Act” (FADA) introduced by Sen. Mike Lee (R-UT) has been anti-LGBT conservatives’ top priority since the Supreme Court brought marriage equality to all 50 states. It’s part of the National Organization for Marriage’s (NOM) post-Obergefell plan and Republican presidential candidate pledge, and the Family Research Council (FRC) mentions it almost daily. Lee joined NPR this week to defend the bill, basically admitting that all it does is enable anti-gay discrimination.
Lee framed his concern as one about the government discriminating against religious institutions — for discriminating against people in same-sex marriages. It’s the latter he wants to allow by ensuring that the government never penalizes any religious institution that refuses to recognize a same-sex couple’s marriage, or employ them, house them, or serve them.
For example, he said that religious schools should be allowed to turn away gay students and faculty because those are “decisions on the basis of religious belief.” He explained, “The college in question ought to be able to decide what kinds of people that it wants teaching because that, in turn, influences what will be taught by the university. It becomes the university’s speech.”
Host Robert Siegel asked how far Lee’s protections would go, such as whether a neighborhood could ban the sale of property to same-sex couples. Rather than rejecting such blatant discrimination as wrong, Lee simply suggested “that would probably not pass muster” under the Constitution.
Lee seemed to reject the notion that anti-gay discrimination is a major problem. “We’re not, moreover, in a society in which people who are either gay or lesbian who are married to a member of the same sex, for example, are subject to widespread discrimination.” This is despite the fact that only 22 states even offer any kind of nondiscrimination protections based on sexual orientation.
In explaining why FADA is “so important,” NOM highlights Aaron and Melissa Klein, the Oregon bakery owners who have been fined for refusing to sell a wedding cake to a same-sex couple. Now that marriage equality is legal everywhere, NOM warns, “Imagine what will occur.” FRC similarly argues that FADA “protects individuals or entities that believe, teach or establish in codes of conduct that sexual intimacy is reserved for natural marriage.”
When Lee first introduced the bill in 2013 under the moniker of “Marriage and Religious Freedom Act,” following Rep. Raúl Labrador (R-ID), who first introduced it in the House, LGBT groups pointed out the number of ways it could be used to discriminate against same-sex families. As the Human Rights Campaign suggested as an example, the legislation would protect the job of a federal worker processing tax returns, visa applications, or Social Security applications could refuse to recognize a same-sex couple’s marriage and still be protected in his job.
The ACLU has since also explained that FADA would “eviscerate” the LGBT nondiscrimination protections President Obama established in the federal workforce last year, calling it “a Pandora’s Box of taxpayer-funded discrimination against same-sex couples and their children.”
Lee’s priority remains that “there ought not be a penalty attached to a religious belief.” In other words, anti-gay discrimination should be free to run rampant.