Gay Marriage and Religious Rights: Say Nada to FADA

Demonstrators stand on the front steps of the federal building waving a rainbow flag in protest of Rowan County clerk Kim Davis' arrival to attend a contempt of court hearing for her refusal to issue marriage certificates to same-sex couples at the United States District Court in Ashland, Kentucky, September 3. A new bill, the First Amendment Defense Act (FADA), has emerged to address conflicts between same-sex marriage and religious liberty; but it may open a can of worms, the author writes. Chris Tilley/Reuters

When Kentucky county clerk Kim Davis found herself fighting contempt charges after refusing to let her office issue marriage licenses to gay couples or anyone else, the National Organization for Marriage declared her case to be "powerful evidence of why it is simply imperative that we enact the First Amendment Defense Act (FADA) at the federal and state levels.… Until FADA is enacted by Congress and state legislatures, we will have more and more Kim Davis's."

For many readers, that's the first they will have heard of the First Amendment Defense Act, a relatively new bill sponsored in the House and Senate respectively by Rep. Raul Labrador (R-Idaho) and Sen. Mike Lee (R-Utah). FADA has quickly emerged as a key legislative goal of social conservative groups who have rolled up endorsements on its behalf from such GOP lawmakers as Sens. Ted Cruz and Marco Rubio, and, notably, the Republican National Committee last month.

The bill purports to address "conflicts between same-sex marriage and religious liberty" and declares the importance of "preventing government interference" with "the free exercise of religious beliefs and moral convictions about marriage."

Before going further, let me note that many across the political spectrum agree that this area raises some genuine First Amendment concerns that might merit legislators' attention. For example, in its 1983 Bob Jones decision the Supreme Court declared it proper to strip a racially discriminatory institution of an otherwise applicable tax exemption. Were the logic of that case someday to be pushed into other areas of discrimination, it might endanger tax exemptions of, e.g., institutions associated with churches that refuse to ordain women. (A few law professors and journalists seem to like this idea; I'm myself horrified by it.) Mayors and other local government figures have lately threatened to wield official powers to keep businesses such as Chick-fil-A out of town because of their perceived politics, an affront to those businesses' rights that would probably lose a First Amendment challenge should it get to court.

But is FADA drafted carefully to address problems like these without creating new problems of its own? Its key clause reads as follows:

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 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.

The bill goes on to define the sweeping term "discriminatory action" to include not only taxation, license denials and negative treatment in public employment but also denial of government grants, contracts and so forth, ending in a catchall ban on any manner by which the federal government might "otherwise discriminate against such person."

So for openers, FADA doesn't try to distinguish rights from frills and privileges: So far as I can tell, someone who is denied an ambassadorship or an invitation to a White House dinner because of disliked political views is covered, just like someone fired from his or her job. And "his or her" isn't quite right either: The bill covers artificial legal persons both profit-making and nonprofit, while also defining "federal government" to include all three branches and every element thereof.

The sum of this would be to create an extremely broad new category of anti-discrimination law—retaliatory discrimination based on a certain set of beliefs or acts—which would offer protected group status to powerful institutions as well as individuals, and afford very valuable legal leverage: recipients of federal subsidies, for example, could challenge any cutoff as motivated at least "partially" by political animus.

Astoundingly, the protection would run in one direction only: It would cover those who favor traditional definitions of marriage, while leaving those who might see merit in same-sex marriage or cohabitation or non-marital sex perfectly exposed to being fired, audited or cut off from public funds in retaliatory ways.

In real-life governance, of course, there is no reason to think that wrongful pressure on dissenters cuts only one way: Some federal employees get targeted by their bosses for leaning right, others for leaning left. Under FADA, however, only one side gets to run to court complaining of ill treatment.

The bill would also protect trad-values folk even when they are not religiously motivated, while denying protection to their opposite numbers even when they are religiously motivated. Despite its own avowals, this isn't actually a bill framed to protect religious exercise.

There is worse to come. One can sort of imagine—even while bracing for a high volume of litigation—a law that forbade any government disparate treatment based on recipients' beliefs. But FADA also protects "acts" based on opposition to same-sex marriage.

What does that even mean? It would appear to establish legal protection for acts taken "as" federal employees, with federal money, and even acts clothed with official authority.

It's here that FADA really does seem not just to lay down a marker on behalf of future Kim Davises, but even to go much further. Relatively few government employees have marriage recordation as one of their job duties, but many of them have job duties that involve recognizing already-wed couples as married, in the handling of joint tax returns, pensions and mortgage programs, student aid programs and federal employee benefits, crime investigation and on and on. If FADA is to be taken at face value, it appears to protect a federal clerk working through a stack of survivorship benefit papers who declines to process one for a gay couple.

Those are just some of the issues as to direct federal employment; the secondary issues could be worse. Consider, for example, a nursing home paid with federal dollars whose manager doesn't care to let Al in to visit Bob, though they have been legally married for years, because that would be too much like recognizing gay marriage. May officials in Washington at least move to cut off the future flow of Bob's Medicaid checks to the home?

Under FADA, it's not clear they may. In case of doubt, the bill includes a liberal construction clause instructing courts to resolve ambiguities and doubts in favor of the side with anti-gay-marriage views.

A serious attempt to resolve the culture wars in this area might look for ways to accommodate minority religious viewpoints without harming the operations of government or the beneficiaries of public programs. Such arrangements often involve mutual employee backup or multidoor social services.

Thus a national park might accommodate one worker's Sabbath observance by juggling other employees' schedules, a health department might recognize addicts' diverse religious beliefs by ensuring that at least one drug rehab program is available to them that does not subject them to proselytizing, and so forth.

As I've written elsewhere, foster care and adoption probably serve children best under a pluralist regime in which many agencies, including some with strong religious commitments, can be there for many kinds of families.

But FADA as currently drafted isn't really an accommodation law. It's an our-guys-win law. It says that even if the government has set you up as the monopoly provider of some service or gatekeeper for some permission, you may use that monopoly or gatekeeper status against same-sex couples and their interests with entire impunity.

Should Republicans really be rushing to endorse this bill?

Walter Olson is a senior fellow at the Cato Institute's Center for Constitutional Studies.

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