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The First Amendment Defense Act Will Be Back

This would effectively codify discrimination against LGBQT Americans.

Remember the First Amendment Defense Act (FADA), the “right to discriminate against LGBQT people” bill? Introduced last summer, it’s been festering away in the back corners of Congress, but in 2017, it’s likely to roar back onto the agenda — and, moreover, it’s likely to pass. If it does, president-elect Donald Trump has already pledged to sign it into law, and it will change the American landscape forever.

To understand why this bill is worrying so many LGBQT Americans, and some religious officiants too, we have to take a little walk deep into the bowels of Congress, conservative Christianity and the culture wars dominating the American landscape.

On the surface, a First Amendment Defense Act sounds nice, right? We’re all big fans of the First Amendment. The unique protections it offers, and freedom of speech, religion and the press should lie at the core of American values. But the intent of this bill, and the problem, are bound up right in the summary line: “To prevent discriminatory treatment of any person on the basis of views held with respect to marriage.”

FADA was written very specifically with one group of people in mind: Conservative Christians opposed to same-gender marriage, and furious at the rise of same-gender marriage in the U.S. The Supreme Court case affirming the right to marry, Obergefell v. Hodges, was decided just days after this legislation was introduced, and that’s not a coincidence.

OK, but if someone is opposed to same-gender marriage, surely we shouldn’t discriminate against them, right? Freedom of thought is an American value too and we shouldn’t impose our values on others. That’s a noble sentiment, but that’s not what FADA is about. Instead, the law targets “government intrusion” and what people like Mr. Trump call “bullying” in the form of regulations, laws and court decisions protecting equal access to LGBQT people. FADA isn’t about protecting people of faith, but about legitimizing discrimination. The question isn’t “can I deny service to someone who doesn’t like same-gender marriage” but “can an employer fire someone for being in a same-gender marriage” or “can I refuse to rent a hotel room to an unmarried heterosexual couple.” The answer, under FADA, could be “yes.”

FADA stipulates that the government cannot engage in “discriminatory action” (enforcing anti-discrimination laws) against someone who “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.” That means the government couldn’t revoke tax exempt status from organizations — like churches — that discriminate against LGBQT people. Nor could it set anti-discrimination policies for federal contractors.

Health care providers, businesses, people at government agencies, and anyone else could refuse service to LGBQT people without facing penalties, and all just for having a “moral conviction” that might not even include religious beliefs. Same-gender parents might not be able to adopt, LGBQT professors could be fired from both public and private universities, and single women could be unable to access sexual health care. It could all, potentially, be legal — especially in states with similar “religious freedom” bills that protect the “right” to discriminate.

This would effectively codify discrimination against LGBQT Americans, and unmarried straight couples, though they’re not likely to face the brunt of FADA. That means losing a range of anti-discrimination protections that guarantee full access to society but also fight poverty and increase opportunities. LGBQT Americans would have to watch as the government awarded benefits, contracts, tax-exempt status and other special treatment to people and organizations that discriminate against them.

Gallingly, FADA claims that the law “will encourage private citizens and institutions to demonstrate tolerance for those beliefs and convictions and therefore contribute to a more respectful, diverse, and peaceful society.” People being subjected to intolerance and discrimination, evidently, are to be excited about the opportunities to “demonstrate tolerance” for people who want to cut them out of public life.

In other words, FADA argues that freedom of religion isn’t just about the freedom to believe, and talk about your beliefs. It also requires the imposition of your values on other people — even if that infringes upon their own rights.

A similar bill in Mississippi was struck down on the grounds that it was highly discriminatory in nature. Should FADA pass and be signed into law, it would most certainly be subject to legal challenge, and it could wind up in front of the Supreme Court. The makeup of the judges on the court, and their beliefs about both jurisprudence and faith, could determine whether the United States continues to enforce anti-discrimination laws, or whether it’s about to become a two-tiered society for Conservative Christians versus everyone else — along with, as it happens, many Christians who value diversity, including the LGBQT community.

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