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Religious Tolerance logo

Religious freedom to discriminate laws:

2015-6: Part 1 of six parts:

The federal FADA:
(First Amendment Defense Act):
2015-JUN: Bills filed in House and Senate.
Description and scope of the bill.
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We use the acronym "SSM" to represent "same-sex marriage."
"LGBT" refers to lesbians, gays, bisexuals, transgender persons
and transsexuals. "LGB" refers to lesbians, gays, and bisexuals.

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2015-JUN-17: A federal bill, the First Amendment Defense Act (FADA), was filed in the House and Senate:

Representative Raul Labrador (R-ID) introduced the FADA bill to the federal House as H.R. 2802. Senator Mike Lee (R-UT) introduced a similar bill to the Senate on the same day. The Senate bill, S. 1598, states, in part:

"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." 1

The words "or acts" are shown above in color to highlight what are perhaps the most important and scary words in the entire bill! That is because the a person's religious beliefs are already protected under the First Amendment to the U.S. Constitution, and this bill is an attempt to extend that protection to discriminatory actions against others, that are based on a person's religious beliefs. For example:

  • Kim Davis, the county clerk in Rowan County, Kentucky, believes that gay marriage should not be allowed. Her strongly held opinion is based on her religious beliefs which are ultimately based on her interpretation of about six passages from the Bible. Her beliefs are protected under the First Amendment. She is completely free to believe as she does, even though she is a member of a shrinking minority in the U.S.

  • However, when she took the action of denying marriage licenses to same-sex couples in violation of the direct order of a court, she became open to being declared in contempt of that court. She spent a few days in jail.

If the FADA bill becomes law, then county clerks everywhere in the U.S. who disapprove of marriage equality for religious reasons will be able to discriminate against same-sex couples seeking marriage licenses. The country will take a step backwards to the 1950's when people were freely discriminated against by businesses because of their skin color, race, religion, sex, and/or national origin.

The Washington Blade noted that a "person" is defined very broadly in the bill: 2 Its summary states that the bill:

"Defines 'person' as any person regardless of religious affiliation, including corporations and other entities regardless of for-profit or nonprofit status.

H.R. 2802 was referred to the House Ways and Means committee and to the House Oversight and Government Reform committee. 1

At the time that the bill was filed, the Senate bill was co-sponsored by 18 Senators -- all Republicans. The House bill was co-sponsored by 56 Republican Representatives and a single Democratic Representative: Daniel Lipinski (D-IL). 3,4 The bill lay dormant for about 13 months later, when a hearing was finally held on 2016-JUL-18. By that time, FADA was being co-sponsored by 37 Senators and 171 Representatives. 4

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Co-sponsor Senator Mike Lee (R-UT) wrote:

"When the government itself is retaliating against someone based on their religious beliefs, that is a problem and that is what we are trying to protect here. We expect that in part because the Obama administration's chief advocate, before the Supreme Court, acknowledged that it is going to be an issue, that is that you are going to have some religious institutions losing certain status, perhaps tax-exempt status, perhaps some other type of status and that's why we feel like we need this law. We need something in the United States code that protects Americans against that type of discrimination by government." 5

Webmaster's note: [bias alert]:

I have never seen a case of government retaliation or oppression of someone because of their religious beliefs. Beliefs are fully and effectively protected by the First Amendment to the U.S. Constitution. However, individuals have been prosecuted as a result of state Human Rights laws and the federal Civil Rights Act for actions that discriminated against, denigrated, or oppressed others that were ultimately based on their religious beliefs.

To be fully effective, clones of the federal FADA would have to passed in each of the 50 states, the District of Columbia, and the five territories. That is because so many acts of discrimination are not covered by federal laws.

On his Congressional web site, Senator Lee wrote about FADA:

"The First Amendment Defense Act  (S. 1598, H.R. 2802) would prevent any federal agency from denying a tax exemption, grant, contract, license, or certification to an individual, association, or business based on their belief that marriage is a union between a man and a woman. For example, the bill would prohibit the IRS from stripping a church of its tax exemption for refusing to officiate same-sex weddings.

There’s a reason [that] the right to religious liberty appears first in our nation’s Bill of Rights. The freedom to live and to act in accordance with the dictates of one’s conscience and religious convictions is integral to human flourishing, serving as the foundation upon which America has produced the most diverse, tolerant, and stable society the world has ever known. The vast majority of Americans today still hold a robust view of religious liberty, yet across the country the right of conscience is threatened by state and local governments that coerce, intimidate, and penalize individuals, associations, and businesses who believe that marriage is [restricted only to] a union between a man and a woman. The First Amendment Defense Act is necessary to ensure that this kind of government excess never occurs at the federal level." 6

Senator Lee is here referring to state and local governments' Human Rights laws and ordinances that penalize people, businesses, and non-profits for discriminating against others on the basis of their skin color, race, gender, national origin, etc. and often their sexual orientation or gender identity. He appears to be concerned that a similar Human Rights law may be passed in the future by the Federal government to protect the LGBT community from discrimination.

Rep. Labrador eloquently said:

"Religious freedom is at the heart of what it means to be an American. America set the standard for upholding freedom of belief and worship in a diverse society. No American should ever doubt these protections enshrined in the First Amendment. Our bill ensures that the federal government does not penalize Americans for following their religious beliefs or moral convictions on traditional marriage. Our bill shields against federal intrusion without taking anything away from anyone. In a shifting landscape, it’s time that Congress proactively defend this sacred right." 6

Everyone agrees that the First Amendment protects everyone's religious beliefs. Rep. Labrador appears to believe that the laws should go further and protect a person's discriminatory actions against others based on those same religious beliefs. At the same time, he seems to believe that an act of discrimination against a person does not take "anything away" from that person.

This law has been facilitated by a major shift in the most common meaning of the term "religious freedom" as used in the U.S. in recent years:

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To recap:

Under the existing First Amendment to the federal Constitution, U.S. municipal, state, and federal governments are prohibited from prosecuting people because of their beliefs about anything; only actions count. Thus the word "belief" in the bill is redundant. It may have been added in order to frighten people into thinking that, if the bill is not passed, that the federal government will start to prosecute people because of what they think. In fact, the First Amendment guarantees absolute freedom of religious thought, belief, speech, and assembly to all.

However, even though moral and religious beliefs are absolutely protected, acts based on these beliefs may not be. It is the purpose of the word "acts" in this bill to specifically protect some religiously motivated discriminatory actions related to the marriage of same-sex couples and also to sexual activity by unmarried persons. If this bill had become law by mid-2015, and replicated across the states, many county clerks who had refused to issue marriage licenses to same-sex couples would have been protected by FADA.

On 2016-JUN-26, the U.S. Supreme Court issued its ruling in the case Obergefell v. Hodges. It legalized gay marriage across the United States except for the Territory of American Samoa, where rulings of the High Court do not necessarily apply because people there are considered American Residents, not American Citizens. Many commentators in conservative media have ignored the protections guaranteed by the First Amendment and raised concern that anyone may be prosecuted for simply believing or expressing the opinion that marriage should be limited to one woman and one man.

Some commentators, including one of the sponsors, Senator Lee, have even raised the fear that individual members of the clergy and their congregations may be prosecuted for refusing to marry a same-sex couple. In fact, the First Amendment also guarantees the absolute separation between church and state -- i.e. between religious groups and government. One result of this is that, for many centuries, clergy have been free to refuse to marry couples for any reason. They have refused to solemnize marriages of couples of the "wrong" race, or interracial couples, or who were members of the "wrong" denomination, or were followers of another religion, or were judged to be immature, or were first cousins, or were of the same gender, or for any other reason. No pastor, minister or priest, to our knowledge, has ever been charged or prosecuted for refusing to marry a couple. That is very unlikely to start now, whether FADA is passed into law or not. Senator Lee is clearly fear mongering.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "H.R.2802 - First Amendment Defense Act," Congress, 2015-JUN-17, at: https://www.congress.gov/
  2. Chris Johnson, "Trump gives conditional support for ‘religious freedom’ bill," Washington Blade, 2015-DEC-23, at: http://www.washingtonblade.com/
  3. H.R. 2802 - First Amendment Defense Act," Congress, 2016-JUL-18, at: https://www.congress.gov/
  4. "JoeMyGod," "Liberty Counsel Yanks Support For FADA Because New Language Also Legalizes Anti-Straight Discrimination, JoeMyGod.com, 2016-JUL-28, at: http://www.joemygod.com/
  5. Samuel Smith, "Christian Colleges' Right to Deny Married Housing for Gay Couples Is 'on the Edge of the Indefensible,' Barry Lynn Asserts," Christian Post, 2015-JUL-07, at: http://www.christianpost.com/

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Copyright © 2016 by Ontario Consultants on Religious Tolerance.
First posted: 2016-JUL-28
Latest update: 2016-JUL-31
Author: B.A. Robinson
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