More Information About the First Amendment Defense Act

U.S. Sen. Mike Lee (R-Utah) has proposed the First Amendment Defense Act (FADA) — a name that would make George Orwell’s Big Brother proud. HB 372 is modeled after the FADA and does nothing to defend the First Amendment. Rather, it grants religious citizens special privileges, including the right to discriminate against other Americans for exercising their constitutionally protected rights.

The act is a masterpiece of “doublethink.” First, it prohibits the government from taking “any discriminatory action against” against a person or business who is discriminating against LGBT people for exercising their constitutionally protected right to marry. The bill labels as “discriminatory” governmental action intended to end discrimination. This is no more acceptable or justifiable than if Congress acted to defend hotels that turn away interracial couples because the Christian owners of those hotels believe that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. ... [because] he did not intend for the races to mix,” as was claimed as a defense of anti-miscegenation laws in the 1960s.

Second, the First Amendment Defense Act purports to deal with “the issue of same-sex marriage,” but also would permit discrimination based on a religious belief that “sexual relations are properly reserved to such a marriage.” This would, for instance, allow for discrimination against unmarried heterosexual couples.

Finally, our First Amendment needs no “defense” from Congress. Rather, we need to defend the First Amendment from members of Congress who seek to legislate away its guarantees. In fact, the First Amendment is specifically meant to limit Congress: “Congress shall make no law respecting an establishment of religion...” Codifying religious favoritism is precisely what the First Amendment prohibits.

Some homophobic religious beliefs are not simply bigoted or repugnant, but call for violence, e.g. the extermination of gay people (See Leviticus 20:13 “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.”) The First Amendment Defense Act would itself be an “abomination” of our First Amendment, by elevating certain religious beliefs over every other belief, even equal protection laws.

Religious belief does not need to be reasonable, logical or even comport with reality, yet this bill would give such belief the force of law. It would give a single religion’s dogma the legal sanction of all Americans, of “We the People.”

The last time Congress acted to overturn a Supreme Court decision with legislation meant to reinforce religious freedom, it passed the Religious Freedom Restoration Act (RFRA). This is the bill that the far religious wing of the country is using to force their dogma on everyone else, as the Green family, owners of Hobby Lobby, were able to do in challenging Obamacare’s contraceptive mandate. Time has shown what a poor idea RFRA is.

Currently, theocrats are attempting to use the Religious Freedom Restoration Act to justify discrimination against LGBT citizens. Tony Perkins, of the Family Research Council was explicit when he wrote:

"In at least 10 states, conservatives are fighting back with a string of Religious Freedom Restoration Acts (RFRAs). Although each state’s may vary, the bottom line is that they give men and women of all faiths a powerful tool to stop the government from walking all over their beliefs on issues like marriage and sexuality. If Washington State had a RFRA, for example, Baronnelle Stutzman would actually have legal grounds for beating back the government’s attack on her store."

Stutzman, owner of Arlene’s Flowers, refused to provide flowers for a gay wedding because of her religious beliefs. So far, courts are not buying the argument that the Religious Freedom Restoration Act allows discrimination in the name of god. So far. Enter the First Amendment Defense Act.

The religious right wants the First Amendment Defense Act passed to defend religion-based discrimination in court. Their strategy of turning the Religious Freedom Restoration Act from a shield (meant to protect rights) into a sword (meant to impose religious belief on others) backfired when the Hobby Lobby decision exposed that strategy. The backlash against that decision was powerful and swift. So apparently theocratic lawmakers figure, “why slog through the courts trying to alter Religious Freedom Restoration Act, when a new sanction for discrimination can be legislated?”

We should never allow our public officials to privilege bigotry, especially religiously motivated bigotry.

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