Just one month after a gunman shot and killed 49 people at a gay nightclub in Orlando, Florida. House Republicans on Tuesday plan to hear a bill that would enable widespread discrimination against LGBT people. The legislation, “First Amendment Defense Act” (FADA) is the idea that discrimination should be excused when it is justified by religion.
FADA grants special rights to individuals 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.” and it extends special treatment to individuals with anti-LGBT so called “religious beliefs”.
The core provision of FADA “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 objection to marriage equality or a faith-based belief that sexual relations must be reserved to a marriage between people of the opposite sex. Subsequent provisions define the term “discriminatory action” to include a broad range of sanctions against religious objectors who themselves engage in discrimination. The government cannot deny tax subsidies to religious objectors who discriminate against LGBT people, or deny them a grant or benefit, or, under a catch-all provision, “otherwise discriminate against such person.”
FADA would also roll back critical protections for LGBTQ people and their families, a majority of which were implemented under the Obama Administration. Here are just some of the protections that FADA could weaken:
- Executive Order 11,246 prohibits employment discrimination on the basis of sexual orientation and gender identity by federal contractors. However, under FADA, the federal government would be required to continue to contract with a business with a record of discriminatory employment practices against married gays and lesbians if that employer cited their belief that same-sex marriage was wrong as the reason for the discrimination.
- Currently, hospitals receiving Medicare and Medicaid must allow a patient to have any visitor they request—including a same-sex spouse. Under FADA, a hospital could state that allowing such visits would sanction same-sex marriage and would be a violation of their religious liberty.
- The Department of Housing and Urban Development has also recently issued guidance that shelters receiving HUD grants must not discriminate against same-sex married couples. An organization could cite FADA and provide their religious conviction against same-sex marriage as a reason to put a same-sex couple back on the street.
- Despite protections in the Fair Housing Act and strong administrative guidance from HUD, commercial landlords could be empowered to violate fair housing laws by refusing housing to a single mother or same-sex couple based on religious belief that sexual relations are reserved to different-sex married couples.
- The Violence Against Women Act (VAWA) provides explicit protections from discrimination against LGBTQ beneficiaries. However, under FADA, an emergency shelter receiving VAWA funds to provide services for survivors of intimate partner violence could turn away someone in a same-sex marriage because of their personal religious belief.
- The 1993 Family and Medical Leave Act grants a statutory right to 12 weeks of leave for personal illness or caregiving – including caring for a spouse. The Department of Labor has issued clear administrative guidance that these rights extend to same-sex married couples. However, under FADA, closely held businesses or not-for-profit organizations would be allowed to discriminate by refusing to let an employee care for their sick same-sex spouse despite these clear federal protections.
Although President Obama would surely veto the bill, both Ted Cruz and Donald Trump have promised to sign it.