First Amendment Defense Act Still Provides a License to Discriminate

Kim Davis is returning to work and still refusing to issue marriage licenses to same-sex couples, but her unwillingness to follow the rule of law has national implications. In Congress, some are pushing forward with plans for a “First Amendment Defense Act,” or FADA. The deceptively titled bill codifies discrimination and is remarkably tone-deaf to the public backlash following last spring’s RFRA battle in Indiana and following Davis’ own refusal to marry same-sex couples.

The broadly written bill, sponsored by Sen. Mike Lee (R-UT) and Rep. Raul Labrador (R-ID), does not advance existing First Amendment protections; but does give individuals, organizations and even businesses the right to discriminate against LGBT people simply because they exercise their constitutional right to marry.

Americans believe everyone needs to follow the law. A new ABC News/Washington Post poll found that 74 percent of Americans say treating everyone equally under the law takes precedence over one’s religious beliefs1. Sixty-five percent of Americans2, for example, believe that Kim Davis should do her job or resign according to a recent Huffington Post/YouGov poll. An even stronger majority, nearly 70 percent3, support protecting LGBT people from discrimination in employment, housing and public accommodations. And two-thirds of small business owners (66 percent) don’t believe businesses should be able to deny LGBT people goods or services based on religious beliefs4.

FADA stands in sharp contrast to public opinion. According to the most recent version of the bill:

• Any business that is not a publicly traded for-profit entity can discriminate against same-sex couples and their families. The implications are enormous, exposing millions of LGBT people to potential discrimination. Less than one percent of the 27 million businesses in the United States are publicly traded5. The rest may discriminate at will based on their owners’ and employees’ personal objections to same-sex marriage. • Only those who oppose same-sex marriage would receive special legal protections. It does not give these same protections to those who support same-sex marriage6, potentially and ironically violating both the First Amendment and the Equal Protection Clause of the U.S. Constitution.

1 ABC News/Washington Post, September 2015 http://www.washingtonpost.com/page/2010-2019/WashingtonPost/2015/09/15/National- Politics/Polling/release_410.xml 2 Huffington Post/YouGov, September, 2015 https://today.yougov.com/news/2015/09/09/majority-public-back-jailing-kim-davis/ 3 Public Religion Research Institute survey, June 2015, http://publicreligion.org/research/2015/06/survey-majority-favor-same-sex- marriage-two-thirds-believe-supreme-court-will-rule-to-legalize 4 Small Business Majority, July 2015, http://www.smallbusinessmajority.org/small-business-research/non-discrimination/ 5 Forbes, “4 Things You Don't Know About Private Companies,” May 2013, http://www.forbes.com/sites/sageworks/2013/05/26/4-things- you-dont-know-about-private-companies/ 6 Newsweek, “Gay Marriage and Religious Rights: Say Nada to FADA”, September 2015, http://www.newsweek.com/gay-marriage-and- religious-rights-say-nada-fada-370860

Last Updated 9/25/15

• The revised bill leaves a loophole for not-for-profit federal contractors, allowing them to discriminate against or deny critical services to same-sex couples and their families. • Homeless shelters, foodbanks, employment and drug counselors, and other non-profit service providers could turn away gay and transgender people because of their objections to same-sex marriages at a time when such families are most in need of support.

What Other Conservatives Are Saying:

Cato Institute Senior Fellow Walter Olson:

“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.”

University of Minnesota Law School Distinguished University Teaching Professor and Professor of Civil Rights & Civil Liberties Law Dale Carpenter:

“Speakers are constitutionally protected from government action that penalizes (or even simply denies benefits or subsidies) based on viewpoint. But even speakers whose viewpoints on a subject are beleaguered politically and culturally, as traditional marriage supporters say their ideas are, aren’t entitled to government action that grants them special rights, exemptions, and protections unavailable to others with opposing viewpoints on the very same subject. The First Amendment Defense Act has the special property of assailing the thing it purports to defend.”

Suggested Talking Points:

• Americans believe everyone should be treated fairly and equally under the law. • This legislation, however, would allow and encourage widespread discrimination against gay and lesbian people and same-sex couples. When the need to treat all people equally under the law conflicts with someone’s beliefs, 70 percent of Americans say that it’s more important to ensure that everyone is treated equally under the law. • Ironically, this bill does nothing to protect the First Amendment. In fact, since it offers special rights only to those who oppose marriage equality while actively harming same-sex couples and their families, it actually undermines the rule of law and the principles of the First Amendment. • This is broad, unnecessary legislation that no one wants, except those who seek to promote discrimination against gay and transgender people. In fact, two-thirds of small business owners reject these types of discriminatory bills, according to a July 2015 Small Business Majority poll. • Gay people are our friends, neighbors, family and co-workers. They work hard, serve in the military and pay taxes. When it comes to being able to earn a living, having a place to live, or being served by a business or a government office, they should be treated like anyone else and not be discriminated against. • Updating our nondiscrimination laws to protect LGBT Americans is something a supermajority of Americans support – nearly 70 percent of Americans would back such protections, including 65 percent of Republicans. • It’s time to focus on actions that strengthen communities across the nation, not hurt our LGBT friends, neighbors and loved ones. Last Updated 9/25/15

For more information about FADA, contact Dan Rafter ([email protected]) or Owen Loftus ([email protected].)

Last Updated 9/25/15