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The Disingenuous First Amendment Defense Act Is Indiana on Steroids

Fighting to Allow Discrimination Act in Indiana
Fighting to Allow Discrimination Act in Indiana
Ian S. Thompson,
Senior Legislative Advocate,
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July 20, 2015

What the heck are some members of Congress thinking?

This spring, Indiana faced a national backlash after the passage of a state law that gave a green light to discrimination and harm under the guise of religious liberty. Now, just a few months later, prominent members of the House of Representatives, as well as leading anti-LGBT organizations, are pushing a bill – disingenuously titled the First Amendment Defense Act – that would open the door to unprecedented taxpayer-funded discrimination against LGBT people, single mothers, and unmarried couples.

Its parade of horribles would:

  • allow federal contractors or grantees, including those that provide important social services like homeless shelters or drug treatment programs, to turn away LGBT people or anyone who has an intimate relationship outside of a marriage
    let commercial landlords violate longstanding fair housing laws by refusing housing to a single mother based on the religious belief that sexual relations are properly reserved for marriage
  • permit a university to continue to receive federal financial assistance even when it fires an unmarried teacher simply for becoming pregnant
  • permit government employees to discriminate against married same-sex couples and their families – federal employees could refuse to process tax returns, visa applications, or Social Security checks for all married same-sex couples
  • allow businesses to discriminate by refusing to let gay or lesbian employees care for their sick spouse, in violation of family medical leave laws

The bill defines a person to include for-profit corporations, and it would allow anyone to assert “an actual or threatened violation of this Act as a claim or defense in a judicial or administrative proceeding.” FADA would allow any individual, group, or business, including recipients of federal funds, to file a lawsuit and potentially receive damages from taxpayer money. All they have to do is believe they may somehow be required by the federal government to do something that implicitly condones marriage for same-sex couples or sexual relationships outside of marriage

In addition to all of this, the bill would eviscerate the historic nondiscrimination executive order that President Obama signed last summer to prohibit businesses that contract with the federal government from engaging in discrimination on the basis of sexual orientation and gender identity.

Despite the claims of some marriage equality opponents, the First Amendment already protects the rights of churches and clergy to decide which unions to solemnize within their faith traditions. Since the founding of our country, no church has been forced to marry any couple in violation of its religious doctrine and that will not change now that same-sex couples can marry. And, the ACLU would be the first to rise in defense of these religious institutions if government ever tried to do that.

While this bill does nothing to protect individuals’ rights under the First Amendment, it would provide a sweeping right to discriminate in federal law. Leadership in the House of Representatives would be well served to heed the lesson of Indiana and keep this bill far away from the House floor.