New brief analyzes 2015 version of the so-called First Amendment Defense Act (FADA) bill in advance of new legislation

Denver, CO, March 20, 2017 — A new brief released today by the Movement Advancement Project (MAP) and Center for American Progress (CAP) analyzes the so-called First Amendment Defense Act (FADA) in anticipation of re-introduction of the bill in the 115th Congress. President Trump has already pledged to sign FADA if it reaches his desk. Since language for the 2017 FADA has not yet been introduced, this brief, Creating a License to Discriminate: First Amendment Defense Act, analyzes FADA as introduced in Congress in 2015 and outlines the sweeping harms that could befall lesbian, gay, bisexual, and transgender (LGBT) people, women, and other communities if it were enacted.

The 2015 version of FADA, HB 2802 (Labrador-R), would create a sweeping license to discriminate, permitting companies and nonprofit organizations that receive federal funding and even federal government workers to legally discriminate against their employees, customers, and clients. The 2015 version of FADA would prevent the federal government from taking action against certain individuals or organizations that act based on a religious belief or moral conviction that “marriage is a union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” In short, this bill endorses a single, narrow religious viewpoint and would provide a widespread, national license to discriminate based on that viewpoint.

“The freedom of religion is one of our nation’s most fundamental values, which is why it’s already protected in the First Amendment of the U.S. Constitution,” said Ineke Mushovic, executive director of MAP. “But that freedom doesn’t give any of us the right to impose our beliefs on others, or to discriminate. It’s shocking that in this day and age we are still trying to pass laws to make it legal to discriminate against people, fire them, or turn them away from a business simply because of who they are.”

“President Trump and his fellow opponents of equality claim to support religious freedom, but FADA is proof that instead, they want to impose a narrow view of marriage and family on others,” said Laura E. Durso, Vice President of the LGBT Research and Communications Project at the Center for American Progress. “Instead of a respecting freedom of belief, FADA’s proponents would privilege their beliefs over others and disregard the validity of faith traditions that embrace equality. They are out-of-step with the beliefs held by many in the faith community and with the American public’s views on marriage and individual liberty.”

FADA’s broad exemptions and vague wording could permit legal discrimination against Americans who do not conform to the narrow religious viewpoint about marriage. For example, a federal contractor could fire a gay employee and still keep their federal contract, a social service provider could keep a child in a foster home rather than placing them with a loving lesbian couple and maintain their federal funding, or a health clinic could deny unmarried adults reproductive health services and continue to receive federal reimbursements for care. The potential impact of this legislation is staggering: in the United States, there are 1.8 million unmarried couples raising three million children; 11.8 million parents raising children on their own; 14.1 million unmarried people living with a partner; 10 million LGBT people; 1.5 million people in same-sex marriages; and more than 128 million people who are not currently married—all of whom could face discrimination under this law.

This bill could also result in costly lawsuits at taxpayer expense. FADA would permit individuals and companies to discriminate based on specific beliefs or characteristics, yet the Constitution clearly prohibits these kinds of laws based on the Equal Protection and Due Process clauses. Not only would this open the floodgates to lawsuits challenging state laws that prohibit discrimination and asking the courts to define how broadly FADA can be applied, the law would also face considerable challenges to its constitutionality.

If a new version of FADA is introduced this year, it will also face challenges in the court of public opinion. Strong public reaction shouldn’t be surprising given that a 2016 survey by the Public Religions Research Institute (PRRI) found that 72% of Americans support laws that protect LGBT from this discrimination in employment, housing, and public accommodation. Additionally, a March 2017 PRRI poll found that two-thirds (66%) of small businesses said business owners shouldn’t be able to deny goods or services to someone who is lesbian, gay, bisexual or transgender based on the owner’s religious beliefs. Yet, similar bills have been introduced in states across the country and are making their way through legislatures in Arkansas, Illinois, Michigan, Oklahoma, Texas, Washington, and Wyoming.

Click here to read Creating a License to Discriminate: First Amendment Defense Act at https://www.lgbtmap.org/policy-brief-fada

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MAP's mission is to provide independent and rigorous research, insight and communications that help speed equality and opportunity for all. MAP works to ensure that all people have a fair chance to pursue health and happiness, earn a living, take care of the ones they love, be safe in their communities, and participate in civic life.

Center for American Progress is a think tank dedicated to improving the lives of Americans through ideas and action. CAP combines bold policy ideas with a modern communications platform to help shape the national debate. CAP is designed to provide long-term leadership and support to the progressive movement. CAP’s policy experts cover a wide range of issue areas, and often work across disciplines to tackle complex, interrelated issues such as national security, energy, and climate change. www.americanprogress.org