Earlier this month, the New York Times published an editorial regarding the First Amendment Defense Act (“FADA,” H.R. 2802 / S. 1598), alleging “G.O.P. anti-gay bigotry threatens [the] First Amendment.” However, FADA is neither bigoted nor a threat to the First Amendment.
In fact, the editorial contains a number of misrepresentations and outright lies about the original bill that was introduced and fails to address the new language Senator Mike Lee (R-UT) and Congressman Raul Labrador (R-ID) are pushing. Senator Lee’s letter to the Editor briefly responded to the inflammatory Times editorial.
In his letter, Senator Lee highlights that we “must come to these debates with tolerance and modesty.” Senator Lee also clarifies that the reason he is pushing for passage of FADA is that he is “concerned about what the solicitor general told the Supreme Court: that after Obergefell, the decision that legalized same-sex marriage, faith-based institutions providing valuable public services could lose their nonprofit status because of their now-heterodox beliefs about marriage. Without new protections provided by FADA, hospitals could lose Medicaid funding, and K-12 institutions could have their nonprofit status revoked.” Essentially, the impetus behind the First Amendment Defense Act is a fear of federal government persecution of believers, not outrage over gay rights.
In fact, Senator Lee clarifies that FADA would not “negate federal anti-discrimination measures protecting gays and lesbians. To the contrary, the bill does not alter any civil rights protections, state or federal.” The bill simply says the federal government may not penalize, through tax policy or the grant and contracting processes, those who disagree with the Supreme Court’s Obergefell ruling. The bill does not attempt to overturn the ruling, and, in fact, explicitly prevents a denial of federal benefits authorized under the Court’s new marriage definition. FADA is not an endorsement of discrimination—logically, a bill that explicitly prevents discrimination does not thereby also provide a “legal justification to discriminate.”
The Times editorial presumes that same-sex couples must not only be allowed to be married, which the Court has ruled, but also that the government must force everyone to affirm that view. This view distorts a live and let live approach on the question of marriage, and makes clear the liberal left does not simply want to secure rights for people who identify as homosexual, but wants to punish those who disagree with the Supreme Court’s inclusion of same-sex couples in its new definition of marriage. Senators and Representatives should support and co-sponsor FADA to ensure people who believe in a natural view of marriage are not pushed into the periphery of society.
Mandi Ancalle is a constitutional lawyer serving as General Counsel for Government Affairs at Family Research Council.