The legislation, known as the First Amendment Defense Act, has the stated purpose of prohibiting the federal government from taking adverse action against individuals — defined broadly in the bill to include for-profit businesses — if they oppose same-sex marriage.
On Thursday, House Speaker John Boehner (R-Ohio) was non-committal on whether he would allow the First Amendment Defense Act to come up for a floor vote after the Supreme Court decision in favor of same-sex marriage.
“The Supreme Court decision on marriage raises a lot of questions,” Boehner said. “A number of members have concerns about issues that it raises and how they might be addressed, but no decision has been made on how best to address these.”
The office of Senate Majority Leader Mitch McConnell (R-Ky.) didn’t immediately to a request to comment on whether the Senate would be willing to consider the legislation.
The legislation was introduced last month by Rep. Raul Labrador (R-Idaho) in the House and Sen. Mike Lee (R-Utah) in the Senate. Both participated in a news conference Thursday on Capitol Hill to make the case for the legislation in the aftermath of the Supreme Court ruling.
“Individual Americans, of course, may differ in their views about the definition of marriage; they may differ in their views about how this decision should have been reached,” Lee is quoted as saying in the Washington Post at the news conference. “But I do think Americans are overwhelmingly united in their belief that religious freedom needs to be protected and that neither a person nor any group of people ought to be subject to government retaliation against based on their religious beliefs…That’s why we’re pushing this bill.”
The legislation, which specifically addresses (but isn’t limited to) revocation of tax-exempt status by the federal government, isn’t as broad as other controversial religious freedom measures seen this year in state legislatures, such as those in Indiana and Arkansas. Still, LGBT advocates say the federal bill would nonetheless adversely impact LGBT people for a host of reasons.
For starters, even though President Obama signed an executive order last year barring anti-LGBT workplace discrimination among federal contractors, the bill would allow a company to continue to contract with the federal government if it engages in discriminatory practices and cites opposition to same-sex marriage as the reason.
The bill would also have the effect of gutting Obama’s memorandum requiring hospitals receiving Medicare and Medicaid to grant visitation rights for same-sex couples. According to the Human Rights Campaign, the measure would permit a federal employee to refuse to process tax returns, visa applications or Social Security if a same-sex couple’s paperwork appears on his or her desk.
Since its introduction in both chambers of Congress last month, the legislation has steadily risen in support in the Republican-majority Congress. In the House, the measure has 130 co-sponsors, including one Democrat: Rep. Dan Lipinski (D-Ill.). Just this week, the bill gained 23 co-sponsors. Among them is anti-LGBT Rep. Louie Gohmert (R-Texas). In the Senate, the bill has 36 co-sponsors, all Republicans. Sens. John McCan (R-Ariz.), Rand Paul (R-Ky.) and Tim Scott (R-S.C.) signed on this week.
The number of co-sponsors doesn’t signify majority support in either chamber of Congress, but at a time when Republicans enjoy their greatest majorities ever since the Truman administration, passage is certainly possible if the measures come to the floor. It’s possible for supporters of the legislation, which could be cast a compromise measure in lieu of U.S. constitutional amendment against the Supreme Court’s marriage ruling, to introduce the bill as amendment to another legislative vehicle.
The White House didn’t respond to a request to comment on whether Obama opposes the bill and would veto it if it reached his desk. It’s customary for the administration to withhold comment on legislation until a vote is about to take place.
For a short time this week, legislative action on the First Amendment Defense Act seemed imminent. The Human Rights Campaign issued a statement saying the House Committee on Government Affairs would hold a vote next week on sending the legislation to the floor.
“Once again, House Republicans are pursuing an extreme agenda that is designed to harm LGBT families under the guise of religious freedom. The right to believe is fundamental. The right to use taxpayer dollars to discriminate is not,” said HRC Legal Director Sarah Warbelow. “Religious freedom is valued by all Americans, but this bill has nothing to do with the First Amendment.”
But each of the committees with jurisdiction over the legislation told the Blade they had no plans to move forward with the bill. In the House, the bill was referred to two committees: the House Committee on Governmental Affairs and the House Committee on Ways & Means. In the Senate, the bill was referred to the Senate Committee on Homeland Security and Governmental Affairs.
M.J. Henshaw, a spokesperson for the House Committee on Governmental Affairs, said “we will not be marking it up next week.” The panel is “still reviewing” the legislation and has no plans to act on it before August recess, she said.
Asked whether there were initial plans to move forward with the bill that were later cancelled, Henshaw said the committee hasn’t even announced which bills it will take up next week. The committee is set to consider seven or so bills, she said, but not the First Amendment Defense Act.
Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), said he had heard House Republicans planned to vote on the bill in committee, but they’ve “have now cancelled the markup.”
Neither the office of Lee or Labrador responded to the Washington Blade’s request to comment on whether the lawmakers expect a vote on the First Amendment Defense Act either before August recess or at a later time.
Gregory Angelo, executive director of Log Cabin Republicans, said even within the Republican caucus, the bill is inspiring division among House lawmakers.
“There is definitely no unanimity among the House GOP caucus, and if the bill is taken up unamended it would cause division among House Republicans,” Angelo said. “There is language currently in the bill that is reasonable, and other language that is a cause for definite concern. We have met with and will continue to meet with House Leadership to about FADA.”
If the legislation does see movement in Congress, LGBT advocates are likely to sound the alarm to stop the measure in its tracks and may seek help from business allies who helped derail similar measures in Indiana and Arkansas.
Matt McTighe, campaign manager for Freedom for All Americans, said in a statement the bill “does nothing to advance religious freedom, but it does attack the economic well-being of LGBT Americans all across this country.
“Every American should have the freedom to live their lives without fear of discrimination,” McTighe said. “At a time when a supermajority of Americans want to move forward with comprehensive protections for their LGBT friends and loved ones, it’s disheartening to see that some lawmakers are still aggressively pushing legislation that singles out hardworking Americans for harm.”