Congress has mostly stayed out of the “religious freedom” fight as states pass legislation allowing anti-LGBT discrimination for religious reasons, but that may soon change.
A U.S. House committee is planning a hearing on the First Amendment Defense Act, a “religious freedom” bill with the purported purpose of preventing federal government action against individuals and businesses that oppose same-sex marriage for religious reasons. Critics say it essentially carves out a legal exemption for anti-LGBT discrimination.
The legislation was introduced by Rep. Raul Labrador (R-Idaho) in the U.S. House and Sen. Mike Lee (R-Utah) in the U.S. Senate.
M.J. Henshaw, a spokesperson for the House Oversight & Government Reform Committee, said the panel is “working towards a hearing” on the legislation, although no date has been scheduled.
A follow-up email on whether the hearing was likely before the end of this month wasn’t returned. It remains to be seen if a committee vote or consideration on the House floor will follow the hearing.
Chaired by Rep. Jason Chaffetz (R-Utah), the House Oversight & Government Reform Committee is packed with conservative Republicans, including Rep. Steve Russell (R-Okla.), who recently attached to a major defense spending bill an amendment that would undermine President Obama’s executive order prohibiting anti-LGBT workplace discrimination among federal contractors.
The anti-LGBT National Organization for Marriage has been pushing for a hearing on the First Amendment Defense Act in a campaign it calls “Fax for FADA.” The effort encourages supporters to sign a petition in support of the legislation, which triggers a fax sent to House Republican leadership and the House Oversight & Government Reform Committee. According to the National Organization for Marriage’s website, the petition as of Wednesday had 3,870 signatures.
Brian Brown, president of the National Organization for Marriage, wrote in a blog post the “Fax for FADA” effort “is making a big impact.”
“Word is that the First Amendment Defense Act (FADA) will be scheduled for a hearing very soon,” Brown writes. “Our faxes to the House Republican leadership and members of the House Oversight and Government Reform committee are having an impact!”
Upon its introduction last year in an attempt to counter the expected ruling from the U.S. Supreme Court in favor of same-sex marriage nationwide, the First Amendment Defense Act is seen as an attempt to make a carve out into that decision without entirely overturning it.
Among other things, LGBT advocates have said the legislation as introduced would 1) permit a federal employee to refuse to process tax returns, visa applications or Social Security checks for same-sex couples; 2) allow recipients of federal grants and contracts, including those for social services programs like homeless shelters and substance abuse treatment programs, to turn away LGBT people; and 3) permit anyone who believes they have been somehow required by the federal government to approve of married same-sex couples to file a lawsuit and potentially receive damages from taxpayer funds.
Roddy Flynn, executive director of the LGBT Equality Caucus, said the legislation is akin to controversial state anti-LGBT laws recently enacted in North Carolina and Mississippi, calling the planned hearing the latest “in a string of attacks on LGBT people.”
“First North Carolina and Mississippi, then the NDAA amendment, now a hearing on FADA, some lawmakers are determined to permit discrimination at all costs,” Flynn said. “These measures are not about religious liberty or the First Amendment, they are attempts to roll back hard fought protections that provide stability and security to LGBT people. With the incredible backlash against North Carolina’s law, it is shocking some lawmakers are doubling down on this much more radical bill. FADA goes far beyond North Carolina’s anti-LGBT law, giving a license to discriminate for anyone who doesn’t like LGBT people.”
On the Senate side, Lee has presented a new version of the First Amendment Defense Act that limits that carve-out for opponents of same-sex marriage, although the update hasn’t officially been filed.
The new version, which is displayed on Lee’s website, spells out protections from government action won’t apply to publicly traded for-profit entities; federal employees acting within the scope of their employment; federal for-profit contractors acting within the scope of their contracts; and hospitals and nursing homes with respect to visitation, decision-making on health care and certain treatments.
Conn Carroll, a Lee spokesperson, said Tuesday the version of the First Amendment Defense Act on Lee’s website is the “up to date” version of the legislation.
“This finalized version of the First Amendment Defense Act, which we’ve been working with religious liberty experts on for months, makes crystal clear that we are only seeking to prevent federal government discrimination against people and institutions that define marriage as a union between one man and one woman,” Carroll said.
On the House side, Labrador’s office didn’t respond to the Washington Blade’s request to comment on the article or to confirm if the updated Senate version is the new House version as well.
Ian Thompson, legislative representative for the American Civil Liberties Union, said the legislation remains discriminatory against LGBT people regardless of the change.
“It is disappointing that some Republicans in the House have failed to learn the lessons that Governors Pence, McCrory and Bryant now know all too well,” Thompson said. “Embarking down this discriminatory road is going to meet with the swift backlash that it deserves.”
Thompson said one example of discrimination the bill would still allow is permitting certain federal contractors or grantees, including those that provide social services like homeless shelters or drug treatment programs, to turn away LGBT people, same-sex couples or anyone who has a sexual relationship outside of a marriage, such as a single mother.
“Whether in its original or 2.0 versions, FADA is about permitting taxpayer-funded discrimination,” Thompson said. “This legislation is beneath who we are as a nation. I hope that Speaker Ryan and Chairman Chaffetz will reconsider the wisdom of putting such a bright spotlight onto such an ugly, mean-spirited bill.”