The national debate between LGBT rights and anti-LGBT discrimination in the name of “religious freedom” was on full display Tuesday during a congressional hearing on the First Amendment Defense Act.
The House Committee on Oversight & Government Reform held the three-and-a-half hour hearing on the federal legislation on the one-month anniversary of the mass shooting at a gay nightclub in Orlando, Fla., that left 49 people dead and 53 wounded.
Rep. Jason Chaffetz (R-Utah), chair of the committee, said during his opening statement he convened the hearing because free exercise of religion “has been and still is the fundamental part of the foundation of our nation.”
“Religion is part of what so many Americans believe in, that is their choice to believe in,” Chaffetz said. “It does not mean I want to hurt or restrict somebody else of their rights, their pursuit of happiness.”
Introduced by Rep. Raul Labrador (R-Idaho) in the U.S. House and Sen. Mike Lee (R-Utah) in the U.S. Senate, the First Amendment Defense Act would block federal government action against individuals and businesses that oppose same-sex marriage on religious grounds, but critics contend it would legalize anti-LGBT discrimination in the name of “religious freedom.”
Opponents of the First Amendment Defense Act say it would allow businesses to withhold benefits from LGBT employees, allow companies to deny time off to an employee to care for a same-sex spouse and permit housing discrimination against same-sex couples.
The legislation has undergone changes since it was first introduced. Among other things, it now would prevent federal government action against individuals and businesses that oppose same-sex marriage and sexual relations outside of marriage as well as action against individuals who support gay nuptials.
Also now excluded from the religious protections the bill affords are federal employees acting within the scope of government, for-profit federal contractors acting within the scope of that contract as well as hospitals and nursing homes for the purposes of visitation and medical treatment.
Both Labrador and Lee testified in favor of the bill before the committee, but didn’t stay to take any questions from committee members.
Lee said the First Amendment Defense Act is necessary as a result of uncertainty felt by opponents of same-sex marriage in the aftermath of the U.S. Supreme Court decision last year in favor of marriage equality nationwide.
“What an individual or an organization believes about marriage is not and never should be any of the government’s business,” Lee said. “It certainly should never be part of the government’s eligibility rubric in distributing licenses, awarding accreditations or issuing grants, and the First Amendment Defense Act simply ensures that this will always remain true in America.”
The legislation has 171 co-sponsors in the House and 37 co-sponsors in the Senate, but only one, Rep. Dan Lipinski (D-Ill.), is a Democrat.
Rep. Elijah Cummings (D-Md.), top Democrat on the committee, said during his opening statement the hearing marks a “terribly sad day” for LGBT people and the nation because of the one-month anniversary of the Orlando shooting.
“As I sit here now, it is difficult to imagine a more inappropriate day to hold this hearing,” Cummings said. “Even if you truly believe that being gay is morally wrong, or that people should be allowed to discriminate against gay people, why in the world would you choose today of all days to hold a hearing on this discriminatory legislation? To say this hearing is ill-timed is the understatement of the year.”
Cummings asked during his opening statement for Labrador and Lee to address what is the difference between discriminating against someone for being gay and being black.
“With everything going on in the country right now — these horrific shootings of gay people, black people, police officers — what we should be doing is coming together as a nation, not tearing each other apart, which is exactly what this bill does,” Cummings said.
Responding to Cummings, Labrador insisted in his testimony “our bill does not take away anyone’s rights” or enable discrimination against LGBT people.
“We have gone through painstaking time and effort to make sure that this takes nothing away from any individual, but in a measured way, we protect the right enshrined in the Constitution,” Labrador said.
Representing conservative concerns that inspired the legislation during the hearing was former Atlanta fire chief Kelvin Cochran, who was suspended without pay, then terminated last year after he distributed to subordinates a book he wrote that expressed a biblical condemnation of homosexuality.
“Only a few paragraphs of the 162-page book address teachings, biblical teachings, on marriage and sexuality, verses taken directly from the Holy Scripture,” Cochran said. “Yet the City of Atlanta’s officials, including Mayor Reed made it clear that it was those beliefs that resulted in my suspension, the investigation and my termination.”
Recalling the racial discrimination he faced at the start of his firefighting career, Cochran said he “made a promise that if I were ever in charge no one would have to go through the horrors of discrimination that I endured because I was different from the majority.”
Cochran said that’s why he created a doctrine for Atlanta fire rescue personnel that he said protected every member of the department and the community it serves.
Counterbalancing Cochran among the minority witnesses was Jim Obergefell, the lead plaintiff in the lawsuit that won same-sex marriage before the Supreme Court. During the hearing, Obergefell talked about his story as he cared for his dying spouse, John Arthur, but was unable to obtain state recognition of his marriage.
“As important that it is that same-sex couples like John and I have the ability to obtain a civil marriage license in any state of the country, it is also critically important that this constitutional right is not undermined by proposals like this legislation that would subject loving couples like me and John and other LGBTQ people to discrimination,” Obergefell said.
Former Rep. Barney Frank, who’s gay and in a same-sex marriage, offered testimony against the legislation that was characteristically colorful, saying the measure is “very personal” because it singles out a particular religious tenet for protection under current law.
“This is a legislative enactment that essentially the fact that I live in a loving, committed marriage with another man is somehow a threat to other people’s freedom, and that Congress has to single that out to act against it,” Frank said.
Among other things, Frank condemned the legislation because it would allow a non-profit housing organization to collect taxpayer money, including from LGBT people, and subsequently deny that housing to them on the basis of opposition to same-sex marriage.
Frank also said the legislation would disadvantage children being raised by gay couples by allowing agencies receiving federal grants to deny benefits to same-sex households and, even though the bill excludes federal workers, would allow state workers administering federal programs to discriminate against LGBT people.
Under questioning, Frank said he doesn’t think Cochran should have been fired and admitted he’d support a bill prohibiting the termination of an employee from expressing opposition to same-sex marriage, so long as that opinion isn’t relevant to the position, but doesn’t think the First Amendment Defense Act accomplishes that.
Katherine Franke, a law professor and director of Columbia University’s Center for Gender & Sexuality Law, testified against the legislation on the basis that it “creates an absolute immunity for opponents of same-sex marriage.”
“Even more worrisome than the fact that FADA is creating a solution to a problem that doesn’t exist, FADA does not defend, but rather violates the First Amendment,” Franke said. “It does so by unsettling the delicate balance our Constitution and our courts have struck between protecting the free exercise of religion and preventing the establishment of religion by the federal government.”
Under any reading of the bill, Franke said the First Amendment Defense Act wouldn’t provide relief to Cochran because it would “never address” the facts of his termination as Atlanta fire chief.
Kristen Waggoner, senior counsel and senior vice president of U.S. legal advocacy for the anti-LGBT Alliance Defending Freedom, testified in favor of the bill on the basis the protections it affords are narrowly crafted.
“We’ve already today heard tall tales that Americans will lose rights under FADA if it is adopted,” Waggoner said. “Let us be clear that is not true. FADA is very limited in scope and it does not take away civil rights protections. Any suggestion to the contrary is not supported by the bill’s text.”
Matthew Franck, a political science professor from the New Jersey-based Witherspoon Institute, said the bill is needed because the Supreme Court’s marriage decision “cast a shadow” on “religious freedom.”
“The reasonable belief that the true meaning of marriage is its traditional meaning, the conjugal union of a man and a woman, can be expected to persist among millions of our fellow citizens,” Franck said. “In part, this is because that view is supported by their religious faith, though moral convictions on this subject can be strongly held for non-religious reasons, too.”
Franck compared the First Amendment Defense Act to the Hyde Amendment, which passed in 1976 to bar federal government payments on abortion after the U.S. Supreme Court affirmed a woman’s right to the procedure in the 1973 Roe v. Wade decision.
Republicans on the committee expressed support for the bill as a means to protect “religious freedom” while Democrats said it would undermine LGBT rights. Generally, the committee members sought validation of their views by questioning witnesses in line with their perspective without seeking comment from the other side.
Del. Eleanor Holmes Norton (D-D.C.) said language in the First Amendment Defense Act defining D.C. as part of the federal government would effectively “make the capital of the nation a discrimination zone” for LGBT people.
“On behalf of the people that I represent in the District of Columbia of every sexual orientation, I’m deeply offended by this bill because it is not only an attack an our own LGBTQ community’s rights we have gone very far in protecting, but it is an attack on the sovereignty of the District of Columbia itself,” Norton said.
Rep. Jim Jordan (R-Ohio), a committee member and founder of the House Freedom Caucus, was among the Republicans expressing indignation over Cochran’s firing, saying “people like Cochran are heroes.”
“That is exactly why we have a First Amendment,” Jordan said. “You do not have to check your beliefs, right? That’s what this country is about when you talk about the First Amendment. You have to check your beliefs at the door? Are you kidding me? That’s why this bill is so important.”
The next steps for the legislation weren’t immediately known. Rep. Mark Meadows (R-N.C.), who filled in as chair of the committee after Chaffetz departed, obtained commitments from Franke and Waggoner to come to an agreement on a change to the bill that would ensure it doesn’t impinge on federal civil rights law.
House Committee on Oversight & Government Reform didn’t respond to the Washington Blade on when, if at all, the committee would seek to move the legislation for a vote on the House floor.