First Amendment Defense Act: Protecting an Open-Ended "Right" to Discriminate Against Same-Sex Couples

The First Amendment Defense Act purports to prohibit discrimination. In fact it fosters and promotes discrimination against same-sex couples. Moreover, the proposed law is fatally vague, and as it result it would encourage and protect a broad range of discriminatory actions by businesses, universities, hospitals, and other institutions. Furthermore, although the Act purports to defend "liberty," the Act fundamentally misunderstands the true nature of liberty -- that no person is entitled to more liberty than he or she is willing to grant to every other person.

Let us first identify what this bill would not do. It would not add an ounce of protection to the religious freedom of churches or clergy in the exercise of their religion. It would not protect clergy from having to perform same-sex marriages. Clergy already have an absolute right to refuse to officiate at weddings they disapprove of. It would not prevent churches from discriminating in their membership policies. Churches already have an absolute right to prohibit any person from worshiping with them. It would not prevent a religion from denying a sacrament to same-sex couples or anyone else. Religions already have an absolute right to do so. For example, the Mormon Church announced that it will deny the rite of baptism to the children of same-sex couples, and it is clear that the church has a constitutional right to discriminate in this manner. The Supreme Court has unequivocally ruled that the law may not interfere with the "internal governance" of a church. Hosanna-Tabor Evangelical Church and School v. EEOC (2012) (holding that the Americans with Disabilities Act could not be applied against a religious school that discriminated against a person performing a "ministerial function").

Second, this bill would not add an ounce of protection to freedom of speech. The government does not and cannot punish individuals or organizations on account of the political or religious opinions they express. The government may punish threats and incitements to violence, but hopefully the authors of this bill do not intend to shield such speech. The government may also prohibit bullying in schools and harassment at work. This bill might be intended to authorize bullying and harassment - that point is discussed below.

Third, this bill would not add an ounce of protection to freedom of belief. Freedom of belief is already absolute.

What this Act would do is to grant people an unfettered legal right to engage in conduct that discriminates against same-sex married couples, same-sex unmarried couples, and unmarried people who have sex.

Text of the Bill

The First Amendment Defense Act (H.R. 2802) was introduced into the House of Representatives by Representative Raul Labrador (R-ID). The bill tracker at Congress.gov indicates that the bill has 152 co-sponsors, and the text of the bill may be accessed here. The operative provision of the bill prohibits "discriminatory action" by the federal government -- against those who discriminate! Section 3(a) of the proposed law states:

Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.

The wording of this bill reveals that is is not a serious piece of legislation. It is a polemic, not a policy. It seeks to make a forensic point -- that the laws and court decisions permitting same-sex marriage "discriminate" against religious individuals and religious organizations. It appears to concede that discrimination is wrong, yet it disguises the fact that its proponents seek the right to discriminate against others. Several other problems with the language of the bill are analyzed below. 

Vague and Overbroad Provisions

What would this bill do? It's hard to say. Several key provisions are purposefully vague or overbroad.

"Person" Who Would be Protected by the Law

The example, the law protects "persons" from "discriminatory action" by the federal government, but it places no limits on what constitutes a person. The bill incorporates by reference the definition of a "person" from the federal Dictionary Act, which states that human beings as well as incorporated and unincorporated associations of all kinds, including both non-profit and for-profit institutions, are all "persons." In short, this law is intended to protect not only the right of churches or clergy to discriminate against same-sex couples, but everyone else under the sun as well.

"Religious Belief or Moral Conviction"

This law protects not only religiously-motivated conduct against same-sex married couples, but all conduct against them! So long as a person thinks that same-sex marriage is wrong, this law gives that person the right to discriminate against them.

"Acts" by Persons

The principal problem with the bill is that it does not define the "acts" that these persons would be entitled to engage in. Would it allow a university to deny admittance to an individual who is married to another person of the same gender? Would it allow a business to refuse service or deny employment to such an individual? Would it allow a business to deny employment benefits (such as spousal health insurance coverage) to an employee who is lawfully married to someone of the same gender? It would certainly appear so -- in fact, all of these actions are probably well within the intent of the authors of the bill.

How far would this go? What about schoolyard bullying? Or cyberbullying? Or workplace harassment? If this bill were adopted would a private employer be entitled to foster a hostile work environment for persons in same-sex marriages? It certainly seems likely. The supporters of this bill seem to believe that people should have the right to discriminate against same-sex couples -- people who do not harm them in any way -- simply because of their own religious or moral beliefs.

"Discriminatory Action" by the Federal Government

Section 3(b) of the bill attempts to define what the federal government may not do to persons who "believe or act" in opposition to same sex marriage. The government may not, for example, deny any person tax-exempt status; deny a tax deduction; deny accreditation, deny a license; or deny government funding, on account of a person's beliefs or actions in opposition to same-sex marriage. However, any specificity is destroyed by the final words of Section 3(b), which states that the federal government may not "take any other discriminatory action against such person."

What does it mean to "take discriminatory action" against a person who discriminates against persons in a same-sex marriage? Would that include enforcing non-discrimination laws, such as laws prohibiting workplace discrimination? Would it include prosecution for a hate crime? The Act does not say.

"Or that sexual relations are properly reserved to such a marriage"

Finally, what does the clause at the end of Section 3(a) mean? The bill's sponsors obviously want "persons" -- that is, every human being and every organization that exists -- to have the right to discriminate against married same-sex couples. Do they also want to legalize discrimination against unmarried same-sex couples? Against all gays and lesbians? Against unwed mothers? Against any unmarried person who has sex? Or perhaps against unmarried women who have sex! Again, the bill does not place any limits on the interpretation of this broad, general proscription on government action. To the contrary, Section 5(a) of the bill states:

This Act shall be construed in favor of a broad protection of free exercise of religious beliefs and moral convictions, to the maximum extent permitted by the terms of this Act and the Constitution.

The True Nature of "Liberty"

The people supporting this "religious liberty" bill make the same fundamental error that slaveholders made who claimed that laws that prohibited slavery from expanding into the Territories of the United States infringed upon their "liberty" to enslave others. They make the same fundamental error that the descendants of slaveholders made who claimed that they had the "liberty" to segregate and discriminate against people of a different race. People who are opposed to same-sex relationships and same-sex marriage have made the same error from the beginning -- they fail to appreciate that no-one is entitled to more "liberty" than anyone else -- that each person is entitled to as much liberty as is consistent with the same amount of liberty enjoyed by every other person. They do not understand the difference between the freedom to do as one wants with oneself and the license to control the actions of others. Until they accept the basic premise that other people have the right to live their lives without harassment and discrimination, they will continue to seek the power to oppress others.