Understanding the First Amendment Defense Act
This fact sheet outlines three ways the First Amendment Defense Act would run afoul of American values:
- by privileging one religious belief over all others;
- by allowing organizations to enforce a religious test for who they will serve in programs funded entirely by taxpayer dollars, and;
- by allowing a federal employee to decide to simply walk away from her duties if she disapproves of a person who asks for the services she was hired to provide.
Recently introduced in both the Senate and the House of Representatives, the First Amendment Defense Act (FADA) would change the law to say that the federal government may not take “discriminatory action” against someone because that person “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.”1 Although its name may imply that FADA would protect some of our most closely held American values, in reality, its mandate would contravene longstanding principles our country holds dear. While the bill may be targeted primarily at gay couples in the aftermath of the Supreme Court’s decision legalizing marriage, it’s important to note that FADA’s language applies much more broadly than simply to those who have religious objections to marriage for gay couples. In fact, under its provisions, a federal employee or grantee could turn away anyone who had sexual relations outside of marriage, a worker could refuse to provide taxpayer-funded prenatal care to an unmarried woman, and a legally married gay couple or unmarried heterosexual couple would have no recourse if they were barred from the hospital room of their dying spouse or partner.
This fact sheet outlines three ways FADA would run afoul of American values: by privileging one religious belief over all others, by allowing organizations to enforce a religious test for who they will serve in programs funded entirely by taxpayer dollars, and by allowing a federal employee to decide to simply walk away from her duties if she disapproves of a person who asks for the services she was hired to provide.
1. Religious liberty is a fundamental American freedom, but the government cannot treat one belief as better than another.
The religious freedom protected by our nation’s First Amendment is one of our country’s most important values. But inherent in its promise is the guarantee that the government will not pick and choose which beliefs it likes best, or privilege one religion’s tenets over another. That’s exactly what FADA does—it singles out opposition to marriage for gay couples and gives that belief more protection than any other religious tenet—a fact which makes it not only bad policy but also likely unconstitutional.
The truth of the matter is that we already have laws which protect all religious beliefs without favoritism, and they subject federal laws alleged to interfere with any faith’s religious liberty to the same tests. Administrative decisions and federal laws are covered by the Religious Freedom Restoration Act (RFRA), which requires the federal government to justify any action which is a substantial burden on religious exercise by proving it “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”2This strict test means that any legitimate concerns put forth by FADA’s authors are already covered under federal law. Current law respects religious opposition to marriage in the same way that it respects all other religious beliefs. Instead, what FADA does is pick sides and provide unique and absolute protection to favored beliefs—and that is not what we stand for as a country that values religious freedom.
2. If a program is funded entirely by taxpayer dollars, it cannot enforce a religious test to determine who it will serve.
Our public opinion research is crystal clear on this point: Americans strongly believe that when taxpayer money is involved, no individual or family in need should ever be turned away from an essential service because of who they are. That belief matches with the rules governing the Faith-Based Initiative, first established by President George W. Bush that continue to apply today, which say that no organizations that provide social services with federal tax dollars can impose a religious test to limit the access of Americans to those taxpayer-funded services.3
FADA would turn that principle on its head by allowing an organization, medical clinic, housing shelter, or charity that offers services wholly funded by tax dollars to refuse to serve gay people, gay couples, unwed mothers, or anyone else who they believe has had sex outside of marriage. For example, religious charities apply for and receive millions of dollars in federal funding each year to provide a variety of nonreligious social services. If this bill passes, they could begin to turn away a gay person or unmarried person who came to them for housing assistance or refuse to serve a single woman in healthy start programs for pregnant women and parents of young children. Taxpayer-funded health clinics could refuse to treat an unwed mother or to recognize a gay patient’s spouse or the gay parent of a child. These actions would be contradictory to both our core values and the long-established principles that govern organizations who apply for federal grants to provide nonreligious services.
FADA would also undermine other existing protections for the clients and beneficiaries of government-subsidized services, particularly in the field of health care. Right now, hospitals that receive Medicare and Medicaid dollars (which is nearly all of them) must allow gay couples the same visitation rights as any other couple. This rule has wide popularity among the public (more than 80% support), and is even supported by the Catholic Health Association, which represents more than 600 hospitals, who said the move “reaffirms these basic human rights for each person at most critical points of their lives.”4 But if FADA passes, this rule would be undone, allowing hospitals to deny a gay person access to their spouse’s bedside in times of medical crisis—and neither the government nor the spouse would have any recourse.
3. Federal employees shouldn’t be able to unilaterally deny services to taxpaying Americans they are hired to assist.
If FADA passes, federal employees would be allowed to get up and walk away from their responsibilities if their job so much as requires them to file paperwork recognizing that a gay couple is lawfully married. The federal government, like all employers, must accommodate employees’ exercise of their religion “unless it would cause an actual cost to the agency or to other employees or an actual disruption of work, or unless it is otherwise barred by law.”5 As noted above, we already have additional protections for federal workers whose religious exercise may be substantially burdened by their employment obligations. But FADA would go much further, giving each federal employee absolute carte blanche to unilaterally deny services to a gay couple—no matter how minimal the burden would be on that worker or how compelling the government’s interest might be in providing that service or ensuring that it can carry out of its official responsibilities.
FADA also includes no requirement that the worker must notify their employer of the need for an accommodation before the fact, but rather it allows a federal employee to simply stop doing his job whenever he decides to do so. Current law gives the government the opportunity to address a conflict before it arises by coming up with a reasonable accommodation to ensure the employee’s religious beliefs are protected, but also that qualified taxpayers aren’t turned away at government offices. Instead, FADA would allow a federal employee to refuse to serve a qualified taxpayer to his or her face by expressing the worker’s disapproval of the taxpayer’s relationship or sexual behavior. It could allow an IRS employee to refuse to file the joint taxes of a married gay couple, an immigration agent to refuse to grant a spousal visa to an American citizen’s gay spouse, and a Social Security administrator to refuse to process spousal or family benefits for gay families. That’s simply a bridge way too far for most Americans: a national poll conducted by Third Way and the Human Rights Campaign showed 7 in 10 voters thought these government employees should have to follow the law and treat people equally.6
Federal workers perform crucial services, and denying those services to gay couples or anyone else of whose sexual activity the worker disapproves could put women, couples, and children at risk. These services include administering the Women, Infants, and Children (WIC) program to provide nutritional assistance to pregnant women and young children, providing housing, food, and medical care to distressed families after natural disasters like hurricanes and tornadoes, and offering early childhood education to low-income children nationwide. In all of those situations, FADA would enable any federal worker to turn away unwed mothers, children of gay couples, and many others. It would even allow federal employees to sue taxpayers for expecting them to do their job, and then require taxpayers to pay the attorney’s fees for the worker that sued them—opening up a flood of lawsuits at the taxpayers’ expense. In short, the existing balance our laws have struck to protect the religious freedom of federal employees is appropriate, and FADA goes too far.
Our country is moving quickly on our journey of increasing acceptance of gay couples, and for some, the pace of that change has been unsettling. No one should worry they will have to change their beliefs if they aren’t ready to do so. And pastors and priests should be confident that they would never be forced to perform a marriage to which they object. But religious liberty protections must be carefully crafted to balance rights against other important community needs and interests, and FADA does not even attempt to do that. It contravenes our nation’s core values and picks one religious belief to prefer over all others. That’s not what our First Amendment intended, and it’s not the way to ensure all Americans receive equal protection under our laws.
Religious liberty is one of our most fundamental American values, and that’s why our laws already provide strong protections—the government may not tell us what to believe or how to worship. But that principle also means that the government cannot pick and choose its favorite religious beliefs and offer them special protection. The First Amendment Defense Act would do just that. It would also invite federal employees and organizations who are providing services funded by taxpayer dollars to turn away unwed mothers, gay people or couples, or anyone else of whose sexual behavior they disapprove. That’s not consistent with either our laws or our nation’s values.
United States, Congress, “S. 1598 & H.R. 2802—First Amendment Defense Act,” 114th Congress, 1st Session, June 17, 2015. Accessed July 20, 2015. Available at: https://www.congress.gov/bill/114th-congress/senate-bill/1598.
42 USC Sec. 2000bb-1, 1993. Accessed July 20, 2015. Available at: http://www.law.cornell.edu/uscode/text/42/chapter-21B.
“All organizations that receive Federal financial assistance under social services programs should be prohibited from discriminating against beneficiaries or potential beneficiaries of the social services programs on the basis of religion or religious belief. Accordingly, organizations, in providing and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to actively participate in a religious practice.” United States, Executive Office of the President, George W. Bush, “Equal Protection of the Laws for Faith-Based and Community Organizations,” Executive Order 13279 of December 12, 2002, Accessed July 20, 2015. Available at: http://www.whitehouse.gov/the-press-office/2010/11/17/executive-order-fundamental-principles-and-policymaking-criteria-partner.
Kevin Sack, “In Hospital Decision, Obama Finds Safe Ground on Gay Rights,” The New York Times, April 16, 2010. Accessed July 20, 2015. Available at: http://www.nytimes.com/2010/04/17/us/politics/17hospitals.html; See also Michael D. Shear, “Gay Visitation Order Shows How Obama Brings Big Change with Small Actions,” The Washington Post, April 17, 2010. Accessed July 20, 2015. Available at: http://www.washingtonpost.com/wp-dyn/content/article/2010/04/16/AR2010041604772.html?hpid=topnews&sid=ST2010041604841.
United States, Executive Office of the President, Office of the Press Secretary, "Guidelines on Religious Exercise and Religious Expression in the Federal Workplace," August 14, 1997. Accessed July 20, 2015. Available at: http://clinton2.nara.gov/WH/New/html/19970819-3275.html; See also, U.S. Equal Employment Opportunity Commission, “EEOC Compliance Manual on Religious Discrimination,” July 22, 2008. Accessed July 20, 2015. Available at: http://www.eeoc.gov/policy/docs/religion.html.
National Poll, conducted by Anzalone Liszt Grove for Third Way and the Human Rights Campaign, June 3-9, 2013, 800 Registered Voters plus an oversample of 150 Christian Voters, Margin of Error /-3.5 and larger for subgroups. Accessed July 20, 2015. Available at: http://www.thirdway.org/report/americans-agree-marriage-for-gay-couples-doesnt-threaten-religious-liberty.