I co-authored the following article with my colleague, Andrew T. Walker. It was originally published at ERLC.com
Today, at 10 a.m. EDT, the House Committee on Oversight and Government Reform will assemble for a hearing on an important bill designed to protect religious liberty in the aftermath of Obergefell, the Supreme Court’s activist ruling that nationalized same-sex marriage. The bill, known as the “First Amendment Defense Act” (FADA), is an important piece of legislation intended to protect the rights of citizens to maintain their religious convictions on marriage and sexuality.
The right to freely exercise one’s religious beliefs is a bedrock American principle safeguarded by the First Amendment. Yet in the wake of the Supreme Court’s ruling in Obergefell v Hodges, many Americans who hold traditional beliefs about marriage and sexuality are deeply concerned they may be subject to future government sanctions or reprisals on that basis. From being fired for expressing Christian beliefs about sexuality to the potential loss of state funds because of a school’s religious identity, the First Amendment Defense Act is intended to assuage these concerns by prohibiting the federal government from taking discriminatory action against a person on the basis of such beliefs.
Despite claims to the contrary, the bill is narrow in scope. It is solely focused on protecting rights of conscience. Specifically, its provisions apply to persons maintaining the belief “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.” And the bill guarantees such protections to any person, “regardless of religious affiliation.” In effect, the bill would prevent discrimination against persons who object to same-sex marriage for religious, moral, or personal reasons. This isn’t about special pleading for Christians. This is about protecting the rights of any citizen who believes that marriage is only between one man and one woman.
The true value of the proposed “First Amendment Defense Act” is that it enumerates specific protections under which persons are guaranteed the freedom to act or believe without fear of scrutiny, interference, or punitive action from the federal government.
Among other things, FADA would protect persons, corporations, and nonprofits from discriminatory action including:
- alterations to federal tax treatment; the causation of any tax, penalty, or payment to be assessed against, or the denial, delay, or revocation of certain tax exemptions of any such person;
- disallowal of deductions of any charitable contribution made to or by such person;
- withholding, reduction, exclusion, termination, or any denials of any federal grant, contract, subcontract, cooperative agreement, loan, license, certification, accreditation, employment, or similar position or status from or to such person;
- withholding, reduction, exclusion, termination, or any denials of any benefit under a federal benefit program.
Additionally, the bill would grant individuals and other entities the legal standing to defend themselves against charges of discrimination based on these beliefs, or actions motivated by them.
Let us be very clear. This bill doesn’t take away anything from anyone. For reasons we’ve written elsewhere, FADA doesn’t “discriminate” as critics allege. FADA merely ensures that the government treats citizens equally. It requires that government not take sides in today’s debates about marriage. That’s it.
Critics are mounting challenges to the First Amendment Defense Act, accusing it of gross caricatures designed to quash the bill.
But what does the bill really do? The First Amendment Defense Act is a bill that protects the 2008 beliefs of Barack Obama and Hillary Clinton, who both believed marriage was reserved for one man and one woman until their “evolution” on the question of what constitutes a marriage.
That raises an important question. What motivates a political movement to disavow not only America’s legacy of religious liberty, but to engage in an almost-laughable episode of political amnesia? The answer can’t be found in a commitment to fairness. No, the answer can be found in the evolving norms of progressivism that are untethered to reason or the Constitution. Only a liberalism too sure of itself, or so arrogant, is willing to overlook its own inconsistencies.
Exactly how liberal groups like Think Progress can praise Islamic colleges like Zaytuna College on one hand, a college whose views encompass traditional beliefs about marriage and sexuality, while the same progressive site can also criticize policies like the First Amendment Defense Act, which prevent the government from taking any adverse action against religious institutions like Zaytuna College for holding to particular beliefs about marriage and sexuality is perplexing at best.
The hypocrisy of sites like Think Progress on issues of religious identity and religious liberty testify to the larger inconsistencies surrounding liberalism’s inability to allow any debate or difference on issues like marriage and sexual activity. So which is it? Should universities like Zaytuna be praised for their religious distinctives that contribute to the rich diversity that makes America’s pursuit of pluralism possible? Or should they be harassed, penalized, and punished for their beliefs about marriage? One cannot praise an institution for its religious identity while at the same time calling into question the basic liberties and policies that forestall its distinctives from being undermined or eliminated by unconstitutional fiat.
These are questions that the First Amendment Defense Act attempts to answer. But only time will tell whether government will take protective action to ensure that citizens with a goodwill belief about marriage aren’t made second-class citizens.