The So-Called First Amendment Defense Act: RFRA on Steroids

Demonstrators on the steps of the Supreme Court.  Photo: Jon Richards
Demonstrators on the steps of the Supreme Court in April 2015. Photo: Jon Richards
Yesterday, Senator Greg Kirk introduced the First Amendment Defense Act of Georgia [FADA]. The bill would prohibit state and local government from taking action against persons or businesses for acts arising out of a belief that marriage should be between only a man and a woman, or that sexual relations are reserved for marriage. Senator Kirk proffered his bill would foster tolerance and make Georgia an example for the nation. Far from that, Senator Kirk is emboldening anti-gay attitudes, inviting expensive litigation at taxpayers’ expense, and begging for the economic calamity of a national boycott. Indeed, FADA, if enacted, would make Georgia a national pariah.

First and foremost, FADA is unconstitutional under (ironically) the First Amendment. The protections laid out in FADA only run in one direction, favoring religious objectors to same-sex marriage and extramarital sex. Those, however, who unabashedly support marriage equality, cohabitation, or non-marital sexual conduct, are afforded no protections under FADA. FADA would therefore insulate only one viewpoint favored by the government. There is no state legislative proposal more threatening to free speech in the country right now than this.

Second, FADA is constitutionally defective because it points to same-sex couples, and LGBT people more generally, as legitimate targets of discrimination. The bare desire to harm LGBT persons is impermissible under the Equal Protection Clause of the Fourteenth Amendment. It is hard to imagine any court would tolerate this legislation in 2016.

The consequences of FADA would be devastating, if upheld. It would eviscerate every local nondiscrimination protection in public accommodations, housing, and employment that protects individuals on the basis of sexual orientation and, perhaps, even with respect to sex and familial status. SB284 permits a same-sex couple to be turned away from a bakery, a florist, or caterer for wedding services. A single mother could be fired from her job with impunity. A gay person could face eviction from their home with no relief. This point alone justifies labeling the legislation “RFRA on steroids.” The fear of discrimination against LGBT persons, women, and others, that stokes opposition to the proposed Religious Freedom Restoration Act is– unlike RFRA—a feature of FADA and not a bug.

Publicly funded programs run by religious organizations could use taxpayer money to discriminate. Indeed, the over 100 schools that harm children through anti-LGBT policies, but yet are subsidized through government programs, would have permanent refuge to operate in this state. Adoption agencies— even those taking state and federal funds— could limit adoptions to opposite-sex couples. Scarier yet, the state could privatize adoption services completely, creating a monopoly, and then grant that monopoly gatekeeper status to keep children out of the loving, stable homes of same-sex couples.

Public officials have purportedly no refuge under FADA. In other words, the Kim Davis characters of Georgia cannot deny marriage licenses because of a religious objection. However, there is no definition of public officer and no definition of what constitutes a public duty that they must enforce. For example, can a probate judge refuse to marry same-sex couples but marry opposite-sex couples? That is a discretionary power of a judge that is currently governed by administrative rule. If the discretionary power to marry is not an official duty, officials are powerless to reprimand a discriminatory judge. Even if FADA provides no shield to a probate clerk from blocking marriage licenses, can a clerk post a sign disapproving of same-sex marriage? One clerk in Colorado did that— under FADA the clerk could presumably go without reprimand.

There are many potentially dangerous consequences arising from FADA. What about schools? Can a public school teacher condemn homosexuality or same-sex marriage without fear of any repercussion under FADA? Are courts powerless to take action in family law custody disputes where one parent harms the child’s best interest by openly attacking another parent’s sexual orientation or non-martial relationships? What happens if public employees create hostile work environments for LGBT persons or unmarried individuals?

Do not be fooled. FADA is not an accommodation law for religious objectors. It is, however, a blunt tool to browbeat and demean LGBT Georgians, unconventional families, and unmarried individuals deemed morally corrupt

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Jean
Jean

Our country decided a long time ago that sincerely held religious belief is not a good enough reason to allow businesses to discriminate. This is easy folks – if you can’t legally discriminate against mixed-race couples because of your religious beliefs, then you shouldn’t be able to discriminate against same-sex couples because of your religious beliefs.

Andrew C. Pope
Andrew C. Pope

*slow clap*

Brilliantly written, Anthony. You laid out the argument against FADA in a way I was waaaay to angry to do, yesterday.

Saltycracker
Saltycracker

Anything with race, religion or sex we can get emotional charged about to stay away from issues like transportation, education, governance, safety, taxation and matters facing the average Georgian is the order of the day. Sad we elect those that prefer or respond to drama, soap operas and gerrymandering.

Calypso
Calypso

Thanks for writing this, Anthony.

Eric
Eric

I think you made some good points Anthony but I think you fail to look at the issue from both sides. You are advocating that people should be either forced to violate their religious beliefs or be terminated from their job. All of this in the name for LGBT rights? I’m just surprised that a self proclaimed civil rights defender such as yourself thinks that forcing a LGBT couple to drive one county over or to find a different bakery is a more horrific violations of civil rights than to force an individual to violate their religious beliefs or be… Read more »

Calypso
Calypso

Eric, there are no Christian civil rights and there are no LGBT civil rights. There are merely civil rights.

Andrew C. Pope
Andrew C. Pope

Eric, recognizing LGBT people as, you know, people is not a violation of anyone’s religious beliefs. Look, as a Jew, I’ll admit that I haven’t read the New Testament in a while. Can you direct me to the verse where Jesus said: “Lo! Feed the hungry, but thou shalt not giveth bread to the gays, for they are an abomination”? Was that before or after the verse where he tells Peter: “provide shelter to the destitute and clothing to the naked, but do not provideth either to the lesbians for they art gross”? Christian’s civil rights are not being “challenged”… Read more »

Jean
Jean

Eric – you said “You are advocating that people should be either forced to violate their religious beliefs or be terminated from their job” I’ve heard about court clerks and bakery owners. Neither one is being asked to violate their religious beliefs — they are only being asked to do their jobs and provide a product. Issuing a marriage certificate or providing a wedding cake does not constitute endorsement of the marriage. Are you saying that if a bakery owner has a deeply-held religious belief that they shouldn’t serve white people, they should be allowed to discriminate and not bake… Read more »

Benevolus
Benevolus

The example of the baker just kind of devalues the essence of the problem. Should bankers be able to deny loans? Or real estate agents be allowed to exclude gay customers? I think the reason the baker example is so compelling is because it is obvious that the baker would be dealing with a gay couple. Which suggests the question- would the baker make a cake for a gay person if they didn’t know they were gay? I think they would. The alternative would be that they ask every customer whether they were gay or not before agreeing to serve… Read more »

Jon Richards
Jon Richards

Keep in mind that for Christian providers of personal services (bakers, photographers, florists), the concern is providing the service for a same-sex wedding. For some within the Christian faith, a wedding is a religious sacrament that they believe should only be provided to opposite-sex couples. As long as what’s being provided isn’t for a same sex marriage, most are happy to have gay people as customers.

Real estate agents, bankers, etc. are not likely to be involved in providing a product or service directly to a wedding ceremony, so I don’t think your hypothetical applies.

Jean
Jean

I take it you would support bakers/photographers/florists being able to deny mixed-race or non-Christian couples as well, right?

Jon Richards
Jon Richards

I’d rather wait until someone makes such a claim and then judge the issue. TBH, that’s why a religious freedom restoration act isn’t such a bad thing. That being said, I can’t think of a religion with writings that say mixed race or non-Christian couples shouldn’t marry.

Andrew C. Pope
Andrew C. Pope

Jon, I think Jean is referencing the fact that so-called “Christians” used their faith as a justification for anti-miscegenation laws prior to Loving v. Virginia

John Vestal
John Vestal

True. And would it really be up to the government to be the final arbiter of what is and is not a “religion” and, extending that idea, what is or is not a “deeply held religious belief” (or “moral conviction”, for that matter.) One’s interpretation of their particular religious doctrine can vary greatly…otherwise there would only be one sect of each religion. Truthfully, someone could come up with an interpretation of multiple narratives from multiple pieces of ancient dogma to rationalize denying service to gays, Jews, Blacks, Catholics, fat people, ugly people, redheads… and, well…. And, yes, the original trial… Read more »

Andrew C. Pope
Andrew C. Pope

But Jon, FADA is not limited to providing services for same-sex weddings. As written, FADA would allow a loan officer at a bank to deny the mortgage application of a gay couple. It would allow an private adoption agency to deny placement with a gay couple. It would allow a homeless shelter to deny housing to a gay individual. There are a whole host of examples I can cook up that don’t involve butchers, bakers, or candlestick makers. Coincidentally, FADA would also allow private businesses and charities to deny services for people engaging in pre-martial sex, homosexual sex, or extra-marital… Read more »

Jon Richards
Jon Richards

Andrew, I don’t see where you are coming from here. What does the bill do? It defines a number of discriminatory actions, including withdrawing tax exempt status or refusing to give loans or grants, that government is prohibited from applying to a person who has a religious belief or moral conviction that marriage should be between one man and one woman. Italicized terms have meanings as defined in the bill. That’s it. So I’m trying to figure out how this law permits the parade of horribles you list above. What I’m seeing are arguments from opponents to the bill that… Read more »

Andrew C. Pope
Andrew C. Pope

Here’s a parade of horrible hypotheticals that are all protected by FADA… 1) The State contracts with a private company to operate Stone Mountain Park. The contractor can deny entry to gays and lesbians and the State is not authorized to terminate the contract. 2a) A school teacher can openly deride an LGBT student and call him a godless sodomite destined for the fires of Hell. The State can’t take away her teaching license or decline to renew it. 2b) A school teacher can openly deride a child’s homosexual parents in front of the child and her classmates and can… Read more »

Teri
Teri

If the wedding takes place somewhere secular like a beach, or in a garden, and the wedding is officiated by someone who is not ordained in their faith, is it still a sacrament? I honestly don’t believe that a secular wedding is anything like a sacramental wedding. I was married by a priest in a Catholic church; that covered the sacrament aspect of my marriage. The fact that in Louisiana, priests are authorized to marry people, and the fact that I had a marriage license issued by the state, covered the civil aspect of my marriage. I don’t buy into… Read more »

Dave Bearse
Dave Bearse

All this in the name for LGBT rights?

Well, yeah. Georgia is an at-will employment state where LGBT people may be terminated from employment for simply being who they are, let alone being married, but heaven forbid a business serving the public having to bake a cake.

Saltycracker
Saltycracker

All this PC, where does this leave the legislator’s Wild Hog Supper ? 🙂

Eric
Eric

Romans 1:26-27 Hebrews 13:4 Let me first start off by saying true Christians do not hate or condemn gays. We do believe that homosexuality is a sin, but we are all sinners. However we should not embrace sin. The matter of gay marriage is directly addressed in the bible in the verses listed above. So as you can see it is a true violation of the christian faith. That is why I believe that Christians should be allowed to not affiliate with gay weddings if they choose to do so. It is no question that people should not be able… Read more »

Benevolus
Benevolus

Well I will say two things:

First of all, the proposed law could be worded much more narrowly to only include wedding related services and we could have that conversation, but that’s not the way it is written.

Secondly, if a baker doesn’t want to possibly be tainted with a gay wedding then they should just not do wedding cakes at all. That way they are not discriminating against anyone. Gay birthday cakes, OK. Gay anniversary cakes, OK. But no wedding cakes.

John Konop
John Konop

Eric,

If I follow your logic that people who got divorced would fall into the category of people you think in the name of religion should be denied service as well? Basically a pregnant women out of wedlock with kids should be denied food, water……at a public place because it violates what a person thinks is how thier religion should be applied?

Andrew C. Pope
Andrew C. Pope

Eric, the Union for Reform Judaism and the American branch of Conservative Judaism both recognize the sanctity of same-sex unions. Reconstructionists allow individual rabbis decide whether or not to solemnify a same-sex union. Orthodox Judaism is still pretty firmly in the “no gay marriage” camp, but there appears to be some movement in certain congregations to recognize the sanctity of same-sex marriages. So, no, the position Jews is not “tell someone they’re a sinner so they can repent” it is “love people for who God created them to be.” By denying people services because they are gay you are, by… Read more »

Jean
Jean

Jon, were you asking about Biblical references for condemning mixed-race marriages or marriages between people of the faith and not of the faith? Google is pretty good at listing them out if you don’t know what they are. (They are definitely there and there are churches/people who do follow those beliefs.) Besides, it doesn’t matter what the Bible actually says – it only matters what someone’s personal beliefs ARE …. most Christians pick and choose anyway. Here’s what a JUDGE in the set of Loving cases said: “Almighty God created the races white, black, yellow, malay and red, and he… Read more »

Jean
Jean

(The reply was for Jon and Eric both)

Ellynn
Ellynn

Which version of the bible are you quoting? NLV, King James, NABRE, NRSVA, The Vulgate? Would this bill allow a Christian following a NLV bible refuse to serve a Christian following a NABRE bible?

Teri
Teri

The book of Tobit has plenty to say about marriage – I wonder if it counts?

Ellynn
Ellynn

My Great uncle, a Jesuit priest and scholar who researched deuterocanonical books would have loved your reply.