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

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