S.1598 & H.R.2802 – Providing a Federal License to Discriminate

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Bills singling out lesbian, gay, bisexual and transgender (LGBT) people for discrimination captivated headlines across the country this year. Lawmakers and governors in many states, including Georgia, South Dakota, South Carolina, Tennessee and Missouri did the right thing and rejected these unnecessary bills. North Carolina’s reputation, however, has taken a decisive hit ever since lawmakers rushed HB 2 into law – costing the state countless jobs and lost investment.

Despite the backlash, some in Congress are pushing a deceptively titled “First Amendment Defense Act,” or FADA.

The remarkably tone deaf bill does nothing to advance existing First Amendment protections, but does give individuals, organizations and businesses the right to discriminate against LGBT people.

At the end of the day, Americans believe everyone needs to follow the law. A 2015 ABC News/Washington Post poll found that 74 percent of Americans say treating everyone equally under the law takes precedence over one’s religious beliefs. And a strong majority of Americans, 71 percent, support protecting LGBT people from discrimination in employment, housing and public accommodations. And two-thirds of small business owners (66 percent) don’t believe businesses should be able to deny LGBT people goods or services based on religious beliefs.

What the Federal License to Discriminate Would Allow

It would mean that:

  • Much of President Obama’s amended Executive Order 11246, which protects LGBT employees of federal contractors from job discrimination, would be left unenforceable. The Williams Institute estimates the executive order protects an additional 16.5 million employees.
  • A government contractor could fire an employee with a strong performance record after executives learn that employee recently married his partner of the same sex.
  • A school that receives federal funding could fire a teacher it suspects of having a premarital sexual relationship with her longtime boyfriend.
  •  An employer could refuse to grant FMLA leave for an employee to care for her same-sex spouse, even though the two are legally married.
  • A federal government employee could refuse to process a claim, benefit or service to which a married same-sex couple is entitled under federal law, and to which the United States Supreme Court has held the couple is fully entitled under the Constitution.

What Other Conservatives Are Saying:

Cato Institute Senior Fellow Walter Olson:

“The bill would also protect trad-values folk even when they are not religiously motivated, while denying protection to their opposite numbers even when they are religiously motivated. Despite its own avowals, this isn’t actually a bill framed to protect religious exercise.

University of Minnesota Law School Distinguished University Teaching Professor and Professor of Civil Rights & Civil Liberties Law Dale Carpenter:

“Speakers are constitutionally protected from government action that penalizes (or even simply denies benefits or subsidies) based on viewpoint. But even speakers whose viewpoints on a subject are beleaguered politically and culturally, as traditional marriage supporters say their ideas are, aren’t entitled to government action that grants them special rights, exemptions, and protections unavailable to others with opposing viewpoints on the very same subject. The First Amendment Defense Act has the special property of assailing the thing it purports to defend.”

Cato Institute Senior Fellow Walter Olson:

“There is worse to come. One can sort of imagine—even while bracing for a high volume of litigation—a law that forbade any government disparate treatment based on recipients’ beliefs. But FADA also protects “acts” based on opposition to same-sex marriage.”

Suggested Talking Points:

  • The freedom of religion is one of our nation’s most fundamental values. That’s why it’s already protected in the U.S. Constitution.
  • But this bill does nothing to advance the freedom of religion.
  • As we’ve seen in many states already this year, bills like this single out LGBT people and others – including single mothers – for discrimination.
  • We should treat others the way we ourselves would wish to be treated.
  • Unfortunately, FADA does exactly the opposite and rejects the Golden Rule.
  • In fact, two-thirds of small business owners reject these types of discriminatory bills, according to a July 2015 Small Business Majority poll.
  • Gay people are our friends, neighbors, family and co-workers. They work hard, serve in the military and pay taxes. When it comes to being able to earn a living, having a place to live, or being served by a business or a government office, they should be treated like anyone else and not be discriminated against.
  • Updating our nondiscrimination laws to protect LGBT Americans is something a supermajority of Americans support – nearly 70 percent of Americans would back such a bill, including 65 percent of Republicans.
  • It’s time to focus on actions that strengthen communities across the nation, not hurt our LGBT friends, neighbors and loved ones.

For more information about FADA, contact Dan Rafter (dan@freedomforallamericans.org) or Owen Loftus (oloftus@freedomforallamericans.org).

Last Updated May 4, 2016 • PDF VERSION

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