House Committee Holds Hearing on Anti-LGBT FADA Legislation
On Tuesday, July 12, the US House of Representatives held a special hearing regarding the proposed First Amendment Defense Act (FADA), which was introduced into the legislative chamber in June by Rep. Raul Labrador (R., ID). The hearing — coming exactly one month after the massacre of 49 people at a gay nightclub in Orlando, Florida — exposed deep divisions among members of Congress concerning LGBT issues.
The legislation, formally designated as H.R. 2802, would prohibit the “federal government from taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.” In other words, for example, business owners would be allowed to refuse to provide services at a same-sex wedding or reception if doing so would violate their personal religious or moral beliefs. In another example, a landlord might be allowed to deny housing to a transgender person.
FADA has 117 co-sponsors in addition to Rep. Labrador — all but one of them Republican. (The sole Democrat co-sponsor is Daniel Lipinski from Illinois.) The Republican sponsors and supporters argue that the legislation is needed to protect the religious beliefs of business owners and other individuals, shielding them against federal prosecution for LGBT discrimination.
Democrat opponents counter that FADA, if passed, would effectively legalize discrimination against LGBT people. They especially fear that the bill would weaken two existing federal protections for LGBT individuals — an executive order banning federal contractors from discriminating on the basis of sexual orientation or gender identity, and a law requiring hospitals receiving Medicare and Medicaid to allow patients to have visits from same-sex partners. Consequently, Democrats argue, a federal social services contractor might reject LGBT people from homeless shelters or substance abuse programs. The bill’s opponents further point out that federal employees might be allowed to refuse to process tax returns, visa applications, and Social Security checks of LGBT people. Yet another concern is that FADA might even lead to discrimination against unmarried heterosexual couples.
One of the individuals testifying against FADA at the hearing of the House Committee on Oversight and Government Reform was former Congressman Barney Frank (D., MA). Frank responded to Republican concerns that existing laws might allow tax exemptions to be eliminated for religious organizations found to discriminate against LGBT people. He compared people who have such concerns to those “who think Elvis is alive,” pointing out that tax exemptions are not the same thing as federal grants, which require much more federal scrutiny and compliance with anti-discrimination regulations.
Another individual speaking against FADA was Jim Obergefell, one of the plaintiffs in the landmark 2015 Supreme Court case of Obergefell v. Hodges, in which the high court ruled that the right to same-sex marriage is guaranteed by the Fourteenth Amendment to the Constitution. Referring to the Orlando tragedy, Obergefell scolded the committee, “This hearing is deeply hurtful to a still grieving LGBT and allied community.”
Among the people testifying in favor of FADA was Kevin Cochran, the former fire chief of Atlanta. Cochran was fired in 2015 after he wrote a book describing homosexuality as “vile, vulgar, and inappropriate.” Although Cochran’s case suggested potential problems with laws protecting the LGBT community, the fact is that FADA would not have saved Cochran’s job, because he was a city government employee, to which the proposed new law does not apply.
Also advocating passage of FADA was attorney Kristen Waggoner, of the Alliance Defending Freedom. She told the committee,
“There’s no question that there is government hostility toward people who believe that marriage is between one man and one woman. What we’re seeing at the state, and at the federal level, is that those who have [this] politically unpopular view are being silenced, banished, and punished.”
It remains to be seen whether FADA can be defeated, or whether it may pass during the remaining term of President Barack Obama or during the term of the president to be elected this November. Even if it does pass through Congress, however, it could theoretically be found unconstitutional. The proposed federal law is similar to a Mississippi state law that a federal judge ruled unconstitutional in late June.
On July 11 — the day before the House hearing — the platform committee of the Republican National Convention approved an amendment in favor of FADA, along with various other amendments generally viewed as opposed to LGBT interests. Republican presidential candidate Donald Trump had suggested in December 2015 that he would be inclined to sign such legislation should it reach his desk as president.
