The First Amendment Defense Act has been hanging around for a while but it's time to give it another look since it will almost surely make it on to next year's congressional agenda. It’s written to be used broadly by people to discriminate against women and LGBTQ people based on both their sexual orientation and sexual conduct. Jay Michaelson writes:
If it becomes law, FADA will be the worst thing to happen to women and LGBT people in a generation.
Like state “religious freedom restoration acts,” FADA’s basic principle is that it’s not discrimination when businesses discriminate against LGBT people if they have a religious reason for doing so. The most famous situations have to do with marriage: wedding cake bakers who say that if they bake a cake, they’re violating their religion; Kim Davis, the government clerk who said that signing a secular marriage certificate was a religious act that she could not perform.
But those stories are a red herring. The more important cases are ones like hospitals refusing to treat LGBT people (or their children), pharmacies refusing to fill birth control prescriptions, businesses refusing to offer health benefits to a same-sex partner, and state-funded adoption agencies refusing to place kids with gay families. Underneath the rhetorical BS, that’s what FADA is all about.
The law provides protections to any business, agency, or individual so that it can be used by entities ranging from Hobby Lobby to hospitals to infamous marriage denier Kim Davis.
Old-age homes and hospices that turn away gay people – yes, this has actually happened – are covered. Hospitals that refuse a same-sex partner visitation rights – covered. National hotel chains that refuse to rent rooms to gay couples (or unmarried straight ones) – covered.
But wait, there's more. The statute also protects any action taken "in accordance with a religious belief or moral conviction 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."
So since it covers sexual conduct in general (not just same-sex marriage), it opens up all sorts of carve outs around contraception and treatment of STDs, for instance. This would allow pharmacies to decline distribution of the "morning after pill" and companies to fire single women for getting pregnant.
Worse yet, the statute makes all these things and more defensible by virtue of one's "moral conviction," not just one’s "religious beliefs." That opens it up to be used as a license to discriminate by virtually anyone for any reason that they merely feel "conviction" about.
The LGBTQ community spent 17 years trying to undo the damage caused by the Defense of Marriage Act. If this bill were to become law, my guess is it would take decades to defeat and do an enormous amount of damage in the meantime.
Donald Trump pledged to sign the law during the campaign.