Republicans begin push for First Amendment Defense Act

Actually, Senator Mike Lee and Rep. Raul Labrador introduced their bill over a week ago, which didn’t get too much attention at the time. After today’s Supreme Court ruling on Obergefell, expect it to get a lot more attention, especially from GOP presidential hopefuls. The First Amendment Defense Act (FADA) would bar the federal government from imposing penalties on individuals, businesses, groups, and especially religious organizations for refusing to participate in same-sex weddings. Kerry Picket updates the effort today in the wake of Obergefell:


The First Amendment Defense Act seeks to protect individuals and organizations who contend that marriage is between one man and one woman from being targeted with federal taxes or removal of benefits.

For example, the bill would not allow the IRS to revoke the tax-exempt status of non-profit organizations like religious oriented schools who maintain traditional marriage views.

Labrador, an Idaho Republican, introduced the legislation with 57 co-sponsors,in the lower chamber, while Utah Republican Sen. Mike Lee introduced corresponding legislation with 18 co-sponsors in the Senate.

Lee addressed this in a Deseret News op-ed, calling for the protection of a critical “space of freedom.” He explicitly quotes Solicitor General Donald Verrilli declaring that government punishment for refusal to participate in same-sex marriage ceremonies will “certainly be an issue”:

In a brief back and forth about IRS regulations, Justice Samuel Alito asked Solicitor General Verrilli whether religious institutions — including schools — that maintain the traditional definition of marriage would lose their tax-exempt status should the court strike down state laws defining marriage as the union of a man and a woman.

The solicitor general responded: “It’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is, it is going to be an issue.”

This was a chilling moment, but not totally unexpected. For years we’ve seen warnings that, for some activists, the objective is not just legal recognition of same-sex unions, but government coercion of individuals and institutions to affirm — and even participate in — such unions, regardless of good-faith religious objections.


After citing a number of cases where refusal has brought government sanction, Lee predicts the outcome if Congress doesn’t act:

The next controversies will not be over whether gay couples should receive marriage licenses, but whether people who don’t think so may keep their business licenses; whether colleges that don’t think so will be able to keep their accreditation; whether military chaplains who don’t think so will be court-martialed; whether churches who don’t think so will be targeted for reprisal by the state; whether heterodox religious belief itself will be swept from the public square.

You don’t need to subscribe to any particular faith, or hold any particular beliefs about marriage, to see the danger of a government forcing innocent people to violate their conscience when they are just trying to make a living, serve their community or educate the next generation.

John-Henry Westen reminds readers at The Federalist of the history of speech and religious practice in Canada after SSM became legal:

In Canada, redefining marriage has led straight to the persecution of Christians. Just a decade ago, Canada made same-sex marriage legal, leading to fines for a Catholic-owned Knights of Columbus hall for refusing to host a homosexual wedding reception. Likewise, in 2005, Calgary Bishop Fred Henry was called before a Human Rights Tribunal for writing a public letter defending Catholic doctrine on marriage. The complaint was withdrawn, but the message was clear: Dissent is not tolerable under the new regime.


The process became the punishment, in other words. Westen points out that has been the case in the US, too:

In 2012, New Jersey judge Solomon A. Metzger ruled against a Christian retreat house associated with the United Methodist Church that refused to allow a same-sex civil union ceremony on its premises. Just a few months ago, Atlanta Mayor Kasim Reed sacked fire chief Kelvin Cochran, an African-American Baptist church deacon, for expressing his personal religious beliefs on marriage in a Bible study publication. …

Even the federal government is not innocent of wrongdoing here. Former U.S. Attorney General Eric Holder told state attorneys general they can ignore state laws about marriage (in violation of their oaths of office), and President Obama has decided support for natural marriage is reason to discriminate against religious organizations when handing out federal grants. His administration is also attempting to punish a Navy chaplain for expressing his faith. With the Supreme Court’s 5-4 decision today, one can only imagine what is coming next, although Canada, Britain, and elsewhere offer disturbing prospects.

Indeed they do.

However, this may not be sufficient to undo those disturbing prospects. This act won’t amend a statute, but will fall under the extremely broad Supreme Court ruling of Obergefell. Courts may or may not believe that the FADA would modify the strange limitation of religious liberty to mere “advocacy,” as Justice Anthony Kennedy decided in the majority opinion. Short of a constitutional amendment, it’s not clear that FADA would prevail, or at least not consistently. Would this court uphold FADA if a case rose to its scrutiny? I’d give 5-4 odds against it, and maybe even 6-3.


Even if it did, this would indeed prevent the IRS from imposing tax-exemption penalties for the exercise of religion when it comes to marriage ceremonies, but it wouldn’t prevent such abuses at the state level. Like the Religious Freedom Restoration Act, the individual states could pass their own versions of the bill — but look what happened in Indiana, Arizona, and Alabama when those states attempted to pass more modest versions of this concept. Congress has no power to bind states with this FADA, and most states probably won’t take the issue up, not without a major shift in public perception on religious liberty. It’s possible that Obergefell will provide the catalyst for that kind of shift, but don’t bet on it.

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