Five Things You Should Know About FADA

This post was co-authored by Heron Greenesmith, Senior Policy Analyst at the Movement Advancement Project.

The freedom of religion is one of our nation’s fundamental values. That’s why it’s already protected in the First Amendment of the U.S. Constitution. Yet that freedom doesn’t give anyone the right to harm, discriminate against, or impose their beliefs on others.

The so-called First Amendment Defense Act (FADA), first introduced in Congress in 2015, permits people, companies, nonprofit organizations, and even federal government workers to discriminate against their employees, customers, and clients—if that discrimination is based on the view that marriage should only be between a man and a woman and that sexual relations should be reserved for such marriages. In short, with FADA, the federal government endorses a single religious viewpoint held by a minority of Americans and then provides a national license to discriminate based on that viewpoint.

Why should we care about failed legislation from 2015? Because Congress has indicated it will reintroduce FADA and President Trump has already pledged to sign it when it reaches his desk. Although we have yet to see the 2017 FADA, the failed 2015 legislation provides alarming insight into the legislation’s intent and possible range of consequences. The Movement Advancement Project (MAP) in partnership with the Center for American Progress analyzed the 2015 FADA in more detail in a newly released brief, but here’s the short version of what you should know:

1. It uses your taxpayer dollars to endorse discrimination

FADA would permit people and organizations who receive funding from, or have contracts with, the federal government to discriminate in hiring, firing and the provision of services—all without losing their federal contract or grant, or their non-profit tax-exempt status. FADA’s reach is sweeping; it would protect discrimination by federal employees like Social Security clerks, non-profit organizations like adoption agencies and homeless shelters, corporations like hospitals and defense contractors, and more.

2. It allows discrimination against single parents, unmarried pregnant women, LGBT people, unmarried couples and more.

Consider FADA’s permission to discriminate based on the view that sex should only ever occur within marriages between a man and a woman. Government service providers like homeless shelters and health clinics could deny services to anyone who is pregnant or has a child and is not currently married; anyone who is, or is perceived to be, engaged in a sexual relationship and is not currently married; same-sex couples; LGBT people; and the children and family of any such individuals.

That’s a lot of people: there are 1.8 million unmarried couples raising 3 million children; 11.8 million parents raising children on their own; 14.1 million unmarried people living with a partner; 10 million LGBT people; 1.5 million people in same-sex marriages; and more than 128 million people who are not currently married who could face discrimination if they are or are perceived to be engaged in sexual relations.

And given that people of color are more likely to have children outside of marriage, and more likely to identify as LGBT, FADA could also be used to discriminate against people of color under the guise of beliefs about sex and marriage.

3. FADA opens a can of worms and will lead to a host of unintended consequences.

  • A federal government employee could refuse to process the Social Security claims of a single mother or married same-sex couple.
  • Housing agencies could refuse housing vouchers and loans to any single parents or unmarried couples.
  • Hospitals that receive federal funding would be protected by FADA if they decided not to provide medical services to a single woman who was miscarrying or refused to refill a prescription for a gay man who was HIV positive.
  • Taxpayer-funded adoption agencies could choose to leave a child in a government group home rather than allow her to be adopted by a qualified single parent, a lesbian couple, or a couple where one parent was previously divorced.

4. Vague language makes FADA even more dangerous.

While the 2015 FADA in theory only applies to federal employees and organizations receiving federal contracts and grants, there is a vague clause in FADA that could be interpreted to mean that federal agencies are prohibited from enforcing existing nondiscrimination protections against any person or entity. This has potentially staggering consequences, including:

  • Employers could discriminate against LGBT people, unmarried people, single parents, or unmarried pregnant women and be shielded from enforcement actions by agencies like the Equal Employment Opportunity Commission.
  • Pharmacists could refuse to provide birth control to women who didn’t first show their marriage license.
  • Landlords could refuse to rent to unmarried couples, single parents, or LGBT people and the Department of Housing and Urban Development might not be able to take enforcement action.

5. It’s unconstitutional

The 2015 FADA violates the Constitution’s Equal Protection Clause by permitting broad categories of people to be treated differently than others. It violates the Due Process Clause by allowing this discrimination without providing those who are harmed with notice or the ability to defend themselves. And finally, because FADA favors one specific view of marriage and sex, FADA violates the Establishment Clause of the First Amendment, which prevents the government from favoring some religious views above others.

Learn more about FADA in this brief released today.

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