Chelsea Langston

The First Amendment Defense Act has the laudable aim of enabling people and organizations to be true to their belief in traditional marriage even as the U.S. Supreme Court has declared that civic marriage extends to same-sex couples. But this is not the best, nor even an effective, way to protect religious freedom.

In mid-July, 2015, a bill was introduced in Congress called the First Amendment Defense Act (FADA) [S.1598, H.2802]. This bill is a direct response to the Supreme Court’s ruling in Obergefell at the end of June making same-sex marriage legal in every state. The bill seeks to protect individuals, non-profits, and businesses against adverse action by government due to their religious or moral belief and action that sexual relations should be limited to an opposite-sex marriage.

Despite good intentions to advance religious freedom, FADA is both too broad and too narrow. FADA is too broad in that it gives to any organization or person with a religious or moral commitment to opposite-sex marriage an absolute right not to be excluded from accreditation, licensing, grants, and a wide range of other government benefits. FADA is too narrow because it addresses religious freedom concerns only within the context of same-sex marriage. A better approach is to advance religious freedom in the context more generally of sexual orientation nondiscrimination rules while also protecting gay and transgender people from baseless discrimination.

David Brooks, in a recent op-ed in the New York Times, called on individuals and institutions of faith to stop spending all their public relations capital on engaging in culture wars focused only on human sexuality. His op-ed raises a key question: why does he and the public in general believe that people and organizations of faith are more concerned with protecting their own sexual ethics than with serving the needy? To replace this misunderstanding with a positive appreciation of faith-based organizations and individuals, it is essential to engage in policymaking in a way that visibly supports the rights of others and not only one’s own freedoms.

The First Amendment Defense Act aims to address the legitimate religious freedom concerns raised by Obergefell for individuals and institutions with religious objections to same-sex marriage. It appears, though, that its authors ignored an important lesson of the Religious Freedom Restoration Act (RFRA). This law, which passed Congress nearly unanimously with the broad support of religious leaders, the ACLU, and President Clinton, features a careful crafted balancing test to weigh religious freedom claims against other vital interests. In short, as important as religious freedom is, it cannot always win the day, not because it should be subordinate but because other constitutional values are also vital.

The current FADA bill does not appear to be the product of a sufficiently careful balancing inquiry (revised versions are being prepared). For instance, it places moral convictions about marriage on a par with religious beliefs, although it is the latter that the Constitution clearly protects, and an effort to broaden protection beyond that constitutional value may instead just undermine the whole protective effort. It does not adequately deal with the challenge of protecting the convictions both of people arriving for a federally funded service and of religious organizations that may be providing that service. It implies that a federal employee’s religious convictions about marriage should trump the rights of a same-sex couple to some federal service, even if that employee is the only person available to provide the service.

Additionally, although FADA is widely seen as the “religious freedom” bill, it only deals with the issue of a traditional marriage conviction. Religious freedom, of course, encompasses the exercise of an individual’s or organization’s faith in every facet of their lives, not limited to opinions about marriage. FADA inadvertently makes it seem that religious freedom is preoccupied exclusively with marriage and sexuality when in truth religious freedom encompasses a far broader spectrum of human life and for many, all of it.

Since the Court’s same-sex marriage decision, legal scholars have raised some very real and valid questions about the freedoms of individuals and religious organizations to continue to operate according to their precepts about marriage and sexuality. Key questions include:

• Notwithstanding a recent statement by the IRS Commissioner, is the tax-exempt status of religious institutions with a conservative view of marriage at risk over time?

• Will faith-based nonprofit organizations continue to be able to select employees who align with their religious beliefs and practices?

• Will a private faith-based college be allowed to continue requiring its students and faculty to abide by conduct standards that reflect the institution’s religious precepts on sexuality?

These are legitimate, complex, and nuanced questions. They go beyond the normal questions getting media coverage and instead require careful consideration of the legitimate rights not only of the religious institutions themselves but also of their employees, students, and clients. The governmental response to these questions cannot be blind to the justice implications for LGBT individuals. People of faith will come to different conclusions about the proper role of government in responding to and balancing these various harms and freedoms, but must acknowledge they exist. FADA, unfortunately, gives the impression that it is only the freedoms of people and organizations committed to traditional marriage that require legislative attention in the wake of the Supreme Court’s decision. But that decision did not, in fact, resolve the discrimination concerns of LGBT people.

So what is a proper response to the legitimate freedom questions people on both sides of this issue are facing? Any piece of legislation or other governmental response that considers the rights of either the LGBT community or religious individuals and organizations without considering how protecting these rights will impact the freedoms of the other group, will be a political and PR nonstarter.

What’s the alternative? A conversation, for starters, where everyone reaches across the uncomfortable aisle. It can be done. We know that from the example of Utah. The questions is, where are the leaders who will reach out?