Conservatives have launched religious-based legal objections to nearly every program designed to protect the rights and health of marginalized and vulnerable populations, challenging everything from the Social Security Act to the Affordable Care Act’s birth control benefit. But following the November election of President-elect Donald Trump and Vice President-elect Mike Pence, religious conservatives are poised to take unprecedented steps to shred constitutional guarantees of the separation of church and state while rolling back whatever civil rights gains have been made since the New Deal.
The First Amendment Defense Act (FADA) is exactly the kind of weaponized legislation religious conservatives have been fighting for since the 1990s and the passage of the Religious Freedom Restoration Act (RFRA). Absent a successful Senate filibuster, Congress looks poised to pass FADA, and Donald Trump has promised to sign it.
FADA, which was written in the wake of the U.S. Supreme Court’s marriage equality ruling in Obergefell v. Hodges, is designed both to overturn that decision and, broadly, to protect individuals who use their religious beliefs as justification for violating civil rights law.
Specifically, FADA acts as a block on federal civil rights compliance requirements so long as that non-compliance is grounded in a religious or moral objection. The legislation states that the federal government can’t take “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.”
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FADA defines “person” as any person regardless of religious affiliation, including corporations and other entities regardless of for-profit or nonprofit status.
Idaho Rep. Raúl Labrador and Utah Sen. Mike Lee, both Republicans, first introduced FADA in June 2015. One year later, Rep. Labrador introduced an expanded version that permitted discrimination not just in accordance with a religious or moral opposition to marriage equality, but to any religious or moral objection whatsoever to sex outside the confines of traditional heterosexual marriage.
That’s the current version Congress will likely take up as soon as Trump and Pence are sworn in.
FADA’s language may, at first blush, look to only address conservative qualms about marriage equality, but its reach goes well beyond not wanting to bake a cake for a gay couple. According to the language of FADA, “discriminatory action” includes such things as exempting the tax-exempt status of an organization or refusing a federal grant because that person did something like fire a woman because they have a moral objection to women working outside the home. If the employer believes it is wrong for women to work and uses that as the justification for her termination, FADA could shield that employer from a discrimination lawsuit. And because it would effectively weaken every civil rights law, FADA also could be used to justify a provider refusing medical services to a transgender patient, or a landlord/management company refusing to rent an apartment to an interracial couple. Religious conservatives have, mostly unsuccessfully, raised legal objections to each of these scenarios in the past. Under FADA’s broad language, though, the chances of those discriminatory actions being shielded are now significantly greater.
Following the 2014 Supreme Court decision in Burwell v. Hobby Lobby, which found that for-profit corporations could launch religious objections to complying with portions of the Affordable Care Act, none of the expansiveness of FADA should come as a surprise. Nor should it surprise anyone that after Hobby Lobby and then Obergefell v. Hodges, conservative legislatures in states across the country would seize the opening to combine the religious objections granted in Hobby Lobby with the visceral opposition in evangelical circles to marriage equality and LGTBQ people generally to push for a new wave of discriminatory laws marketed as “religious freedom” measures but more accurately are religious imposition laws.
In a new database, Rewire has tracked the full extent of those efforts.
During 2015 there was a flurry of state legislative activity attempting to enshrine similar protections for discriminatory actions. Public, and notably corporate, backlash meant most of those measures were defeated with one notable exception: Indiana. As governor of Indiana, Pence oversaw enactment of one of the most expansive discriminatory shield laws in the country, giving apparently little concern over any financial, let alone human rights, effect such a law would have on his state.
In other words, FADA isn’t new legislation. Congress just has new momentum to get it passed.
If enacted, FADA would become the latest in an expanding arsenal of legal weapons stockpiled by the religious right, but it is the one that has the chance to do the greatest harm. FADA has the potential to reach every aspect of civic life—employment; housing; education; health care; insurance benefits.
It is an economic assault on women, people of color, and the LGBTQ community, dressed up by conservatives as deference to religious piety. And it has the full support of Congress and the president-elect.
And it is an economic assault the Supreme Court could reinforce later this term when it hears the case of Trinity Lutheran Church of Columbia v. Pauley. That case questions whether or not states can exclude churches from block grant funding for programs like daycare support. Should the challengers win and the barrier of government funding of religious institutions crumble further, the combined effect of siphoning money into religious institutions while simultaneously creating legal protections for religious conservatives to discriminate at will would be devastating for marginalized communities.
The Christian right, however, seems unconcerned with any of these scenarios.
It is the callous disregard for any of the consequences of legislation like FADA that will mark this wave of religious right activism. Behind them they will leave a paper trail of legislation significantly expanding their ability to use the power of the federal government to further marginalize those populations most at need.
This is what conservatives mean when they say they plan to make America great again.