First Amendment Defense Act: Congress would protect discrimination against gays and single mothers.

This Bizarre Bill Would Protect Discrimination Against Gays—and, Um, Single Mothers

This Bizarre Bill Would Protect Discrimination Against Gays—and, Um, Single Mothers

The law, lawyers, and the court.
July 23 2015 5:45 AM

Immoral Convictions

Opponents of marriage equality are pushing a breathtakingly bad bill.

Anti-gay Christian protesters preach and hold banners at the LA Pride Parade on June 8, 2014 in West Hollywood, California.
Anti-gay Christian protesters preach and hold banners at the L.A. Pride Parade on June 8, 2014 in West Hollywood, California.

Photo by David McNew/Getty Images

Republicans in Congress had many ways to demonstrate how much they disagreed with the Supreme Court’s decision in Obergefell v. Hodges, which declared a constitutional right to same-sex marriage. They could have passed a resolution condemning the ruling, whipped up votes for a constitutional amendment to overturn it, or encouraged states to ignore it. Instead, Republicans opted for the weirdest option: They introduced a bizarre bill that would legalize discrimination against not just gay couples—but also single mothers.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The basic purpose of the absurdly titled First Amendment Defense Act is presented squarely in its text. The federal government may not take “any discriminatory action against a person” who “believes or acts in accordance with the 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.”

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As with most “religious liberty” bills, the real animus here lies in the details. The bill defines a “person” to encompass for-profit businesses and corporations. “Discriminatory action” includes revocation of tax-exempt status, grants, loans, benefits, or employment. “Acts,” not just beliefs, are protected. You can simply assert your “moral conviction”—not your actual religious belief—that “sexual relations are properly reserved to” a heterosexual marriage in order to claim a right to be protected. And, perhaps worst of all, there’s no balancing text weighing the expression of these religious beliefs against compelling government interests. Religion wins every time. As the ACLU puts it, the First Amendment Defense Act is like the anti-gay Indiana law on steroids.

What effect would all of this densely packed legalese have in practice? To start, it would instantly revoke every federal gay rights measure ever passed and pre-emptively nullify any future measures. President Obama’s LGBT nondiscrimination order would be entirely undermined: Federal contractors would only need assert that gay sex and gay marriage violate their “moral convictions,” and they could fire gay employees with impunity. Federal grantees, such as homeless shelters and drug treatment programs, could turn away gay people at the door. Businesses could refuse to let gay employees care for a sick spouse, in contravention of medical leave laws. Even low-level government employees could refuse to process gay couples’ tax returns, Social Security checks, or visa applications.

The drafters of the First Amendment Defense Act likely foresaw—and eagerly anticipated—these consequences. But it’s not clear whether they understood that their law’s discrimination wouldn’t stop with gay people. The bill commands courts to interpret the bill broadly and to avoid “narrow construction.” It overrides any legitimate nondiscrimination protections that came before it. And its text is quite sweeping, protecting people (and businesses) who believe “sexual relations are properly reserved to” a heterosexual marriage.

That language was probably designed to legalize discrimination against gay people, married or not. (Under the act, a contractor could fire a gay person for having had gay sex at some time or another.) But by its plain text, the First Amendment Defense Act’s secondary effect is clear: It would wipe out all federal protections for single mothers.

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This consequence is so obvious that it’s difficult to see how the act’s drafters didn’t anticipate it. A mother who conceived a child out of wedlock engaged in “sexual relations” outside of a heterosexual marriage. Federal law currently protects single mothers from discrimination in many contexts—but the act would nullify those protections. A university could fire an unmarried professor for getting pregnant and continue to receive federal funds. Commercial landlords could refuse to rent to single mothers and face no legal ramifications. Government employees could refuse to process Social Security paperwork or passports for single mothers and their children. Individuals, institutions, and businesses need only state that they have a “moral conviction” that “sexual relations” must be reserved to a heterosexual marriage, and they are automatically exempted from federal law.

The First Amendment Defense Act currently has 134 co-sponsors in the House and 36 in the Senate, almost all of them Republicans. If any of these co-sponsors believe their bill should revoke protections for gays but not single mothers, they must explain why. Are gay people more deserving of discrimination than single mothers? Is it a greater infringement on religious liberty to force businesses to tolerate gay people than single mothers? Is straight sex outside of marriage more morally odious than gay sex within marriage?

These are the kind of questions that religion—not the government—is good at answering. Tellingly, more than 3,000 faith leaders have already called upon Congress to back out of this sort of judgment and to oppose the bill. They shouldn’t fret too much. Even if the legislation somehow musters enough votes in the Senate, President Obama would almost certainly veto it as a gross violation of civil rights. The First Amendment Defense Act is not a serious attempt at lawmaking. It is legislative grandstanding devised to toss red meat to the GOP base.

If Republicans do actually think their bill will draw mainstream appeal, they’re sorely mistaken. The act’s vision of “discrimination” is so backward that it strains the bounds of logic. The First Amendment Defense Act would force courts to contend with a whole new category of discrimination claims: lawsuits from businesses and contractors alleging that, by losing federal funds after firing a gay employee or single mother, they suffered from discrimination. Most Republicans in Congress still won’t acknowledge that LGBT workplace discrimination deserves federal attention—but they’re eager to create federal protections for corporations hoping to discriminate. Republicans should be working to outlaw discrimination. Instead, they’re protecting the discriminators.