Perhaps not since The Patriot Act have we had members of Congress plainly attempt to name a proposed law by attributing to it the opposite of the effect the law would have. Just this year, Senator Mike Lee introduced in the Senate a slightly revised version of the First Amendment Defense Act (FADA), a proposed law that would do basically nothing to protect First Amendment rights and appears to have been written to undermine the freedoms the First Amendment was written to secure. Yet if it is enacted, President Trump has promised to sign it into law.
One of the twentieth century’s best Supreme Court Justices, Justice Jackson, linked the First Amendment with the freedom of conscience, as it teaches us that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” West Virginia v. Barnette, 319 U.S. 624 (1943). But here the law proposed to “defend” the First Amendment instead invites privileged members of American society to act in ways that deprive others of the dignity that are owed to all Americans. Rather than forbidding government to prescribe orthodoxy of thought, this proposed law offers to privilege some citizens to discriminate against those who hold a contrasting set of values.
Senator Lee’s proposed law, the First Amendment Defense Act (FADA), specifically provides that the federal government “shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a 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.” Though some proponents have resisted the conclusion, it is difficult to see how acting on these marriage and sexual behavior convictions would not include declining to sell to or to serve others, on grounds of a religious duty not to facilitate evil. And such a right apparently goes well beyond marriage, as traditional religionists would prefer not to rent apartments to unmarried couples or to employ those who cohabitate with an unmarried partner.
There is at least some precedent for construing religious freedom to include some exemption from legal requirements, but not to discriminate against the already disfavored. It certainly goes beyond freedom of expression as it ever has been understood. Moreover, government prohibiting personal discrimination in business dealings or in providing government service—a wrong against another—is not reasonably characterized as “discrimination.”
One defender of the proposed law, the Heritage Foundation, contends that a government therapist, identified as a “doctor,” should be able to decline to counsel a gay couple “in a manner that violated his or her sincerely held religious beliefs.” To begin, it is difficult to imagine the religious or moral rationale for declining to counsel a gay couple, married or not. Beyond that, therapists who strongly supported anti-miscegenation laws—those forbidding interracial marriage---on religious grounds, would clearly have violated the 1964 Civil Rights Act had they declined to do business with such couples.
We should be grateful that the proposed FADA law was not enacted in that era. There is no reason to think that any law or regulation will ever again attempt to regulate the attitude one has about marriage, whether gay marriage or traditional. The issue will always be limited to whether the religiously committed to traditional marriage and who oppose the “gay lifestyle,” will be free to operate a business open to the public but deny goods or services to gay individuals. During the forty years prior to Obergefell, many religiously committed individuals simply lived with the reality that the gays they believed God would have marry could not marry under law. During that time, I never heard the freedom of religion invoked to attack the law or those who supported it and opposed gay marriage. There is no reason to perceive traditionalists as having a stronger case to make. Requiring traditional religionists to do business with all, including the gays of whom they disapprove, does not assault the First Amendment; and guaranteeing such a right is not defending it.