Law & the Courts

Protecting the First Amendment from the Supreme Court

(Photo Illustration: NRO)

Senator Mike Lee (R., Utah) has published a new and improved version of the First Amendment Defense Act (FADA), an essential piece of legislation that seeks to protect religious liberty in an increasingly hostile environment.

Drafting legislation is never easy, especially on this issue, given the treacherous new landscape created by the Supreme Court’s imposition of a supposed constitutional right to same-sex marriage. The original version of FADA elicited some vigorous criticisms — some in good faith, others perhaps less so.

Senator Lee’s new bill responds to many of these. The bill no longer has a catch-all provision that would forbid the federal government from “otherwise discriminat[ing]” against persons who believe that marriage is the union of a man and a woman. (The open-ended nature of that catch-all provision had invited a parade of horribles that, however far-fetched, was politically problematic.)

The new version has several express exclusions from the category of protected persons. Those exclusions clearly eliminate concerns that under the bill “federal workers could refuse to process the tax returns of same-sex couples,” as the New York Times worried in an editorial, or that hospitals could refuse care to someone in a same-sex marriage. In addition, “publicly traded for-profit entities” aren’t considered protected persons.

FADA would provide a safe harbor from the real threats to conscience that the progressive juggernaut on gay marriage poses.

FADA is so important because it would provide a safe harbor from the real threats to conscience that the progressive juggernaut on gay marriage poses. Among FADA’s modest aims: protect the tax-exempt status of entities that adhere to the belief that marriage is the union of a man and a woman; protect individuals who hold the same belief about marriage that President Obama professed when he was elected from being deprived of eligibility for federal grants, licenses, and employment; and prevent colleges and schools from losing their accreditation because of their position on marriage.

#related#This doesn’t mean that the new version of the bill should necessarily be written in stone. Reasonable people of good will who care about religious liberty will have different judgments about how to resolve in principle the clashes between same-sex marriage and religious liberty, and such people will also have different prudential judgments about what is politically attainable. But those differences should be constructively worked out as the legislation makes its way to successful passage through Congress.

Finally, we hope that critics of any particular provisions in FADA will clarify whether or not they support its overarching goals. For those who don’t, it would seem that their real objections are to the American traditions of religious liberty and pluralism.

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