Politics & Policy

Why I Support a Viewpoint-Neutral First Amendment Defense Act

(Guzel Andrianova/Dreamstime)
In principle, promising protections to supporters of same-sex marriage should be unobjectionable.

Senator Mike Lee and Representative Raul Labrador deserve kudos for shepherding the Left’s most disliked piece of legislation: The First Amendment Defense Act (FADA). I’m not fond of the name, but the substance is something every tolerant, decent, liberty-loving American should support. The bill would prevent the federal government from punishing any American for believing that marriage is the union of husband and wife and that sexual relations are properly reserved to marriage so understood.

Kelvin Cochran testified at the first congressional hearing for the bill on July 12. Cochran is the kind of man we all should be proud that America still produces: Through faith and hard work, he rose from hardscrabble poverty to become the chief of the Atlanta Fire Department and, by all accounts, a really good one. Cochran was fired after publishing a Bible-study book that included a one-paragraph rejection of all sexual sin, including homosexual sex.

“Equal rights, true tolerance, means, regardless of your position on marriage, you should be able to peaceably live out your beliefs and not suffer discrimination at the hands of the government,” Cochran told the House Committee on Government Oversight and Reform.

Senator Mike Lee (R., Utah) showed up to testify to the need for FADA’s protections. He pointed to the moment when Obama’s solicitor general Donald Verrilli was asked by Justice Samuel Alito whether religious universities could lose their tax-exempt status for their views on marriage: “It’s certainly going to be an issue,” Mr. Verrilli said. “I — I don’t deny that. I don’t deny that, Justice Alito.”

“What an individual or organization believes about marriage is not, and never should be, any of the government’s business.”

– Sen. Mike Lee

“What an individual or organization believes about marriage is not, and never should be, any of the government’s business, and it certainly should never be part of the government’s eligibility rubric in distributing licenses, awarding accreditations, or issuing grants,” Mr. Lee said. “And the First Amendment Defense Act simply ensures that this will always remain true in America.”

Who could argue with that? But the hearing exposed how extreme the Democrats are becoming. The Washington Times reports that Representative Mick Mulvaney (R., S.C.) asked panelists whether Cochran deserved to be fired because of his belief in traditional marriage. No panelists raised their hands.

But several did raise their hands when he asked them whether they believed that churches and other religious organizations deserve to lose their tax-exempt status because of their beliefs about marriage.

Given the urgent need for such protections for dissenters from gay marriage, why then have Family Research Council and Liberty Counsel chosen to withdraw their support for FADA? Because they object to new language that was inserted that would make FADA “viewpoint neutral” — i.e., that would prevent the federal government from punishing you for believing either that marriage is the union of one man and one woman or that same-sex unions can be marriages.

The old language read:

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.

The new language reads: 

The Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of two individuals of the opposite sex; or two individuals of the same sex; or extramarital relations are improper.

Both FRC and Liberty Counsel raise some good points on the technical language. But these do not seem to be the heart of the objection. “For the first time, the federal government under the proposed FADA will formerly recognize and condone same-sex marriage on par with the natural marriage,” Liberty Counsel noted in a press release in which they announced their withdrawal of support.

Making the bill viewpoint-neutral makes it far more likely we get Anthony Kennedy’s vote.

The language of the bill does no such thing. It merely acknowledges the that there are people — including, sadly, five of them on the Supreme Court and the guy in that White House — who believe that same-sex unions can be marriages.  

I do not know of any Republicans who plan to try to take away the tax-exempt status of the Human Rights Campaign. But the hearing showed very clearly that there are Democrats thinking about whether they can do that to groups such as the Family Research Council. California is about to pass a bill denying students the right to use their college grants at any college that permits neither married gay students in its dorms for married people nor transgender people to live in the dorm room of their choice.

#related#I certainly do not want any pro–gay marriage people to lose their jobs, or their accreditation, or their licenses, or their livelihoods because of their views. And making the bill viewpoint-neutral makes it far more likely we get Anthony Kennedy’s vote.

So let’s tweak the language, by all means, and carefully consider the consequences. But I see nothing wrong in principle with promising to supporters of gay marriage supporters that they won’t be punished by their government for their views, either.

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