Bench Memos

Life Without FADA, or My Big Fat House Oversight Hearing

Yesterday morning, I was honored to be a witness at a hearing of the House Oversight and Government Reform Committee, chaired by Rep. Jason Chaffetz (R-UT), on the subject of the First Amendment Defense Act introduced by Rep. Raul Labrador (R-ID) in the House (H.R. 2802) and by Sen. Mike Lee (R-UT) in the Senate.  FADA, as the bill is called, would prevent the federal government from discriminating against persons or organizations on the basis of their “sincerely held religious belief or moral conviction” about the meaning of marriage, when it comes to tax treatment, grants, contracts, employment, benefits eligibility, accreditation, or access to federal facilities.

The Republican majority on the committee was unusually charitable to the Democratic minority, allowing the opposition to call as many witnesses against FADA as the majority called in favor of it (aside from the bill’s sponsors)—three on each side.  The Democrats called former Rep. Barney Frank, Jim Obergefell (who won last year’s Obergefell v. Hodges in the Supreme Court), and Prof. Katherine Franke of Columbia Law School.  The Republicans called me, as well as former Atlanta fire chief Kelvin Cochran, and Kristen Waggoner of the Alliance Defending Freedom, both of whom testified eloquently to what is at stake in the struggle for religious freedom since the Obergefell ruling, and fielded questions superbly throughout the hearing.

Chairman Chaffetz promised a hearing that valued “civility.”  Ranking Democratic committee member Elijah Cummings (D-MD) immediately abandoned that high standard.  Setting the low and demagogic tone of FADA’s opponents, Cummings used his opening remarks at the start of the hearing (see the 5:23 mark here) to lament the fact that the hearing was even being held on the “one-month anniversary” (sic) of the massacre of 49 people at the Pulse nightclub in Orlando.  Thus was the absurd insinuation planted that to be in favor of religious liberty to dissent from the wonderfulness of same-sex marriage is to be “anti-LGBTQ”—to be a hater and bigot—to be in favor of or somehow blameworthy for horrific acts of violence committed by others with whom one has nothing whatever in common.  Other members such as Carolyn Maloney (D-NY), Del. Eleanor Holmes Norton (D-DC), and my own congresswoman Bonnie Watson Coleman (D-NJ) followed Cummings’s lead with more of the same shameful rhetoric.  Sadly, no Republican member called them out for this disgusting attempt to demonize by association.

The bill’s sponsors testified first (beginning at 16:16 here), making it clear that FADA is anti-discriminatory legislation, not a bill “licensing discrimination” against anyone.  It’s worth noting that at present, there are no federal civil rights laws classifying “sexual orientation” as a characteristic of persons to be protected against “discrimination.”  Sex, yes; sexual orientation, no.  Of course we have all become aware lately of the Obama administration’s ludicrous identification of “gender identity” with “sex” for some civil rights purposes.  In this light, then, incessant banging on a trumped-up “license to discriminate” under FADA serves simultaneously as an effort to delegitimate that bill and to smuggle into our popular understanding—and ultimately our legal understanding—of “civil rights” the idea that “anti-LGBT discrimination” is somehow wrongful, intolerable, even illegal already.

But the fact remains that FADA does nothing to modify or negate anyone’s obligations that might exist under current provisions of federal law having immediately or even remotely to do with civil rights.  It has no impact, that is, on the federal government’s obligations or private parties’ duties under Title VII, Title IX, the Family and Medical Leave Act, the Affordable Care Act, the Violence Against Women Act, etc.  And FADA does not affect private causes of action in the federal courts, providing no affirmative defense (“FADA lets me do it”) for anyone to evade a legal duty or infringe on someone’s rights contrary to some other law.  Roger Severino of the Heritage Foundation has a concise rundown of the patently erroneous charges against FADA at the Daily Signal.

But these false claims were repeated ad nauseam by the Democrats on the committee.  As I pointed out when I got the chance near the end of the hearing (see here at 13:30), even the Democrats’ most expert witness, Prof. Franke, was simply misreading the statute, advancing the view that FADA relieves people of every kind of “penalty” the law may impose, when in fact the word “penalty” appears in just one place in the bill, tightly confined in the context of tax penalties assessed under the Internal Revenue Code.  Once that word is replaced in its context, easily two-thirds of Prof. Franke’s prepared testimony can go straight into the shredder.

Yet for me the most revealing thing said at the hearing was a remark Barney Frank twice made in connection with Chief Kelvin Cochran’s case.  As a victim of discrimination against his religious beliefs by the city of Atlanta, Chief Cochran would not have been protected by FADA, which reaches only the discriminatory acts and policies of the federal government.  Cochran, however, had served for a year or so as an appointee of President Obama as the top official of the U.S. Fire Administration, an arm of FEMA in Homeland Security.  So a member of the committee asked him whether he thought he could have lost his federal job for the same cause that cost him his Atlanta job—that he privately published a book for a men’s Bible study he led, in which a few paragraphs mentioned biblical norms regarding sexual morality.  He said he feared that this could have happened.

By this time all members of the committee, Democrats as well as Republicans, had publicly deplored what happened to Cochran, and former congressman Frank, when he had an opportunity, allowed that it would have been terrible for him to lose his federal job, because the job of fire administrator is just too far removed from the question of marriage or a public official’s views of marriage.  But . . . (do you see where this is going already?) if someone were to work at the EEOC or the Civil Rights Division of the Justice Department, why, that would be different.  Then people’s constitutional rights would be at stake, Frank declared, twice (here at 2:23:00 and here at 29:00).

Well now.  I waited for a Republican member to pounce on this, but the hearing was past the three-hour mark and the number of members on the dais had thinned.  So when I was asked the very last question of the hearing, I took the opportunity to ask Mr. Frank for clarification (see here at 31:10).  There are surely, I said, people working today at EEOC and at Justice’s Civil Rights Division who disagree with the Obergefell ruling and believe marriage is rightly understood as the conjugal union of a man and a woman.  They can surely continue to enforce Americans’ legal rights as their agency duties require.  Does Barney Frank really want them to lose their jobs?

True to form, the redoubtable former congressman doubled down.  Yes.  Yes, they should be sacked from their positions, he said.  And thus the hearing ended.

Do the Democratic members of House Oversight and Government Reform agree with their former colleague?  Does Barney Frank speak for them?  Is an Orthodox Jew, a Muslim, a Baptist, a Mormon, a Jain, a Buddhist, an Anabaptist, a Pentecostal, a Greek or Armenian Orthodox Christian, a Catholic, who believes marriage is between a man and a woman unfit to serve in career rights-enforcement positions in the federal executive branch, merely thanks to Obergefell v. Hodges

And if in positions relevant to civil rights, what about other positions, sooner or later—probably sooner?  What about FBI agents generally?  Or officers in other law enforcement agencies, or the armed forces?  Or positions with policy responsibilities relating to family, or education, or housing, or federal benefits, in other federal agencies?  Is Barney Frank’s forbearance in Chief Cochran’s case just temporary, until such time as all federal employment can be subject to a same-sex marriage litmus test?  There is no reason to be confident that this is not the case.

What is the limiting principle here?  Silly question, perhaps—liberals don’t go in much for limiting principles, do they?  Total victory for their intolerant views might be hindered, after all.

In his own way, Barney Frank had proven to be the most effective witness in favor of FADA.  Follow his advice, neglect to protect religious liberty from discrimination by the federal government in employment, taxation, grants, contracts, and the rest, and we will soon see the entire federal government go in for a Stalinist purge in the name of “toleration” on the question of same-sex marriage.

Pass FADA, on the other hand, and a significant step will be taken for the freedom of conscience.  We who still hold to the truth about marriage, and want to live that truth as well as speak it, will have the space a free society affords to keep up the good fight for that truth, knowing that at least the federal government will not be our sworn enemy, determined to stamp us out.  As for the Democrats, as their most candid partisan Barney Frank informed us, we can realistically expect no quarter from them.

 

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