What Is FADA & Why Is It Important Now?

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There was a rumour this week that President Trump was gearing up to announce a discriminatory executive order targeting LGBTQ people. Thankfully, the White House shut this down, issuing a statement emphasising President Trump's commitment to upholding the executive order signed by President Obama in 2014, which prohibits federal contractors and subcontractors from discriminating on the basis of sexual orientation and gender identity. So the executive order is a no-go for now, which is a relief, but the statement from President Trump fails to address one key piece of troubling proposed legislation that he supports: the First Amendment Defence Act, or FADA.

What is FADA?


FADA is a piece of proposed legislation that would prohibit the government from discriminating against people or businesses that act on their belief that marriage is between a man and a woman, or that sex is reserved for marriages between a man and a woman. To put it more clearly: Under FADA, people and businesses have the right to discriminate against LGBTQ families and individuals because of their personal beliefs about same-sex marriage.

President Trump has been crystal-clear that he supports FADA. "If I am elected president and Congress passes the First Amendment Defence Act, I will sign it to protect the deeply held religious beliefs of Catholics and the beliefs of Americans of all faiths," he said on his website in September 2016. FADA is also in line with Vice President Mike Pence's beliefs about marriage. "Pence clearly has hoped to bring his 'religion for discrimination' agenda from Indiana to the entire country," says Jennifer C. Pizer, Senior Counsel and Director, Law and Policy Project for Lambda Legal, a legal nonprofit that protects the rights of LGBTQ people and those with HIV.

FADA has experts and advocates confused and concerned. "Legally, the belief is that FADA violates the Equal Protection and Establishment Clause of the Constitution, by privileging one set of beliefs over all others, and citing religion as a justification for the privilege," says Ashe McGovern, associate director at the Public Rights/Public Conscience Project at Columbia University. "There's already a careful balance struck by the courts and in the Constitution between religious liberties and other fundamental rights, and FADA completely interrupts that balance in a problematic way."

Who else supports FADA?


FADA was first introduced in the 114th Congress by Idaho Representative Raúl Labrador and Utah Senator Mike Lee (both Republicans) in June of 2015. It was revised in July of 2016, but the revisions were never formally introduced in Congress. They did have one hearing in the House Oversight and Government Reform Committee to review the revisions, because of concerns that President Obama would veto it — after all, FADA completely undermines the former president's aforementioned anti-discrimination executive order. FADA hasn't been introduced into the 115th Congress yet, but experts anticipate it could happen at any time. "Both chambers of Congress are controlled by Republicans, many of whom have said they strongly support FADA, and Trump's cabinet and appointees are even co-sponsors of FADA," McGovern says.

At last count, 171 House Republicans and one Democrat co-sponsored the most recent version of the bill. Pizer says that FADA supporters believe that people who are against same-sex couples are the ones who now experience discrimination, because they aren't able to discriminate against LGBTQ people. Supporters of FADA even say it's unfair discrimination that they aren't able to get federal contracts and grants because they insist on discriminating against LGBTQ people, according to Pizer.

At the FADA hearing last July, Kristen Waggoner, a senior counsel and senior vice president of U.S. legal advocacy with the Alliance Defending Freedom (ADF), gave a testimony defending the proposed legislation and clearing up misconceptions about FADA supporters. "Are we willing to censor and force individuals, organisations, and churches to close simply because they adhere to the long held belief that lies at the core of each of the Abrahamic faith?" she said in her opening statement. "Laws that protect the views of marriage promote tolerance and make it a peaceful place to live and FADA does exactly that." She then said, "Comparing those who believe in man-woman marriage to racists is intellectually dishonest." (We reached out to the ADF for a comment, and will update the story when we hear back.)

What would its passage mean for the LGBTQ community?


Even legal experts are confused about what exactly FADA would mean, because the language is intentionally broad and vague. "FADA's language is so sweeping that it's impossible to catalog all its likely impacts on LGBTQ people and their families," Pizer says. "Its consequences would be devastating for huge numbers of Americans, and it would prompt widespread confusion and intensive litigation." FADA-supporters claim that Americans would not lose rights if FADA were enacted, and as Waggoner said in her testimony, "FADA is very limited in scope and doesn't take away civil rights protection; any suggestion to the contrary isn't supported by the bill's text." So what is supported by the text?

What we do know, Pizer says, is that the point of FADA is to make it a "religious right" to discriminate against workers, tenants, patients, and other people who are currently protected in various ways by federal laws, rules, and nondiscrimination terms of federal contracts and grants. "FADA would really blow gaping holes into our nation's civil rights protections," says Sarah Warbelow, legal director for the Human Rights Campaign. "All the sorts of ways in which the federal government has begun to extend critical protection to LGBTQ groups, FADA would allow people to pick and choose whether or not they could treat you equally, based on their religious beliefs — and using taxpayer funds."

To give you a sense of which organisations or businesses receive government funding and would get free rein to discriminate under FADA it's: almost all healthcare facilities, the vast majority of universities, businesses that have five or fewer board members, and homeless shelters, Warbelow says. All these places could legally turn away a person, just because they're gay or transgender. The last time FADA was introduced to Congress on a federal level, it didn't include specific provisions targeting transgender people, although Warbelow says it's likely that FADA will be updated to include something about "the religious belief that sex is determined at birth." FADA also protects the religious belief that sexual relationships should only take place within heterosexual marriages, so Pizer says that single parents and unmarried straight couples could be impacted, too.

Under FADA, an organisation could assert the religious belief that they don't want to give benefits to same-sex couples. Corporations and non-profits could refuse to allow same-sex spouses to take time off to care for their spouses under the Family and Medical Leave Act. Or, if an organisation decides that a same-sex relationship is incompatible with their beliefs, they could terminate the person's employment. FADA even gives certain individuals the legal right to discriminate. A simple example is, if you were a therapist who had lost your license because you berated a same-sex couple or engaged in conversion therapy, under FADA, the federal government would act as if you still had a license, Warbelow says.

How likely is it to pass?


It depends on how you look at it. "The American public cares about treating LGBTQ people fairly, and most Congress members do, too," Warbelow says. "But if they're not educated on what this bill will do and not hearing their state's concerns, FADA does have a chance."

People are well-aware of what's at stake and, quite frankly, they're pissed. "Claiming [LGBTQ] ally status for not overturning the progress of your predecessor is a rather low bar," says Chad Griffin, president of the Human Rights Campaign, in a press release. "Donald Trump has left the key question unanswered — will he commit to opposing any executive actions that allow government employees, taxpayer-funded organisations, or even companies to discriminate?"

If you're worried, there is something you can do: Call your congressperson. Warbelow says elected officials need to hear from their constituents that discrimination is wrong, even under this pretence of First Amendment protections. "We think there's a real chance at defeating this legislation if we send a clear message to Congress."

McGovern encourages people to share their stories about how this proposed legislation might impact them as much as possible. "The power of storytelling at this moment in time might be our most effective way to convey that laws like FADA would impact our lives in significant ways," they say.


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