The First Amendment Defense Act Is Taxpayer-Funded Hate

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Yesterday—on the day commemorating one month since a gunman opened fired in a gay nightclub in Orlando, FL, slaughtering 49 individuals—the House Committee on Oversight & Government Reform provided a platform to justify hate cloaked in the guise of religious or moral belief by holding a hearing on the so-called “First Amendment Defense Act,” (or FADA; H.R. 2802).  The bill is the latest in a prolonged campaign to legislatively sanction discrimination masked under religious or moral beliefs—allowing for discriminatory treatment based upon status, including pregnancy, sexual orientation, or gender identity.  As our nation mourns the horrific act in Orlando, some opportunistic politicians see this as a chance to further embed hate in the legislative agenda in the waning days of Congress.
Reminiscent of pre-civil rights era laws, the bill would allow for discrimination against those in same-sex marriages or relationships and unmarried individuals engaging in sexual relationships outside of different-sex marriages, so long as it is justified under the guise of religious or moral belief.  This legislation could have a profoundly negative impact on women; specifically, LGBTQ women; unmarried women who use contraception or become pregnant; and unmarried single mothers could all be targets of discrimination that the federal government would be prohibited from opposing under this bill.

For example, the bill could embolden the following kind of discrimination against women:

  • Federal contractors could feel empowered to terminate unmarried women who became pregnant, or women in same-sex married couples, because the bill prohibits the federal government from terminating any contract on the basis of actions motivated by a belief that sexual relations should only occur between married different-sex couples.
  • The federal government would be hamstrung in efforts to enforce Title IX’s protections against pregnancy discrimination and sex discrimination if a school receiving federal grants sought to expel unmarried pregnant students or unmarried female students with children.

* The bill could give many employers the mistaken impression that they are permitted to discriminate against unmarried pregnant employees without fear of federal enforcement of Title VII of the Civil Rights Act of 1964[1] and the Pregnancy Discrimination Act (PDA).[2]  This undermines our nation’s most significant civil rights laws and effectively endorses taxpayer-funded discrimination.
Our nation will suffer as a result of propagating this kind of discriminatory legislation. For women, deciding whether and when to have children is a private health decision of enormous economic consequence and women must be able to make that decision without fear of discrimination.  This bill runs counter not only to civil rights law and established legal precedent—including Supreme Court precedent upholding the legality of same sex marriages in Obergefell v. Hodges—but also to a woman’s constitutional right to make reproductive health decision free from governmental roadblocks, most recently affirmed in the case of Whole Woman’s Health v. Hellerstedt.[3]
Promoting discrimination is dangerous and harmful—not only for women, but for everyone in our nation because it undermines the ideals of equality and diversity that are central to our strength as a nation.  Just as our country fought to eradicate itself from the shameful legacy of Jim Crow laws that sanctioned racial discrimination and segregation, we must fight against any bills that embolden discriminatory treatment of individuals, including discrimination based upon sexual orientation, gender identity, pregnancy status, or marital status.
[1] Id.
[2] 42 U.S.C. § 2000e(k).
[3] 579 U.S. ___ (2016).