Here are a few things I believe about the so-called First Amendment Defense Act, now roiling lawmakers under the Gold Dome:
I believe the GOP state senators who say they don’t intend the bill, known as FADA, to permit discrimination by citizens and businesses. I believe them when they say they just want to prevent discrimination against those citizens and businesses by government.
I believe FADA, as currently written, has been mischaracterized as being about religious liberty. Every defense it gives those who believe in the traditional definition of marriage also applies to those who believe in same-sex marriage. If you’re going to believe the worst about people, and think FADA would permit discrimination against gay couples, you must also believe it would prevent government from denying contracts, grants, etc. to gay couples. It cuts both ways.
But I also believe the bill’s actual language doesn’t strike the careful balance its advocates sought.
I hear FADA’s advocates say it protects people and “faith-based organizations” from participating in a marriage of which they disapprove. I’ve asked them to show me where the bill says that. Because the text I see is far broader than that.
On a couple of occasions, I’ve asked its advocates if the bill would undermine any non-discrimination laws regarding employment or housing. I have mostly received blank stares, as if they hadn’t considered it.
On the other hand, I sense its opponents don’t want to come right out and say they’d be willing to countenance the closing of a Catholic adoption agency, for instance, if its operators could be coerced by government to place children with families that don’t meet that church’s spiritual guidelines. They’d rather insist it’ll never come to that.
Which, as it happens, is the same response FADA’s supporters give when asked about businesses using the bill to justify discrimination.
So after witnessing a lot discussion and hand-wringing and accusations in and around the Capitol regarding this bill, I believe I’m still where I was a few weeks ago — when I wrote in this space that the middle of a fast-paced, election-year legislative session is no time to try to divine all the consequences, intended or unintended, of a novel bill like this.
There is a good argument for having legislators, not judges, sort out where one proverbial nose ends and another begins when it comes to LGBT rights and religious liberty. FADA’s authors tried to square that circle by offering a general, marriage-related protection for all. But in its generality, it would draw the line in a way we can’t predict, because this is untraveled ground.
It would be better to move forward with time-tested measures whose effects are more knowable, such as the federal public accommodations law and Religious Freedom Restoration Act. Then, take the coming months to study what, if anything, more should be done.
Because here’s one last thing I believe about this entire matter: If an imprudent bill becomes law, and then a mighty backlash damages the state and causes the Legislature to backtrack, there won’t be a second chance to ensure the kind of protections FADA’s supporters want.
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