First Amendment Defense Act: Does The New Bill Protect Religious Freedom Or Give License To Discriminate Against LGBTQ?

The First Amendment Defense Act is back on the table. The 2015 bill, which barely made it to a committee and was never voted on by the House, has been re-submitted, and its sponsor believes it has a much better chance at passing. But what does the bill actually do, and what does it mean for LGBTQ rights?

As NBC News reports, Texas Senator Ted Cruz and co-sponsor Senator Mike Lee of Utah filed the First Amendment Defense Act in 2015, only to find it quickly squashed in committee and never get a vote in the full House.

However, with both houses of Congress controlled by Republicans, and Donald Trump soon to take over the Oval Office — and who has pledged his support for the bill — Cruz believes the bill will likely become law.

So what is the First Amendment Defense Act? The title refers to the so-called “free exercise” clause of the First Amendment to the Constitution.

“Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.”

In other words, the “free exercise” clause says that the government cannot punish you for practicing your religious beliefs (within certain parameters: for example, you can’t claim your religion requires you to commit murder). Neither can it compel you to perform an action that violates your religion — for example, by requiring you to vote, or to fight in a war.

Some conservatives claim that the “free exercise clause” has been under attack lately by state and local laws that require businesses to provide services to LGBTQ individuals, even if doing so violates the business owner’s religious beliefs. The issue seems to come up most frequently in the form of cakes: across the country, over the past few years, several bakers have found themselves in hot water for refusing to bake cakes for gay weddings, even though their religious beliefs hold that gay marriage is a sin.

The First Amendment Defense Act seeks to address those issues, at least at the federal level. Specifically, the act would prohibit the federal government from taking “discriminatory action” against any business that refuses to engage in business with LGBTQ individuals, if the business operator adheres to two sets of beliefs.

“(1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.”

Furthermore, the act allows individuals and businesses to sue the federal government for “interfering” in their right to discriminate, and requires the Attorney General to defend the businesses.

In comments made available via National Review, Lee explained why he believes the First Amendment Defense Act is necessary.

“The American people need to have some assurance that they won’t be treated differently based on their religious beliefs. They need to be protected from retaliation by government against particular religious beliefs that the government chooses to disfavor.”

Opponents of the act, however, claim that it is nothing more than broad license to discriminate against the LGBTQ community. Jennifer Pizer, law and policy director at Lambda Legal (an LGBTQ legal advocacy group), told NBC News that the act is unconstitutional and won’t fly.

“This proposed new law violates both Equal Protection and the Establishment Clause by elevating one set of religious beliefs above all others. And by targeting LGBT Americans as a group, contrary to settled constitutional law.”

As of this writing, it is unclear when, or even if, the First Amendment Defense Act will be voted on in Congress.

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