Few things divide our nation more than hotly contested questions of morality, culture, and conscience, so I was glad to hear Pope Francis, in his address to Congress, exhort us to be patient, modest, and compassionate in our public policy debates. Toward that end, I believe it’s worth clarifying several key features of the First Amendment Defense Act, which was recently introduced in Congress and has been the subject of controversy and misunderstandings.
First, the impetus behind the bill has nothing to do with a fear that clergy members are in danger of being forced to officiate same-sex marriages. In truth, supporters of FADA are concerned that faith-based institutions that have been serving the public for generations could be forced out of existence by the federal government on account of their suddenly heterodox beliefs about marriage and sexuality – beliefs that President Obama himself held until just a few years ago.
This is not a matter of speculation or hyperbole. It’s exactly what the United States Solicitor General told the Supreme Court during oral arguments in the case of Obergefell v.Hodges. When asked whether a religious school could lose its tax-exempt status for maintaining its belief that marriage is the union of a man and woman, the Solicitor General answered in the affirmative, stating that “[i]t’s certainly going to be an issue.”
Without new protections, colleges and universities, like Brigham Young University or Gordon College, could lose their accreditation, Catholic hospitals could lose Medicaid funding, and countless faith-based K-12 institutions across the country could have their non-profit status revoked. This would be devastating to these institutions and the communities they serve.
The specter of federal workers refusing to process tax returns for same-sex couples is also unfounded. The truth is that FADA expressly excludes from protection federal employees acting within the scope of their employment. Even if Kim Davis were a federal employee (in fact, she’s employed by the state of Kentucky and would therefore fall outside the scope of the bill), she would not have been protected by FADA.
And neither would the bill nullify federal anti-discrimination measures designed to protect gays and lesbians. To the contrary, the bill does not alter or modify any civil rights protections, state or federal. Any suggestion otherwise is simply false.
In the Obergefell opinion, Justice Anthony Kennedy implored all Americans to remember that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
The First Amendment Defense Act merely seeks to make good on Justice Kennedy’s appeal to America’s long tradition of religious liberty. I hope all Americans can come to this debate with an honest understanding of the real difficulties involved and come together to find a sensible middle ground founded on mutual tolerance.