Conservative members of Congress appeared confident today that a new bill designed to prohibit the federal government from taking “discriminatory action” against a person or institution based on his or its religious beliefs about marriage will reach the president’s desk sooner, rather than later.
The bill, called the First Amendment Defense Act, was written in anticipation of the Supreme Court’s gay marriage decision. It would bar the federal government from punishing religious schools, organizations or individuals for their stance against same-sex marriage, or for believing that sexual relations are reserved to marriage, by revoking their tax-exempt status, for example.
During the Supreme Court arguments in Obergefell v. Hodges, Solicitor General Donald Verrilli conceded that if the Supreme Court legalized gay marriage across the country, religious schools’ tax-exempt status could be threatened if the schools opposed gay marriage.
The legislation has already garnered 130 co-sponsors in the House and 36 in the Senate.
Conservatives, like Rep. Vicky Hartzler, R-Mo., co-chair of the Values Action Team, say the measure provides “the most basic protection.”
“It’s sad that we even need such a bill,” said Hartzler in a press conference today held by the Republican Study Committee.
But not every Republican is on board, as some apparently fear “another Indiana.”
After speaking at the Capitol Hill press conference, Rep. Raul Labrador, R-Idaho, a co-sponsor of the legislation, told The Daily Signal that some Republicans are hesitant to support the First Amendment Defense Act, which he introduced with Sen. Mike Lee, R-Utah, in light of the backlash Gov. Mike Pence faced over his religious freedom law earlier this year.
Although the two laws are very different—one is a state Religious Freedom Restoration Act and the other seeks to bar very specific actions taken by the federal government against individuals or institutions concerning marriage—they share at least two critics, the LGBT advocacy group Human Rights Council and the American Civil Liberties Union.
In the case of Indiana’s Religious Freedom Restoration Act, LGBT organizations, along with big businesses like Angie’s List, Apple and American Airlines, argued the law allows private business owners to discriminate against people based on their sexual orientation. However, “no one has ever successfully used Religious Freedom Restoration Act to defend such actions,” wrote Heritage Foundation’s Ryan T. Anderson and Sarah Torre earlier this year, noting that “no one is interested in refusing to serve gays and lesbians simply because of their sexual orientation.”
>>> For more on religious liberty and same-sex marriage, see Ryan T. Anderson’s new book, “Truth Overruled: The Future of Marriage and Religious Freedom.”
The First Amendment Defense Act hasn’t faced the same scale of attacks, and during the press conference, Lee made clear the measure would not affect private business owners, such as the Oregon bakers Aaron and Melissa Klein, who were fined $135,000 after refusing to bake a cake for a lesbian wedding.
“That type of example, you’re dealing with discrimination occurring between private parties,” Lee said. “This deals with retaliatory action by government against individuals. It is that type of action that we’re concerned about here.”
Yet, that doesn’t appear to have quelled the fears of some Republicans, including Speaker John Boehner.
Bill Flores, R-Texas, chairman of the Republican Study Committee, said he was “working with House leadership” on bringing the bill to a vote, but Boehner’s office would not yet confirm their support for the legislation, instead pointing The Daily Signal to a statement made earlier today.
The Supreme Court’s decision on marriage raises a lot of other questions. And a number of members have concerns about issues that it raises and how they might be addressed. But no decision has been made on how best to address these.
Flores and his conservative colleagues vowed to work with Boehner and other Republicans to “get it right” and make sure they “have everybody on board,” perhaps to avoid “another Indiana.”
If they are able to reach a consensus and pass the bill in both houses, it will go to President Obama, who has been silent on the matter.
When asked whether he thinks they’ll have the support of the president, Flores pointed to a statement made by Obama after the Supreme Court’s gay marriage decision, where he said:
On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision—which applies only to civil marriages—changes that.
“I think all of us are taking his word on that issue,” Flores said.