Two weeks ago, in a usurpation of the democratic process on par with Roe v. Wade, the Supreme Court got marriage and the Constitution wrong. Its decision in Obergefell v. Hodges redefined marriage for the entire country. Nothing in the Constitution gives unelected judges the power to do so.
But the court did it anyway, and now we need to find a way to protect civil harmony and avoid another divisive culture war. So we need to limit the damage of this ruling by preventing government bureaucrats from punishing those who disagree with it.
Defending freedom of conscience will be no easy task, but one of the first steps Congress should take is passing the First Amendment Defense Act (FADA) introduced recently by Sen. Mike Lee, R-Utah, and Rep. Raul Labrador, R-Idaho.
FADA is a common sense policy. It would ensure that no federal agency will ever revoke non-profit tax-exempt status or deny grants, contracts, accreditation, or licenses to individuals or institutions for following their faiths’ teachings about the nature of marriage as a union between a man and a woman.
It’s a sad state of affairs that this guarantee needs to be spelled out in legislation, but here we are.
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In the oral arguments before the Supreme Court earlier this year, Justice Samuel Alito asked Solicitor General Donald Verrilli about one scenario that FADA would guard against. Alito asked whether a university or college might lose its tax-exempt status because of its conviction that marriage is the union of husband and wife. Verrilli’s response is chilling: “It’s certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.”
Accreditation was an issue for Gordon College, an evangelical school near Boston that came under fire last year for its beliefs about sex and marriage. Gordon College adheres to the Christian teaching about marriage, and its policy forbids students, faculty, and staff—gay and straight alike—from engaging in sex outside of wedlock. Last year, Gordon was investigated by its accreditors—the cartel that holds the keys to receiving federal higher education funding—because its president signed onto a letter asking for religious liberty protections in a presidential executive order dealing with sexual orientation.
Though the school prevailed in its high-stakes battle to preserve its accreditation, and thus its students’ eligibility for student loans, last year’s challenge may be merely the first of many for schools that hold fast to their beliefs about marriage.
Whether and how Congress chooses to advance legislation to defend institutions like Gordon College will speak volumes about the extent to which congressional Republicans, with majorities in the Senate and the House, are committed to the fight for religious liberty. Government must not be allowed to discriminate against people who believe what America always used to believe about marriage—that it’s the union of husband and wife. FADA is good policy that limits the government and takes nothing away from anyone.
But the politics of FADA are just as important as the policy. Far too few appreciate the grave risks to religious liberty in the wake of the Supreme Court’s ruling, and the most animated participants in the debate so far are those on the left. The best way to draw attention to this crucial issue and rally the American people is swift action designed to generate public awareness and maximize the contrast with the left’s effort to trample over freedom of conscience.
If the House passes FADA prior to the August recess, it sets up a September debate in the Senate and—potentially—even a September veto decision for President Obama. What better time to have this debate than during the month Pope Francis will be in D.C. and will likely repeat his pleas for tolerance and mutual respect? How better to show contrast between those willing to stand up for pluralism and those standing in its way—whether they be Senate Democrats filibustering FADA or the president considering a veto?
Passing FADA should be an easy call for all members of Congress. Indeed, even President Obama acknowledges the importance of the interests FADA would protect. As he stated in his remarks on the Obergefell decision, “I know that Americans of goodwill continue to hold a wide range of views on this issue. Opposition in some cases has been based on sincere and deeply held beliefs. All of us who welcome today’s news should be mindful of that fact; recognize different viewpoints; revere our deep commitment to religious freedom.”
House passage of the First Amendment Defense Act is the bare minimum acceptable out of this Congress. The sooner it happens, the better. While a vote delayed until this September or later may give conservatives a feel good moment, it would represent a lost opportunity to generate momentum on this issue over the August recess. Why delay past this month to expose the fault lines of the debate between those who understand that religious liberty is one of the principles that has made this nation great and those eager to erode it?
The House of Representatives needs to act this month on the First Amendment Defense Act. Religious liberty is too important an issue to wait.