Arkansas in 2015 passed a law, with Gov. Asa Hutchinson’s support, to provide legal protection for discrimination against gay people. The trick was to provide a “religious” pretext for unequal treatment in employment, housing and public services.
The gullible saw this as some sort of compromise. It wasn’t, though it was perhaps marginally less offensive than the bill as originally introduced. The end result was a religious preference for bigots of a certain religious background. (Some religions don’t believe in discriminating against gay people.) It gave state protection to discrimination.
Now Congress is up to the same game and three of the four House Republicans from Arkansas, not yet including Rep. French Hill of Little Rock, have signed on as co-sponsors.
Think Progress outlines what’s underway in Congress. The bill comes up in committee today.
By its own explicit terms, FADA grants special rights to individuals with a “religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” In that sense, it closely resembles a Mississippi law that a federal judge halted earlier this month, in part because it extends special treatment to individuals with anti-LGBT religious beliefs.
Under, the core provision of FADA “the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with” a religious objection to marriage equality or a faith-based belief that sexual relations must be reserved to a marriage between people of the opposite sex. Subsequent provisions define the term “discriminatory action” to include a broad range of sanctions against religious objectors who themselves engage in discrimination. The government cannot deny tax subsidies to religious objectors who discriminate against LGBT people, or deny them a grant or benefit, or, under a catch-all provision, “otherwise discriminate against such person.”
FADA, in other words, requires the federal government to actively subsidize anti-LGBT individuals, at least if those individuals would otherwise qualify for a subsidy if not for their opposition to marriage equality. Additionally, because of the provision protecting religious objectors who believe that “sexual relations are properly reserved to” opposite sex marriages, FADA also grants a broad array of special rights to people who target many straight couples.
I kind of like the idea of a hotel owner demanding a marriage license before renting a room to a heterosexual couple. Or perhaps denying service in the Capitol cafeteria to a known tomcat on account of the cook’s deep religious objection to adultery.
The courts, by the way, have been down this path many times, particularly during the civil rights era. You can’t declare a First Amendment right, based on religion, to discriminate. A famous case involved Gov. Asa Hutchinson’s alma mater:
Bob Jones University claimed that it should continue to receive tax subsidies despite its religiously motivated policy that “students who date outside of their own race will be expelled.” The Supreme Court rejected this claim as well, explaining that “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”
The government has no less overriding interest in eradicating discrimination based on sexual orientation. The marriage case made that clear.
UPDATE: Not that it matters, but Democrats demonstrated today that the bill provides a means for legal discrimination in employment and anything else. Also: Both Sens. Tom Cotton and John Boozman are sponsors on similar Senate legislation. Naturally.