Lawyers Must Lead the Fight Against Anti-LGBT Legislation

April 7, 2017Articles The Legal Intelligencer

Since the 2016 election results started to become clear, anxiety and fear has grown within the country's lesbian, gay, bisexual and transgender (LGBT) ­community. The Obama administration, while not perfect, made significant strides in fighting for LGBT equality. Critically, the threat of President Obama's veto pen stood as a bulwark against anti-LGBT federal legislation.

Since the election and the changing of the administration, opponents of LGBT rights have projected confidence about enacting legislation to permit anti-LGBT discrimination as a matter of federal law. Media ­reports have signaled that one particular piece of anti-LGBT legislation, the so-called First Amendment Defense Act (FADA), is a priority of key congressional leaders and the administration.

Currently pending reintroduction in the new Congress, FADA's most recent ­iteration drew 172 co-sponsors in the House of Representatives. True to its Orwellian title, FADA involves neither the First Amendment, nor defending it. Rather than protect religious belief, FADA creates a broad license for people and businesses to discriminate against LGBT people.

FADA prohibits the federal government from taking "any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance 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."

The bill goes on to define certain specific acts the federal government may not take against same-sex marriage opponents for such beliefs: including altering tax ­treatment or disallowing certain tax ­deductions; denying or revoking federal grants, contracts, licenses, accreditation or employment; ­denying certain federal benefits; or "otherwise discriminating" against same-sex ­marriage opponents in any way—a ­sweeping term which is itself undefined.

FADA further requires its terms to be applied broadly. The bill creates a private right of action for an "actual or threatened violation" of its provisions, without requiring exhaustion of administrative remedies; provides for attorney fees; and empowers the U.S. Attorney General to seek injunctive or declaratory relief. Moreover, the federal government is defined as "each authority of any branch of the government of the United States."

So, what does this mean in practical terms? Any person or corporation could discriminate against LGBT people with impunity, as long as they cited a religious belief.

Imagine: LGBT veterans and their families could be denied medical or ­survivorship benefits; same-sex couples could be denied hospital visitations; ­government-funded adoption agencies could refuse to place children with LGBT families. Federally funded schools and universities could turn away LGBT students. Federal hate crimes protections for LGBT people could be eviscerated. Federal ­protections for LGBT rights could vanish overnight. In short, the federal government would be required by law to turn a blind eye to LGBT Americans' plight—rendered powerless to protect LGBT people from discrimination, so long as discrimination was based in "religious belief."

This isn't hyperbole. FADA's broad language is designed to maximize the ability to discriminate against LGBT ­people. FADA's sweeping language can even be read to deny key rights to unmarried heterosexual couples—by stating that no action can be taken against a person on the basis of a religious belief that sexual relations should be confined to ­marriage only. This provision could conceivably be used to deny access to contraception or family ­planning services to unmarried women.

It is seemingly of no concern to FADA's sponsors that the bill suffers from ­obvious constitutional deficiencies, flagrantly violating the Establishment Clause and denying LGBT people the equal protection of the laws. One could be forgiven for ­concluding that perhaps these infirmities are a feature, not a bug—that FADA is ­designed to provoke a test case and facilitate a sea change in jurisprudence, one that strips away LGBT rights under the guise of protecting religious liberty.

The true intent of the legislation, which is to authorize wholesale discrimination against LGBT people, is revealed in its first substantive sentence quoted above. In that sentence, FADA extends its protections to those who discriminate on the basis of moral, i.e. secular, not religious, conviction that same-sex marriage is wrong.

If FADA were a bill honestly seeking to protect religious beliefs, why would it extend such sweeping protection to ­amorphous and undefined "moral convictions" against same-sex marriage that aren't born of religious belief? The answer is simple: FADA's true purpose and inevitable effect is to ­create a broad license to discriminate against LGBT people. Its ultimate goal is to enshrine bigotry into law, hiding behind the fig leaf of religious belief and supposed moral conviction.

This reality is well known among those who diligently track anti-LGBT bigotry. Lambda Legal has called FADA "an unconstitutional effort to turn back the clock." The Human Rights campaign describes it as "legalizing state sanctioned discrimination" and "a misguided attempt to solve a problem that just does not exist." And the Southern Poverty Law Center— the nation's leading group combating hate nationwide—has sounded the alarm by noting a growing trend of similar legislative efforts across the country to permit anti-LGBT discrimination masquerading as religious freedom.

If this playbook sounds familiar, it's because it is. Throughout American history, peddlers of prejudice have regularly sought to cloak ulterior motives in the garments of religious belief. Supposed religious liberty arguments have been used to justify slavery, to deny women's rights, to justify Jim Crow laws and more. Indeed, notorious racist and former U.S. senator from Mississippi Theodore Bilbo argued in favor of anti-miscegenation laws on religious grounds in his writings, describing racial segregation as a divine gift.

Such arguments have always been wrong—the province of cynics, bigots, and civil rights opponents of all stripes. And though these arguments come to us now wearing a different face, they remain as wrong as they ever were.

Religious liberty is a treasured American freedom, among our nation's founding values. Religious freedom has been, is, and will continue to be thoroughly protected by the First Amendment, as well as other federal and state law. But in the public square, religious beliefs—no matter how sincerely held—should not invalidate the constitutional rights of LGBT people to equal protection of the laws.

Reprinted with permission from the April 7 issue of The Legal Intelligencer. (c) 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.