Congress took the administration at its word and today introduced the First Amendment Defense Act (FADA) to guarantee such a scenario never becomes "an issue."
This bill, introduced by Sen. Mike Lee, R-Utah, and Rep. Raul Labrador, R-Idaho, is good policy in part because it is so simple. It says that the federal government cannot discriminate against people and institutions that speak and act according to their belief that marriage is a union of one man and one woman. That's it in a nutshell.
President Obama should support the First Amendment Defense Act given his previous stand in favor of male-female marriage, made as late as 2012, and his more recent remarks: "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."
Accordingly, government should respect those who stand for marriage and the First Amendment Defense Act would do so by specifically prohibiting bureaucrats from retaliating against individuals, family businesses, charities and schools because they refuse to change their deeply held views on what marriage is, no matter what the Supreme Court or politicians may say about it in the coming days.
Threats to Religious People, Institutions Are Here and Multiplying
Tax Status
Policy should prohibit the government from making non-profit tax status contingent on a group's beliefs about marriage. Non-profit tax status isn't a political gift reserved for those groups who win the favor of a particular government administration. No group should be denied or lose non-profit tax status because it believes that marriage is the union of a man and a woman or that sexual relations are reserved for marriage.
It is not only religious schools that are at risk of losing their non-profit tax status if marriage is redefined to include same-sex couples.
Already California state judges are being forced to cut all ties with the Boy Scouts in California because of their policies on sexual orientation and it is easy to foresee the next shoe to drop. In 2013, the California Legislature was poised to pass a bill that would have stripped tax-exempt status from groups such as the Boy Scouts because of their lived-out views on sexual relations. Though it had passed the state Senate, 27–9, the bill was tabled after significant criticism including from the liberal Los Angeles Times.
Government Contracts, Grants, Employment and Licensing
All Americans should be free to compete for contracts, licenses, grants and other funding from the government without penalty because of their reasonable beliefs about morally contentious issues.
The federal government should not seek to enforce monolithic liberal secularism by using the tax code and government contracting to reshape civil society on controversial moral issues that have nothing to do with the federal contracts or tax policies at stake.
And yet, in July 2014, Obama issued an executive order barring federal contractors from what it describes as "discrimination" on the basis of sexual orientation and gender identity. The order contains extremely narrow accommodations of religious freedom and no exceptions for contractors who conscientiously judge sexual conduct to be relevant to their mission, purpose or bathroom policies.
Such radical changes in policy in effect exclude legions of taxpayers from being eligible for federal contracts funded with their own tax dollars because they hold conscientious beliefs about sexuality and biology that run counter to the administration's.
Similar threats to religious freedom and conscience in licensing and contracts are mounting at the state level.
Facing coercion by state governments to place children with same-sex couples, faith-based adoption agencies in Massachusetts, Illinois and Washington, D.C., have been forced to end foster care and adoption services rather than abandon their belief that children do best with a married mother and father.
In those states, refusing to place children in same-sex households would have meant forfeiting necessary contracts with the state government for foster care services or, in some situations, even losing state licenses to place any children for adoption.
No one should be penalized by the government in these ways, and the First Amendment Defense Act would prevent the federal government from doing so.
Congress Should Prevent Government Discrimination
Government must protect the rights of Americans and the associations they form—be they religious institutions, clubs or family businesses—to speak and act in the public square in accordance with their beliefs. Congress has an opportunity to protect religious liberty and the rights of conscience at the federal level.
The First Amendment Defense Act follows our nation's long tradition of protecting the natural right to the free exercise of religion and freedom of association as enshrined in our Constitution. It ensures that the federal government respects the rights of individuals, businesses and organizations that wish to act in accordance with their beliefs about marriage.
And there need not be any losers as a result. Protecting religious liberty and the rights of conscience does not infringe on anyone's sexual freedoms. The government will remain free to provide services to everyone who seeks them in any way it sees fit. It simply cannot shun or blackball religious people and institutions in the process.
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Ryan T. Anderson (@RyanT_Anderson)researches and writes about marriage and religious liberty as the William E. Simon Fellow at The Heritage Foundation. He also focuses on justice and moral principles in economic thought, health care and education, and has expertise in bioethics and natural law theory.
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