FADA would prohibit the federal government from taking "discriminatory action" against any business or person that discriminates against LGBTQ people. The act distinctly aims to protect the right of all entities to refuse service to LGBTQ people based on two sets of beliefs: "(1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage."
Ironically, the language of the bill positions the right to discriminate against one class of Americans as a "first amendment" right, and bans the government from taking any form of action to curb such discrimination—including withholding federal funds from institutions that discriminate. FADA allows individuals and businesses to sue the federal government for interfering in their right to discriminate against LGBTQ people and would mandate the Attorney General [Sessions?] defend the businesses.
On December 9, Sen. Lee's spokesperson, Conn Carroll, told Buzzfeed the election of Trump had cleared a path for the passage of FADA.
"Hopefully November's results will give us the momentum we need to get this done next year," Carroll said. "We do plan to reintroduce FADA next Congress and we welcome Trump's positive words about the bill."
"During oral arguments in Obergfell, President Obama's solicitor general admitted that if a right to same-sex marriage were created, religious institutions, including many Catholic schools, could have their tax exempt status revoked by the IRS," Carroll told NBC Out on Wednesday. "The First Amendment Defense Act was created to make sure that does not happen."
But while Carroll claims "FADA in no way undermines federal or state civil rights laws," it would take away the government's recourse in terms of punishing businesses, institutions or individuals who break civil rights law by discriminating against LGBTQ people.
"If Congress were to pass the federal FADA as currently written, and the next president were to sign it into law, I'm confident heads would spin at how fast the constitutional challenges would fly into court."
Jennifer Pizer, Law and Policy Director at Lambda Legal, told NBC Out FADA "invites widespread, devastating discrimination against LGBT people" and is a deeply unconstitutional bill.
"This proposed new law violates both Equal Protection and the Establishment Clause by elevating one set of religious beliefs above all others," Pizer said, "And by targeting LGBT Americans as a group, contrary to settled constitutional law."
Pizer warned that the bill's language also left room for individuals and businesses to discriminate against unwed heterosexual couples and single mothers, because of the clause stating that "sexual relations are properly reserved" to marriage between a man and a woman.
"There cannot be even one iota of doubt that this bill endorses one set of religious beliefs above others, and targets people in same-sex relationships, married or not, as well as unmarried heterosexual couples who live together," Pizer said. "It's an unconstitutional effort to turn the clock back to a time when unmarried mothers had to hide in shame, and LGBT people had to hide, period."
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