First Amendment Defense Act

Filed under: Marriage

What is the First Amendment Defense Act?

The First Amendment Defense Act (FADA) would legalize state sanctioned discrimination. While on its face, this bill would prohibit discrimination by the federal government based on individual beliefs about same-sex marriage, in reality, this bill would allow individuals, many businesses, and non-profit organizations—even those contracting with the federal government—to circumvent critical federal protections designed to protect LGBTQ families from harmful discrimination. 

LGBTQ people and their families continue to face discrimination across our nation.  FADA would allow individuals and businesses using taxpayer dollars to ignore the few federal policies that do exist to protect them if they claim the protections aren’t in line with their individual beliefs about marriage.  

Religious Freedom and Civil Rights Protections are Both Core American Values

FADA is a misguided attempt to solve a problem that just does not exist.  The U.S. Constitution provides strong protections for individuals and organizations to practice their religion and to freely speak about beliefs.  Nothing in federal law, including the right to receive exempt tax status, a federal grant or contract, or other federal benefit, can be denied on the basis of a sincerely held religious belief.  The federal government also has an equally strong obligation and interest in eradicating harmful discrimination.  

FADA Would Roll Back Critical Protections for LGBTQ people and Their Families

FADA would undermine core civil rights protections for LGBTQ people. For example:

  • Following the U.S. Supreme Court decisions in U.S. v. Windsor and Obergefell v. Hodges, same-sex married couples are entitled to all federal spousal benefits regardless of where they live.  Under FADA, however, individual businesses could run roughshod over the civil rights of these couples and deny them the spousal benefits they have earned and deserve.  

  • Executive Order 11,246 prohibits employment discrimination on the basis of sexual orientation and gender identity by federal contractors.  However, under FADA, the federal government would be required to continue to contract with a business with a record of discriminatory employment practices against married gays and lesbians if that employer cited their belief that same-sex marriage was wrong as the reason for the discrimination. 

  • The Department of Housing and Urban Development has also recently issued guidance that shelters receiving HUD grants must not discriminate against same-sex married couples.  An organization could cite FADA and provide their religious conviction against same-sex marriage as a reason to put a same-sex couple back on the street. 

  • Despite protections in the Fair Housing Act and strong administrative guidance from HUD, commercial landlords could be empowered to violate fair housing laws by refusing housing to a single mother or same-sex couple based on religious belief that sexual relations are reserved to different-sex married couples.

  • The Violence Against Women Act (VAWA) provides explicit protections from discrimination against LGBTQ beneficiaries.  However, under FADA, an emergency shelter receiving VAWA funds to provide services for survivors of intimate partner violence could turn away someone in a same-sex marriage because of their religious belief.

  • The 1993 Family and Medical Leave Act grants a statutory right to 12 weeks of leave for personal illness or caregiving – including caring for a spouse.  The Department of Labor has issued clear administrative guidance that these rights extend to same-sex married couples.  However, under FADA, closely held businesses or not-for-profit organizations would be allowed to discriminate by refusing to let an employee care for their sick same-sex spouse despite these clear federal protections.

  • Currently the vast majority of degree-granting institutions follow the American Psychological Association standards or those laid out by state-accreditation boards when designing psychology graduate programs, both of which reject the practice of conversion therapy.  However, under this bill Universities accepting federal funds would be required to grant degrees to professional students who insisted in engaging in conversion therapy with clients as part of their studies.

What was the Status of the Bill in the 114th Congress?

FADA was introduced in the House by Rep. Raúl Labrador (R-ID) and in the Senate by Sen. Mike Lee (R-UT) on June 17, 2015. On September 14, 2015, Sen. Lee released an updated version of FADA on his website, and on July 7, 2016, Rep. Labrador released a further revised version of FADA on his website. Although neither revision was formally introduced in Congress, a hearing was held on the Labrador revised version of the bill in the House Oversight and Government Reform Committee on July 12, 2016. The bill was not voted on in the 114th Congress. 

What is the Current the Status of the Bill?

FADA has not yet been introduced in the 115th Congress.


For more information, please contact legislation@hrc.org. Read about other Federal Legislation pertinent to the LGBTQ community here.

Last updated: December 11, 2016