First Amendment Defense Act

Filed under: Marriage

114th Congress: H.R. 2802; S. 1598

The Problem

Freedom of religion is fundamental and protected by the Constitution. However, this right does not diminish other fundamental constitutional rights, including the right to privacy, liberty, and due process—all of which, the Supreme Court has concluded, protect lesbian, gay, bisexual, transgender, and queer (LGBTQ) people. Nevertheless, there have been recent efforts by some members of Congress to create laws that not only privilege one set of beliefs above others—an opposition to same-sex marriage or extramarital sex—but also create a dangerous system of state-sanctioned discrimination designed to undermine existing federal protections for LGBTQ people. 

What is the First Amendment Defense Act?

The First Amendment Defense Act (FADA) would legalize state-sanctioned discrimination. On its face, this bill would prohibit the federal government from “discriminating” against someone because of their belief that marriage should only be recognized as the union of one man and one woman or that sexual relations are properly reserved to such a marriage. In reality, this bill would undermine the government’s ability to enforce the federal protections that exist to protect LGBTQ people and their families. Under FADA, individuals, many businesses, and non-profit organizations—even those using taxpayer dollars contracting with the federal government—could openly violate non-discrimination policies or refuse to serve same-sex couples. As long as they claimed their actions are based on their belief about marriage, the government would have little recourse. 

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 11246 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 non-profit business or organization with a record of discriminatory employment practices against LGBTQ people 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 (HUD) 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.  

What is the Current the Status of the Bill?

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

In the 114th Congress, FADA was introduced in the House of Representatives 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 did not receive a vote.

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

Last updated: November 6, 2017