Misconceptions weigh down religious liberty bill

WASHINGTON—Republicans and Democrats agree on the need for religious liberty protections, but not on the First Amendment Defense Act (FADA).

After stalling in the halls of Congress for more than a year, FADA had its first public hearing today in the House Oversight and Government Reform Committee. Introduced shortly before the Supreme Court legalized same-sex marriage in Obergefell v. Hodges, FADA prohibits federal government discrimination based on marriage beliefs—including in tax treatment, accreditation, and federal licensing.

Lawmakers on both sides of the aisle unequivocally acknowledged freedom of religion is a core American value in need of protection but refused to agree on what FADA, if enacted, would actually protect.

“Some may suggest that FADA would give private businesses a license to violate anti-discrimination laws with impunity. This is just not so,” said Sen. Mike Lee, R-Utah, FADA’s Senate sponsor. “The bill does not preempt, negate, or alter any anti-discrimination measures or civil-rights laws, state or federal.”

Rep. Raúl Labrador, R-Idaho, who introduced the bill in the House, also insisted lawmakers have a gross misunderstanding of the extent and purpose of FADA.

“We have gone through a painstaking time and effort to make sure this bill takes nothing away from any individual,” Labrador said. “Freedom of religion is not only the right to believe in private, but is also the right to publicly exercise religion without fear of government interference. … We live in an age where strident voices call for tolerance but only for individuals with whom they agree.”

Republicans invited former Atlanta Fire Chief Kelvin Cochrane to share his story of how he lost his job because of a self-published men’s devotional book that contained a biblical view on marriage and sexuality. Cochrane, who worked as a firefighter for 34 years and was recognized as fire chief of the year in 2012, received a 30-day suspension once city officials found out about his book. Mayor Kasim Reed then fired Cochrane in January 2015, claiming his beliefs caused a propensity toward hate, even though a review of his case failed to find any instances of discrimination.

“A person does not have to compromise their conscience to work for the government, I’ve lived that way for the last 34 years,” Cochrane told me. “It’s only until recently, given the Supreme Court’s decision on marriage, that there is this bold assertion that you don’t get to say what you believe if it differs from the Supreme Court’s decision. People are afraid to say what they believe about marriage because of what happened to me.”

Cochrane said Atlanta’s city council told him it’s fine to have a set of beliefs, but government workers had to check their beliefs at the door.

Rep. Jim Jordan, R-Ohio, rushed to Cochrane’s defense.

“That is exactly why we have the First Amendment—you do not have to check your beliefs. That’s what this country is about,” he said. “You have to check your beliefs at the door? Are you kidding me? That’s why this bill is so important.”

FADA provides protections specifically against the federal government. In Cochrane’s case, FADA would not have protected him against discrimination as an employee of the city of Atlanta. But it would have shielded him while he served as the U.S. fire administrator in 2009.

Rep. Bonnie Watson-Coleman, D-N.J., chastised Cochrane, asking why he was at a hearing about a law that did not pertain to him.

Katherine Franke, a professor at the Columbia School of Law, agreed with Republicans that what happened to Cochrane was wrong, but said FADA is dangerous because it elevates one set of beliefs above another.

“No reasonable scholar of the First Amendment would hold the view that religious liberty rights are always absolute,” she said. “Our Constitution adamantly protects religious belief, but it does not absolutely protect every single act one takes in the service of that belief.”

Over the last few months, Labrador and Lee have revised FADA to address those concerns. The bill now not only protects individuals and institutions with traditional views but any sincerely held belief on marriage and sexuality.

Labrador expressed disappointment with opponents of his bill, saying it’s clear they have not even read it for themselves.

Lee agreed, saying FADA is narrowly focused and provides simple and common-sense protections.

“What an individual or organization believes about marriage is not—and should never be—any of the government’s business,” Lee said. “And the First Amendment Defense Act simply ensures that this will always be true in America.”