More criticism of the First Amendment Defense Act from the right

In Newsweek, Cato's Walter Olson offers the most trenchant critique yet of the proposed First Amendment Defense Act (FADA), which is a newer and broader version of the Marriage and Religious Freedom Act introduced in 2013. The FADA would broadly protect from "discrimination" by the federal government anyone who believes for just about any reason that marriage should only be for one man and one woman (and those who oppose all non-marital sex). Olson's critique adds significantly to objections to portions of the bill from strong supporters of religious liberty like Michael McConnell, Rick Garnett, and John Inazu.

The core clause of FADA provides:

Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.

As Olson notes, the bill then broadly defines both "discriminatory action" and broadly defines "person" as federal law does to include both individuals and all kinds of for-profit and non-profit business entities-and would even exempt federal workers who don't want to process benefits and rights claims made by married same-sex couples. There are at least 1100 such benefits under federal law. (This is not even to mention the way the act might implicate the rights of the vast majority of Americans who have pre-marital, extra-marital, post-marital, and homosexual sex within or outside marriage.) Olson describes the effect:

The sum of this would be to create an extremely broad new category of anti-discrimination law-retaliatory discrimination based on a certain set of beliefs or acts-which would offer protected group status to powerful institutions as well as individuals, and afford very valuable legal leverage: recipients of federal subsidies, for example, could challenge any cutoff as motivated at least "partially" by political animus.

Astoundingly, the protection would run in one direction only: It would cover those who favor traditional definitions of marriage, while leaving those who might see merit in same-sex marriage or cohabitation or non-marital sex perfectly exposed to being fired, audited or cut off from public funds in retaliatory ways.

In real-life governance, of course, there is no reason to think that wrongful pressure on dissenters cuts only one way: Some federal employees get targeted by their bosses for leaning right, others for leaning left. Under FADA, however, only one side gets to run to court complaining of ill treatment.

This points to a constitutional problem with the bill that Olson does not discuss but that seems potentially grave. By offering government support and protection to only one set of "beliefs" (and necessarily to speech expressing those beliefs) in the debate over same-sex marriage (and the morality of sex outside such marriages), the FADA draws an explicit distinction based on viewpoint. Such distinctions are among the most disfavored ones in constitutional law because they involve government partisanship in favor of a particular set of ideas.

Speakers are constitutionally protected from government action that penalizes (or even simply denies benefits or subsidies) based on viewpoint. But even speakers whose viewpoints on a subject are beleaguered politically and culturally, as traditional marriage supporters say their ideas are, aren't entitled to government action that grants them special rights, exemptions, and protections unavailable to others with opposing viewpoints on the very same subject. The First Amendment Defense Act has the special property of assailing the thing it purports to defend.

Olson's catalogue of the problems with FADA does not end there.

There is worse to come. One can sort of imagine-even while bracing for a high volume of litigation-a law that forbade any government disparate treatment based on recipients' beliefs. But FADA also protects "acts" based on opposition to same-sex marriage.

What does that even mean? It would appear to establish legal protection for acts taken "as" federal employees, with federal money, and even acts clothed with official authority.

It's here that FADA really does seem not just to lay down a marker on behalf of future Kim Davises, but even to go much further. Relatively few government employees have marriage recordation as one of their job duties, but many of them have job duties that involve recognizing already-wed couples as married, in the handling of joint tax returns, pensions and mortgage programs, student aid programs and federal employee benefits, crime investigation and on and on. If FADA is to be taken at face value, it appears to protect a federal clerk working through a stack of survivorship benefit papers who declines to process one for a gay couple.

This points to a second potential constitutional defect that Olson doesn't analyze. By singling out same-sex couples in the way FADA does (although the drafters were clever enough to encompass objections to all non-marital sexual acts as well), the bill excuses and protects discrimination and refusals of service to them throughout their lives and in every area of law. There's now a very good argument based on federal precedents that discrimination against married same-sex couples is a form of sexual orientation or sex discrimination that is presumptively unconstitutional under the Equal Protection Clause.

Olson closes:

A serious attempt to resolve the culture wars in this area might look for ways to accommodate minority religious viewpoints without harming the operations of government or the beneficiaries of public programs. Such arrangements often involve mutual employee backup or multi door social services. . . .

But FADA as currently drafted isn't really an accommodation law. It's an our-guys-win law. It says that even if the government has set you up as the monopoly provider of some service or gatekeeper for some permission, you may use that monopoly or gatekeeper status against same-sex couples and their interests with entire impunity.

As is usually the case with Olson's work, the whole piece deserves a close read.