Jim Obergefell, the gay man who was at the center of the case challenging Ohio’s ban on same-sex marriage, testified before the House Committee on Oversight and Government Reform on Thursday against the proposed First Amendment Defense Act (FADA). FADA, as written, would prevent the federal government from taking any retaliatory action against an individual or business who wishes to refuse goods or services to people who are LGBT, in a same-sex marriage, or engage in “extramarital relations.”
Obergefell, who fought to have his Maryland marriage recognized by the state of Ohio following his partner John’s death so he could be listed on the death certificate, shared his personal story with the committee and the struggle to have his marriage recognized as equal under the law.
“As important as it is that same-sex couples like John and I have the ability to obtain a civil marriage license in any state in the country, it is also critically important that this constitutional right is not undermined by proposals, like this legislation, that would subject loving couples like me and John, and other LGBT people to discrimination,” Obergefell said in his testimony before the committee. “…I understand that the proponents of this legislation argue that it is necessary to protect churches, clergy and others who oppose marriage equality for religious reasons. But the First Amendment is already clear on this point. Since the founding of this country, no church or member of the clergy has been forced to marry any couple if doing so would violate their religious teachings. That has not changed since same-sex couples won the freedom to marry.”
Obergefell was joined by former U.S. Rep. Barney Frank (D-Mass.), as well as Katherine Franke, a professor of law and director of the Center for Gender and Sexuality Law at Columbia University School of Law, in arguing that the legislation’s language is overly broad in the religious accommodations it provides to people with personally held religious beliefs opposing same-sex marriage or extramarital sex. Additionally, they say, it allows those who engage in discrimination on a regular basis to continue receiving taxpayer dollars. Franke also argued that FADA violates the First Amendment’s Establishment Clause by prioritizing certain sets of religious beliefs — namely, those opposing LGBT rights — over others.
Supporters of the legislation, including Alliance Defending Freedom, U.S. Rep. Raul Labrador (R-Idaho), the sponsor of the House version of FADA, and U.S. Sen. Mike Lee (R-Utah) who has introduced a similar bill in the Senate, argue that the legislation is necessary to protect those who oppose same-sex marriage. They claim those people’s First Amendment rights are under attack and that some may even risk losing their livelihoods for expressing their sincerely held religious beliefs. One of the other witnesses testifying in favor of the bill was former Atlanta Fire Chief Kelvin Cochran, who was dismissed after a book he wrote about his religious beliefs was published, in which he called homosexuality “vile.” Even though the FADA bill would not have prevented Cochran from losing his job, Republicans on the committee frequently referenced his testimony as a way to gain sympathy for Cochran and justify their support for the bill.
FADA defines “discriminatory action” — which the federal government would be prohibited from engaging in should the bill pass — as denying certain tax exemptions, federal grants, contracts, loans, license, certification or accreditation against individuals, companies or other entities that express these views. The bill would allow those individuals and businesses who are retaliated against for their personal opposition to same-sex marriage or particular sexual mores to pursue legal action against the government. Additionally, if a person denied service were to sue them, they would be able to cite FADA as a defense in court.
Del. Eleanor Holmes Norton (D-D.C.) objected to language in a rewritten version of the bill — released by Republicans but not yet introduced — that would make the bill’s provisions apply to the District of Columbia by proclaiming it to be part of the federal government. Norton, a former chair of the Equal Employment Opportunity Commission (EEOC), not only blasted the legislation for undermining much of the power that the EEOC has in reviewing alleged instances of discrimination, but also in undermining the District’s own laws and the Home Rule Act, which allows the District to govern its own affairs (albeit with a 30-day congressional review period for all legislation).
“Republicans went out of their way to rewrite this bill, which uses religion and personal scruples to turn the District’s anti-discrimination law on its head,” Norton said in a statement following the hearing. “We are proud of D.C.’s local LGBTQ laws that go above and beyond federal laws to ensure no resident endures discrimination in the private and public sectors. FADA tramples over our laws in order to promote discrimination. If House Republicans bring this bigotry to the floor and pass it, I am optimistic that we can stop it in the Senate.”
Some LGBT advocates and allies, including U.S. Reps. Carolyn Maloney (D-N.Y.) and Bonnie Watson Coleman (D-N.J.) during their allotted time for questioning witnesses, blasted the Republican majority on the committee for holding the hearing on the one-month anniversary of the mass shooting at Pulse nightclub in Orlando, which claimed the lives of 49 people, most of them members of the LGBT community. Prior to the hearing, more than 70 national and state groups signed a letter to Chairman Jason Chaffetz (R-Utah) asking him to cancel Tuesday’s hearing, which they argue was poorly timed given the restrictions that the bill seeks to impose on LGBT people.
“The misleadingly named First Amendment Defense Act has nothing to do with the First Amendment and everything to do with sanctioning taxpayer-funded discrimination against LGBTQ people,” David Stacy, government affairs director for the Human Rights Campaign, said of his organization’s opposition to the bill. “Enough is enough. It’s far past time to stop the legislative attacks on LGBTQ people and their families.”
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