"FADA" Knows Best

June 26 marks the first anniversary of Obergefell v. Hodgesin which the Supreme Court decided that the Constitution requires the recognition of same-sex marriage. The decision's implications remain as uncertain and controversial today as they were one year ago.

By: Matthew J. Franck

The Supreme Court’s decision in Obergefell v. Hodges in June 2015 redefined the meaning of marriage in American law. But many Americans remain opposed to the Court’s imposition of same-sex marriage, through a ruling that presumed to change the meaning of the Constitution as well. The reasonable belief that the true meaning of marriage is its traditional meaning—the conjugal union of a man and a woman—can be expected to persist among millions of our fellow citizens. In part, this is because that view is also supported by their religious faith, though moral convictions on the subject can be strongly held for non-religious reasons, too.

And so Obergefell has cast a shadow over freedom of conscience since the decision a year ago. People who sincerely hold, on religious or moral grounds, that marriage can only be between a man and a woman have a reasonable fear that they may be compelled to betray their consciences or suffer grave consequences. Some people have already experienced this as a reality in their lives—people such as Chief Kelvin Cochran of the Atlanta Fire Department, Barronelle Stutzman of Arlene’s Flowers in Washington state, and others.   

Hence members of Congress concerned about religious freedom have introduced the First Amendment Defense Act (FADA). This bill, introduced by Senator Mike Lee as S. 1598 in the Senate, and by Rep. Raul Labrador as H.R. 2802 in the House, would prevent the federal government from discriminating against those who act on a sincerely held and reasonable view of marriage. It is vitally important legislation. In its latest version, FADA is “viewpoint neutral,” equally protecting persons who believe marriage is the union of two persons of the opposite sex or two of the same sex. Yet, it is clear that only one of those opinions is under active threat today. The other has been endorsed by the Supreme Court.   

The justices who wrote in Obergefell anticipated the problems we now confront. Three of the four dissenters explicitly mentioned the ruling’s dire consequences for religious freedom, and noted that in the legislative arena, changes in the law could include accommodations of conscience rights. After a judicial decree, however, it could be said to become still more important for legislatures to enact measures “codifying protections for religious practice” (in Justice Thomas’s words) in order to avoid the opening of what Justice Alito called “bitter and lasting wounds” in American society.   

Justice Kennedy, for the majority, spoke of people’s continued freedom to believe and to express a contrary view of marriage. But did he rule in or rule out a freedom to act on the view contrary to the ruling he announced?  Was his description of religious freedom a floor or a ceiling?   

Justice Kennedy spoke elsewhere in his opinion of the “decent and honorable religious or philosophical” principles that undergird what people believe about conjugal marriage, and he said the Court’s should not “disparage” such views. He did not call defenders of traditional marriage bigots whose views deserve no respect, like people who once opposed interracial marriage. He treated them as reasonable people who should not be considered outsiders. Thus the answer to our question is that Obergefell does not foreclose or cast doubt on efforts to accommodate the fullest freedom of conscience.   

The aftermath of another controversial case decided by the Supreme Court should be our model today. After Roe v. Wade, Congress passed the Church and Weldon Amendments, which honored the consciences of everyone who might otherwise be coerced into facilitating abortions. The proposed First Amendment Defense Act is an appropriate, indeed urgent, response to the threats now looming against the rights of conscience regarding marriage. It is in keeping with America’s best traditions of honoring freedom of religion and the right of dissent.   

The scale of the looming threat is great. People from multiple faith communities, and persons of no religion at all, have sincerely held, conscientious views on marriage that they cannot betray without compromising who they are. FADA would ensure that the federal government does not impose a self-destructive choice on people.   

A few words are in order about what FADA is not. It is not a “license to discriminate” against others because of who they are. The act says nothing about identity, dignity, or orientation. It protects people’s core convictions about marriage as an institution, not any attitudes they may have about LGBT persons as persons.   

FADA does not get the federal government into the business of judging people’s relationships. To the contrary, it gets the federal government out of taking sides on the contested issue of whose view of marriage or sexual relations is the preferred one, or the one everyone must conform to.   

FADA is in no way a violation of the Constitution’s equal protection principle. Even if we were to grant that it allows one person to “discriminate against” another, that is conduct entirely in the private sphere of civil society, not the state action that the Constitution reaches. Indeed, by clearing space for opposing viewpoints on marriage to be equally protected in the law, FADA is a significant step for the equal protection of the laws, not against it.   

Finally, FADA is not an unconstitutional “establishment of religion.”  It gives no preferred standing to any religious viewpoint over another, sweeping across all faith communities, and it honors non-religious “moral convictions” as well. Indeed, in its amended form just introduced, it is now completely viewpoint-neutral, satisfying all reasonable concerns about its open, fair-minded, equal treatment of all.   

As a vital “after Obergefell” measure, the First Amendment Defense Act prevents no one from getting married, or from celebrating a joyous wedding day. It demeans no one and protects people who otherwise might have to choose between their conscience and their livelihood, or their education, or their freedom. The passage of FADA would be a great step toward securing the space for people of good will and differing views to dissent, and to disagree respectfully. It would preserve a free society where no one’s decent and honorable views are under threat of being stamped out.   

In a time when pessimism is on the increase regarding our “culture wars,” FADA is a significant step in the direction of peace and civility. The passage of FADA would be a sign that in the upheavals that have accompanied the legal redefinition of marriage by the Supreme Court, the victors in Obergefell are committed not to demonizing those who disagree with it, but instead to honoring their freedom of conscience.   

Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute and a visiting lecturer in Politics at Princeton University.

This essay is adapted from the author’s oral testimony in support of FADA before the House Oversight and Government Reform Committee on July 12, 2016. The opinions expressed here are his own and not those of the Witherspoon Institute. It was published in this form on July 20, 2016 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.

Permanent Link: https://www.religiousfreedominstitute.org/cornerstone/2016/7/30/fada-knows-best