How the First Amendment Defense Act Would Legalize LGBT Discrimination

LGBT rights are in danger if proposed First Amendment Defense Act passes.

Vice President-elect Mike Pence (who, while governor of Indiana, passed a similar bill) also supports FADA, as do several of Trump’s cabinet picks.

Others within Trump’s inner circle also support the bill. In response to recent questioning by Senator Al Franken of Minnesota, Attorney General nominee Jeff Sessions indicated his support for the bill. “I supported [FADA] because I believe that we can, and should, protect the rights of all citizens–including LGBT individuals and those with traditional views of marriage. I do not see freedom as a zero-sum game.”

Press Secretary Sean Spicer said earlier this week that he did not know whether a 2014 executive order signed in 2014 by President Obama prohibiting anti-LGBTQ discrimination among federal contractors would remain in place.

FADA would eliminate federal remedies from those being discriminated against. At the same time, it would allow those doing the discrimination to sue the federal government for interfering in their “right” to discriminate against LGBTQ people. It would also require that the US Attorney General defend the businesses from any discrimination suits.

The bill could not prohibit states or private companies from penalizing discriminatory practices. That means in the 22 states and the District of Columbia that prohibit discrimination on the basis of sexual orientation or gender identity, individuals being discriminated against would still have recourse in state court.

However, without affirmative action on the part of states or companies, those in the LGBTQ community who are discriminated against would have little recourse.

As Senator Cruz said, “the prospects for protecting religious freedom are brighter now than they have been in a long time.” But as those prospects brighten, the hard-fought rights of the gay community dim.

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