Battle over “First Amendment Defense Act” looms.

President Trump is no stranger to pushing buttons.  Anyone that has read “The Art of the Deal” knows that he sees himself as the negotiator willing to do what it takes to win the battles he chooses to fight.  To those ends, his first few weeks in office have been entertaining if nothing else. The trend continues. As far back as September 22, 2016 Trump announced his intentions to sign the First Amendment Defense Act (FADA) into law to “protect the deeply held religious beliefs of Catholics and the beliefs of Americans of all faiths. The Little Sisters of the Poor, or any religious order for that matter, will always have their religious liberty protected.”[1]

Ostensibly the “FADA would prohibit the federal government from taking ‘discriminatory action’ against any business or person that discriminates against LGBTQ people. The act distinctly aims to protect the right of all entities to refuse service to LGBTQ people based on two sets of beliefs ‘(1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.”[2] On its face, however, the bill simply states that the federal government is prohibited from taking discriminatory action “against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.”[3] In other words, depending upon the side you fall, this bill is either a sword to strike out at LGBTQ people, or a shield to protect certain religious people from government action that would compel them to act against their beliefs.

Needless to say, this is another topic that raises the hackles of the partisans on both sides of the isle and plays strong with the polarized bases.  Jeff Sessions, President Trump’s nominee for Attorney General and co-author of FADA, has had his confirmation delayed by Democrats at least partially for his sponsorship and support for FADA.[4] Regardless, this debate started back during oral arguments in Obergfell[5] when the solicitor general admitted that if a right of same sex marriage were created (as it now has been) that religious institution and schools could lose their tax-exempt status. As Newton’s Third Law states, for every action there is an equal and opposite reaction.


—  Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law and land surveying in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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[5] See: Obergfell v. Hodges