Do you want it to be legal for your boss to fire you for having sex before marriage? Or how about for being a woman married to another woman? No? Then you might want to call your congresspeople and tell them that you are definitely not okay with the First Amendment Defense Act (FADA), the latest attempt to legislate how we live and love behind closed doors.
Just over a year after the U.S. Supreme Court’s landmark decision to make gay marriage legal, on Tuesday, the House Committee on Oversight and Government Reform held a hearing on the act, which aims to make it legal for an employer to discriminate on the basis of his or her own religious beliefs. It would also give special protections to those who believe 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” by ensuring that those who discriminate cannot be punished by the federal government in any way for their behavior. Gross.
The legislation, Introduced by Rep. Raul Labrador, a Republican from Idaho, would give any person or business the ability to fire you for seemingly arbitrary reasons, from when you have sex to how you become a parent to your spouse’s gender. If your personal decisions somehow “threaten” or “intimidate” your employer’s religious beliefs, you could be shit out of luck.
The legislation is now moving ahead in Congress, and not surprisingly, Republican presidential nominee and all around terrifying human being Donald Trump has already said that, if elected, he would sign the bill if it passed Congress.
Trump aside, the act has garnered immediate attention for the way it threatens the top court’s ruling in the case of Obergefell v. Hodges—the decision that legalized same-sex marriage on the federal level. But as the folks at NARAL Pro-Choice America pointed out to me, it’s not only the LGBTQ community that potentially stands to be impacted by this legislation—single people of all gender identities and sexual orientations opting to get it on in the privacy of their own homes stand to suffer, too.
So what exactly is this bill, how’d it come to be, and what does it really mean for you and your sex life? Allow me to break it down.
How does this legislation not violate my First Amendment rights?
The court has always made it clear that you can believe whatever you want to believe, and the First Amendment has your back—but you can’t just do whatever you want in the name of religion, especially if it violates other federal laws and potentially impacts others in a detrimental way. This is where FADA starts to get interesting, with supporters claiming that their First Amendment rights are being violated if they can’t discriminate against people who do not hold their own religious beliefs. Basically, they think that they aren’t truly practicing their religion freely unless they can force you to either agree with them or, say, lose your job for having premarital sex.
Is this similar to all that Hobby Lobby business a few years back?
The fight over Rep. Labrador’s legislation is indeed reminiscent of the Supreme Court’s ruling in the 2014 case of Burwell v. Hobby Lobby Stores, in which the court decided that privately held, for-profit corporations could be exempted from complying with federal laws that conflict with its majority owners’ religious beliefs.
In the Hobby Lobby case, the family that owns the chain argued that, because of their Evangelical Christian beliefs, they should not have to comply with the Affordable Care Act’s federal mandate that all insurance plans must provide contraception. (Or, more specifically, because of their belief that life begins at conception, they should not have to provide their employees with insurance policies that cover contraceptive methods that might prevent a fertilized egg from implanting in the uterine lining, including both Plan B and IUDs.) In a 5-4 decision, the court ruled in favor of Hobby Lobby, saying the owners were free to practice their religion as protected by the Religious Freedom Restoration Act.
But the Religious Freedom Restoration Act is not the same as the First Amendment: It was passed by Congress in 1993 to ensure that a neutral law did not impose any kind of undue burden on a person’s religious beliefs, and it was under this law that the court came to its majority opinion on the Hobby Lobby case.
So how would FADA affect marriage equality?
Jim Obergefell, the plaintiff in last year’s marriage equality case, which led to gay marriage being legalized in all 50 states, testified at Tuesday’s hearing. He told House leaders, “I believe that the United States Congress must be better than this….It is my opinion that a hearing like we’re having today would have been much better spent in looking at how best to ensure that no one in this country is subjected to violence or discrimination based on who they are or whom they love.”
The Human Rights Campaign (HRC) went ahead and broke down all the ways FADA could cause serious harm to same-sex couples, from denying same-sex couples the spousal benefits now guaranteed to them through the Obergefell ruling to, y’know, just blatantly violating people’s civil rights.
Kaylie Hanson Long, the communications director for NARAL Pro-Choice America, also weighed in on the very real impact on the LGBTQ community, should FADA pass.
The First Amendment Defense Act writes discrimination against women and LGBTQ Americans directly into our nation's law. This proposal would make it okay for landlords who don't believe in premarital sex to refuse housing to single mothers. It would make it okay for the Kim Davises of the world to refuse to provide government services to a same-sex couple. And it would make it okay for your boss to fire you for having premarital sex if he didn't believe in it. This is not what America stands for, and it's appalling that House Republicans are working on such hateful legislation before leaving for summer recess.
If I want to talk about this at a barbeque this weekend, what’s the main takeaway here?
It’s not just employment that could be comprised for millions of Americans: FADA more or less condones discrimination at the whim of whoever is in charge, and if it were to pass, Christian universities could bar students from admission or enrollment, government offices could deny people applications for things like driver’s licenses or passports, and yes, grouchy and rude bakeries could say “No cake for you.” All because someone in a position of power isn’t down with your sex life.
With this legislation, the freedom to practice your religion seems like a one-way street. The act is based on the premise that the person doing the discriminating would be totally protected by the First Amendment. But for subordinates, the only belief they’ll be left with is that the government doesn’t really care about their beliefs.
Jen Gerson Uffalussy is a regular contributor to Fusion. She also writes about reproductive and sexual health/policy for Glamour, and television for The Guardian. She lives in Atlanta.