Heed the lesson learned about FADAs in the states: discrimination in the name of religion is a losing proposition.
In the last few years, a number of state legislatures have considered legislation that would allow religious beliefs about marriage and sex to justify discrimination. These measures are often deceptively named the First Amendment Defense Act or FADA.
State FADAs have faced swift and fierce backlash—individuals, businesses, faith leaders, politicians, and even other countries have all opposed them because they allow discrimination in the name of religion that would harm our neighbors.
Mississippi FADA: Challenged In Court
Mississippi is the only state to successfully enact a FADA. Mississippi HB 1523 allowed a broad range of individuals, corporations, healthcare providers, and nonprofit organizations—including those that receive taxpayer funding to perform social services—to refuse to provide goods and services to many individuals and their families, including same-sex couples, single mothers, divorcees, anyone who has sex outside of marriage, and transgender individuals.
In the hours after Mississippi Governor Phil Bryant signed HB 1523 into law, politicians, academics, celebrities, writers, companies, and other countries condemned the action. Some even called for travel bans and boycotts. President Obama spoke out against the bill stating that it was “wrong and should be overturned,” and three federal agencies announced they were reviewing the law.
Civil rights groups and individuals who faced harm under the law sued to stop its implementation. Minutes before it was about to go into effect, a federal judge blocked the law because it violated the First and Fourteenth Amendments to the U.S. Constitution. Despite hesitation from the Mississippi Attorney General, Governor Bryant appealed this order. The US Court of Appeals for the Fifth Circuit heard arguments in the case in April 2017, then reversed the lower court's decision to block the law in June, paving the way for HB 1523 to become law in October. In January 2018, the US Supreme Court refused to hear a challenge to the law, though Americans United and other advocates for religious freedom vow to keep fighting in the courts.
Georgia FADA: Vetoed
The Georgia legislature has repeatedly tried to enact “religious freedom” legislation. In 2015, as the legislature was considering a state RFRA bill, the bill’s supporters denied that it could be used to discriminate. Yet, after a non-discrimination provision was added to the legislation, supporters pulled the bill from consideration, revealing their true motives. Indeed, one proponent explained that adding a non-discrimination provision would “gut this bill.”
In 2016, the legislature again took up several “religious freedom bills.” After a complicated, convoluted history, the legislature adopted HB 757, a bill that combined parts of some bills with other provisions dropped in at the last minute—including harmful FADA language that would have sanctioned taxpayer-funded discrimination.
More than 500 businesses joined a coalition to oppose the bill, and faith leaders also expressed their opposition. Ultimately, Governor Nathan Deal vetoed the bill, explaining : “I do not think we have to discriminate against anyone to protect the faith-based community in Georgia of which my family and I are a part of for all of our lives.”
After vetoing the bill Governor Deal said he does not regret his decision, and that the uproar over recent bills in North Carolina and Mississippi should give legislators seeking to pass "religious liberty" bills second thoughts.
Virginia FADA: Vetoed
Like the Georgia bill, Virginia SB 41 had a long and winding path. It morphed from a bill focused on allowing government employees to refuse to solemnize marriages based on religious beliefs to a broad FADA that would have permitted widespread discrimination in the Commonwealth. The bill’s sponsor explained that he introduced this legislation for his constituents who supported the ban on marriage for same-sex couples.
Even before the legislative session officially began, Governor Terry McAuliffe indicated that he would veto this harmful legislation. Governor McAuliffe kept his word and vetoed the bill, explaining:
Although couched as a “religious freedom” bill, this legislation is nothing more than an attempt to stigmatize . . . styled in a manner that prefers one religious viewpoint—that marriage can only validly exist between a man and a woman—over all other viewpoints. Such a dynamic is not only unconstitutional, it equates to discrimination under the guise of religious freedom.
Missouri FADA: Filibuster & Failure
Missouri’s FADA, SJR 39, actually took the drastic step of calling for an amendment to the state constitution to permit discrimination. The resolution generated controversy at every step in the legislative process.
When SJR 39 reached the Senate floor, eight state senators launched a nearly 40-hour-long filibuster to block the measure from a vote.
Despite these valiant efforts, SJR 39 eventually passed the Senate. The filibuster, however, had garnered national attention and spurred greater opposition ranging from members of the public to Missouri-based and international businesses including Google Fiber, Dow, MasterCard, Monsanto, Nestle Purina, Pfizer, Marriott, Square, the Kansas City Chamber of Commerce, Salesforce, the St. Louis Sports Commission, and Washington University in St. Louis.
A think tank based at Columbia Law School, Public Rights / Private Conscience, released a letter opposing SJR 39. The group, which includes a number of Missouri law professors, asserted that the overly broad amendment would conflict with the First Amendment and encourage discrimination.
After the House Emerging Issues Committee heard public testimony during a hearing that spanned over four hours and went late into the night, the Committee postponed a vote on the resolution, reportedly due to a lack of support. Following emotional testimony from many committee members, a vote was finally taken that resulted in a 6-6 tie and SJR 39 failed to advance.