First Amendment Defense Act (FADA) FAQs

What is FADA and what would it do?

The First Amendment Defense Act (FADA), S. 1598 and H.R. 2802, is a religious liberty protection bill introduced by Senator Mike Lee (R-UT) in the Senate and Representative Raul Labrador (R-ID) in the House. FADA would prevent the federal government from discriminating against individuals, associations, or businesses, such as churches and religious colleges, by denying a tax exemption, grant, contract, license, or certification because they believe marriage is a union of one man and one woman.

Why is FADA necessary?

FADA was introduced in Congress on June 17, 2015, shortly before the Supreme Court ruled in Obergefell v. Hodges that all laws defining marriage as the union of a husband and wife were unconstitutional. This ruling redefined marriage across the country and opened the floodgates for the government to discriminate against citizens who continue to live out their religious and moral convictions about marriage as they always have.

In oral arguments before the Supreme Court, Justice Samuel Alito asked Solicitor General Donald Verrilli whether a university or college might lose its nonprofit tax status if it doesn’t abandon its views on marriage as the union of husband and wife. Verrilli’s response was telling: “It’s certainly going to be an issue. I – I don’t deny that. I don’t deny that, Justice Alito. It is – it is going to be an issue.”

FADA was introduced to prevent this very scenario from happening.

Doesn’t the Religious Freedom Restoration Act (RFRA) and other State Religious Freedom Restoration Acts already protect religious liberty?

No. RFRAs provide generalized protections that require judges to engage in a balancing test when assessing religious liberty claims. The courts first determine if a government action substantially burdens religious exercise, and if so, it then assess whether the government has a compelling justification that is implemented in a way that does the least harm to religious liberty.

In contrast, FADA provides highly specific protections and limits judicial discretion, thereby taking much of the potential for mischief from activist judges out of the equation. FADA would take the debate out of the hands of the most non-democratic branch of government and put it back into the hands of the American people and their elected officials. FADA takes a surgical approach that does the balancing on the “front end” by protecting precisely the beliefs under assault in precisely the contexts where they are most threatened.

While RFRA’s general protections are vital for countering threats to religious liberty we may not foresee, FADA’s specific protections are vital for countering threats to religious liberty that are right in front of us, right now.

But isn’t the marriage debate a politically toxic issue for Republicans? Just look at what happened in Indiana.

It is true that last year the state of Indiana watered down its newly enacted RFRA law after it was hit with a coordinated surprise attack from LGBT interest groups, the media, and some members of the business community. But recently lawmakers have regained their footing on the issue. Efforts to further undermine religious liberty rights through sexual orientation and gender identity “bathroom bills” were defeated in the Indiana state house earlier this year and by a popular vote of 61% by the people of Houston. Republican members of Congress should not be afraid of “another Indiana” because Indiana, Houston, Missouri, North Carolina, Kentucky and many others, are fighting to defend religious liberty. Momentum in support of religious liberty is gaining steam across the country. Republicans should champion this issue, not run away from it.

Why should the government be involved in religious matters at all?

Freedom of religion is our very first freedom laid out in the Bill of Rights because if we are not guaranteed the natural right to speak and act in accordance with one’s own religious beliefs, all other rights are illusory. Thousands of religious organizations and millions of Americans are doing good work in our communities by running schools, colleges, charities, churches, and adoption agencies. The same faith and moral convictions that motivate organizations and individuals to seek the good for their children and their communities, has also led many to acknowledge marriage between a man and a woman as the indispensable backbone for civil society in America. Their religious liberty deserves protection, and the Constitution charges all branches of government with the duty to protect it, especially Congress.

Why did FADA’s text change and will it be changed again?

The sponsors changed the bill text to ensure it could not be mischaracterized by opponents as Indiana’s RFRA was. According to Senator Lee, the change “makes crystal clear that we are only seeking to prevent federal government discrimination against people and institutions that define marriage as a union between one man and one woman.” Outside of the regular amendment process, the bill text is now finalized and will not be altered again.

Will FADA authorize employees of the federal government to refuse to process the tax returns, visa applications, or Social Security checks of same-sex couples?

No. The bill expressly excludes federal employees acting within the scope of their employment and thus does not permit government employees to refuse people any services or benefits. FADA would simply protect federal employees from losing their job for religious beliefs expressed outside of the scope of their employment.

Will FADA authorize for-profit contractors to deny services or benefits to same-sex couples and/or eliminate any anti-discrimination?

No. The bill does not permit for-profit contractors to refuse services to same-sex couples. FADA would simply protect federal contractors from losing their contracts because of religious beliefs expressed outside of the scope of their contracts. FADA also does not protect publicly-traded corporations.

Will FADA authorize hospitals to refuse care to same-sex couples?

No. The bill expressly excludes “hospitals, clinics, hospices, nursing homes, or other medical or residential custodial facilities with respect to visitation, recognition of a designated representative for health care decision-making, or refusal to provide medical treatment necessary.”

FADA ensures a hospital will not lose its tax-exempt status or have its federal benefits revoked because, for example, a doctor does not wish to provide marital counseling services in a manner that violates his or her sincerely held religious beliefs.

Will FADA undermine federal civil rights protections, such as those available to employees and customers of for-profit businesses?

No. The bill does not alter or modify civil rights laws protecting people from discrimination in, for example, housing, credit, public accommodations, voting, and does not impact the American Disabilities Act, the Pregnancy Discrimination Act, and other federal civil rights laws. Employees and customers will have recourse to applicable protections under federal or state law just as before.

Will FADA preempt any state non-discrimination laws?

No. The bill applies to the federal government only and does not preempt any state or municipal non-discrimination laws, including those relating to sexual orientation or gender identity.

Will FADA grant religious individuals and institutions special privileges before the law?

No. FADA does not give special privileges to religious individuals or institutions, rather it clarifies that the federal government cannot discriminate against individuals and institutions simply because they believe and act in accordance with their religious belief that marriage is a union between a man and a woman. FADA is aimed specifically toward the federal government and executive agencies that are currently operating under the premise that the First Amendment no longer protects the belief in marriage as a union between one man and one woman.

Will FADA take away the right of members of the LGBT community to challenge religious individuals and institutions in court?

No. FADA does not prevent members of the LGBT community from taking anyone to court. The problem we are seeing now is that the Supreme Court ruling in Obergefell v. Hodges has left the courts in confusion, empowering liberal activist judges to rule however they desire. FADA offers specific protection to those who still believe marriage is a union between one man and one woman in order to limit judicial discretion in current cases.

We should have faith in the courts to not hold religious defendants liable for discrimination if they are innocent. FADA would just increase government intervention in our lives.

Unfortunately, it would be naive to believe liberal activist courts will rule fairly. FADA simply puts guardrails in place for judges to ensure they rule in accordance with First Amendment rights. The Constitution charges Congress, first and foremost, to protect the rights of the people to speak and act in accordance with their religious beliefs, including marriage.

On the contrary, FADA ensures the federal government stays out of the lives of American citizens. FADA helps prevent the federal government from intervening in civil society to force people, and their businesses, to provide goods or services they feel are against their religious beliefs.

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Key Vote Looming if Green Energy Subsidies Added to FAA Bill

 

On Wednesday, the Senate voted 98-0 to invoke cloture on the motion to proceed to H.R. 636, the vehicle for the Federal Aviation Administration (FAA) Reauthorization Act. Heritage Action will key vote against the bill if subsidies for fuel cells, geothermal and biomass are included.  Those subsidies — which were little more than corporate welfare — are expired and were not included in last December’s tax extenders package.  

In a letter sent to Senate Finance Chairman Orrin Hatch (R-UT) 32% and Ranking Member Ron Wyden (D-OR) 6% earlier this week, Heritage Action and 33 conservative organizations warned against including these provisions in the FAA bill:

Congress considered the matter of expiring tax provisions less than 4 months ago. The $680 billion package signed into law in December made some of these items permanent and allowed more than two dozen others to expire at the end of this past year, laying the groundwork for comprehensive tax reform. The $1.4 billion in expiring tax provisions currently under consideration — pertaining to wind power, geothermal heat pumps, fuel cell facilities and combined heat and power (CHP) properties — are a distortion of the tax laws for special interests in the renewable energy industry and were wisely left out of this package.

It should also be noted that Congress extended significantly favorable tax treatment to renewable energy in omnibus appropriation legislation that accompanied the aforementioned tax extender package. This bill included 5-year extensions of the main federal provisions for renewables, the wind production tax credit (PTC) and the solar investment tax credit (ITC), at a cost of $23.8 billion over the next decade.

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Memo: A Conservative Response to Puerto Rico’s Debt Crisis

To:             Interested Parties
From:        Heritage Action
Date:         March 10, 2016
Subject:    A Conservative Response to Puerto Rico’s Debt Crisis

Some type of congressional action on Puerto Rico’s looming debt crisis is expected before the end of March.  Puerto Rico, a United States territory, owes creditors more than $70 billion and is seeking congressional approval to file Chapter 9 bankruptcy.

The Heritage Foundation has written extensively on the current situation in Puerto Rico and has laid out the path Congress should take as it addresses this issue.  While the situation in Puerto Rico is complicated, there are a few important things to know:

This is primarily a growth problem. Puerto Rico isn’t just facing an acute financial crisis; it is facing a chronic, long-term growth crisis. Puerto Rico is not merely in a temporary debt crisis, with sunny skies on the horizon if it can only get past this temporary hurdle — far from it. Under current policies, Puerto Rico simply cannot grow. In fact, if all of Puerto Rico’s debts and unfunded liabilities were wiped out tomorrow, without a transformation in governance and an economic turnaround, it would just be a matter of time before the island would be back facing fiscal trouble once again. No amount of bailouts, debt restructuring, or new bankruptcy proceedings will change this simple fact. Without growth, Puerto Rico’s problems will only continue to fester and get worse.

Congress can help. While most of Puerto Rico’s problems are of its own making, Congress has imposed policies on Puerto Rico that severely damage its ability to grow. Two policies worth noting…

Read the entire memo.

 

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Heritage Action Brief: No More Obama Judicial Confirmations

 

Background: President Obama has consistently shown a lack of regard for the separation of powers laid out in the United States Constitution. His executive overreaches have undermined not only our Constitution and the rule of law, but have also paved the way for progressive politics. Whether the issue is health care, immigration, or second amendment rights, President Obama uses his phone and his pen to enact progressive policies that the American people do not want.

For the most part, President Obama has gotten his way on a number of issues, shielded by liberal federal judges who he and Presidents before him appointed. Entering his eighth year in office, judicial appointments are at the very top of his priority list.

Reasserting Constitutional Prerogatives: Despite the President’s actions, in the last year, the Republican controlled Senate has already allowed the confirmation of 12 federal judges. Overall the President has successfully appointed 55 appeals court judges and 264 district court judges. To put this in perspective, President George W. Bush successfully appointed 62 appeals court judges and 261 district court judges. President Obama is on track to have more judicial nominees confirmed than President Bush.

The President’s damage to our constitution and the rule of law has gone far enough. Senate Republicans must use their constitutional power of confirming federal judges to reassert their constitutional prerogatives and rein in executive overreach.

Conservative Momentum Against Judicial Confirmations: At the end of 2015, Senate Republicans unanimously agreed to hold votes on five district and circuit court nominees in the new year. The first, Third Circuit nominee Luis Felipe Restrepo, was confirmed 82-6 on January 11th. In response, Heritage Action key voted the nomination of Wilhelmina Marie Wright to the Minnesota Supreme Court. This is the same liberal judge who accused President Ronald Reagan of racism and bigotry and took a dim view of property rights.

While the Senate confirmed her nomination on January 19th, 36 Republicans voted against her, demonstrating the growing momentum to stop future nominees. Even Senate Minority leader Harry Reid recognizes the progress. According to Reid, “Powerful right-wing groups announced they’re scoring votes on presidential nominations. In fact…Heritage Action said the Senate should only confirm nominees they deem – they deem, not the senators, but this right-wing cabal – that they deem worthwhile.”

36 “No” votes is a good start, but more work needs to be done. The Senate should no longer confirm any additional non-security nominees under this President in the months ahead.

Claim: Just because President Obama has engaged in executive overreach doesn’t mean Congress should engage in legislative overreach. Two wrongs don’t make a right.

Response: While the President has the power to nominate federal judges, the Constitution clearly gives power to the Senate alone to approve those nominations. In fact the Constitution calls on the President to adhere to the “advice and consent” of the Senate.

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…”

Our system of government requires each branch to jealously guard its prerogatives, and President Obama routinely tramples over the legislature’s prerogatives. Senators should not stand by idly for the next 12 months. They must act to reassert their separate but equal role in our constitutional system.

Furthermore, there is a long history of the Senate ending consideration of nominees in the last few months before an election. The Thurmond Rule, for example, is an unwritten Senate rule that discourages the confirmation of lifetime judicial appointments during the last 6 months of an outgoing president. Senator Strom Thurmond used it to oppose President Lyndon Johnson’s and President Jimmy Carter’s nominations and Senator Patrick Leahy used it against President Bush during the last year of his presidency. Conservatives should act now by applying the Leahy-Thurmond Rule a few months earlier than is custom in order to restore the balance of powers and limit further executive overreach.

Claim: Senate Republicans have a duty to confirm federal judicial nominees, especially considering so many judicial seats are empty.

Response: While filling judicial seats are important, Senate Republicans have a duty to confirm not just any judicial nominee, but nominees who follow and obey the Constitution. White House chief of staff Denis McDonough admitted in January of 2016, “We’ll do audacious executive action over the course of the rest of the year, I’m confident of that.” The President’s track record has proven he cannot be trusted to obey, or nominate judges who obey, the Constitution.

While many judicial seats are empty, President Obama has filled hundreds of seats over the course of his presidency. In fact, President Obama already has more district court nominees confirmed than President Bush did at the end of his presidency. Every seat filled by an Obama appointee is a seat that can’t be filled by a Republican president.

Claim: Republican attempts to stifle judicial nominations are unprecedented in American history. Only 11 judges were confirmed in 2015, the lowest since 1960.

Response: President Obama’s judicial nominations must be taken in the larger context. President Obama has already successfully appointed 55 appeals court judges and 264 district court judges. President Bush before him successfully appointed 62 appeals court judges and 261 district court judges within his entire 8 years of office. President Obama is on track to have more nominees confirmed than his predecessor.

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Budget Resolution Claims and Responses

The House is currently discussing a potential path forward on an FY17 budget resolution.  As Heritage Action explained last month, there are four criteria necessary for conservatives to support a congressional budget resolution:

  1. Balance within the budget window without accounting gimmicks;
  2. Remove Obamacare tax revenue, as the law should repealed in 2017, and as last year’s reconciliation exercise proved the GOP remains committed to repealing the entire law, including all of its tax increases;
  3. Explicitly reaffirm the GOP’s commitment to bold entitlement reform, especially Medicare premium support; and
  4. Abide by the topline FY17 budget levels contained in last year’s Republican budget.

As things stand right now, there is an effort to convince conservatives to vote for an FY17 budget that calls for $1.070 trillion in discretionary spending, which is $30 billion above the levels set by the Budget Control Act of 2011.  The “unenforceable nature of budget resolution promises” should cause those conservatives to reject the type of deals currently being discussed.

Below are some commonly made claims and straightforward conservative responses:

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