Fact Sheet: How to Protect Religious Freedom

Background: On June 26th, 2015, the Supreme Court ruled in Obergefell v. Hodges that laws defining marriage as the union between a husband and wife were unconstitutional and imposed a new definition of marriage on all fifty states.

In anticipation of the ruling, Sen. Mike Lee (R-UT) and Rep. Raul Labrador (R-ID) introduced the First Amendment Defense Act (FADA) on June 17th, 2015, to prevent the federal government from denying tax exemptions, grants, contracts, licenses, or certifications to individuals and organizations based on their belief that marriage is a union between a man and a woman. Since its introduction last June, the bill has picked up major support in the Senate and the House. The Senate bill now has 37 cosponsors along with nine members of the judiciary committee. Cosponsors on the House bill currently include 166 members making up the majority of House Republicans.

Imminent Risk to Religious Liberty.

During argument before the Supreme Court in Obergefell v. Hodges, Solicitor General Donald Verrilli was asked whether the administration could remove tax-exempt status for religious schools that believe marriage is the union of a husband and wife. Verrilli replied saying, “it’s certainly going to be an issue.”

Similar challenges to religious liberty have already surfaced across multiple levels of government. State legislatures, such as California in 2013, have made attempts to remove tax-exempt status from groups such as the Boy Scouts. In 2014, President Obama issued an executive order barring federal contractors from “discriminating” on the basis of sexual orientation, disadvantaging businesses and organizations with policies supporting traditional marriage. Faith-based adoption agencies in Massachusetts, Illinois, and Washington, D.C., have lost their licenses and contracts because they believe children deserve to be placed in homes with a married mom and dad. The liberal American Bar Association just announced that is investigating BYU Law School’s policies against same-sex marriage, thereby putting its accreditation and access to federal funds at risk.

In the wake of the Supreme Court’s decision, these challenges have only intensified. FADA’s protections are a positive step in heading off these and future threats to religious liberty.

Indiana Case Study.

In anticipating and in response to the Supreme Court’s marriage ruling, numerous states rushed to enact various Religious Freedom Restoration bills. In Indiana, Senate Bill 101 passed with overwhelming support, but immediately faced a national backlash from LGBT interest groups along with some members of the business community. Unfortunately, rather than defend the religious rights of the people of Indiana, Indiana legislators pushed through a statutory “fix” undermining Indiana’s new law. But even in Indiana, which became ground zero in the fight for religious liberty, lawmakers have regained their footing on the issue. Due to the efforts and influence of strong conservatives, further efforts to undermine religious liberty through sexual orientation and gender identity “bathroom bills” were defeated in the Indiana Senate this year. Congress should not be afraid of “another Indiana” because Indiana is now successfully defending religious liberty.

Congressional Responsibility in Preserving Religious Freedom.

At all levels, government has an obligation to ensure that Americans retain the right to speak and act in accordance with their religious beliefs. On the federal level, the body tasked with preserving those rights is Congress. Congress has an opportunity to take the lead in declaring that the redefinition of marriage cannot be allowed to erode religious liberty, and that religious liberty and the rights of conscience do not infringe upon anyone’s sexual freedoms.

As Heritage Scholar Ryan Anderson notes, the fight for conservatives after the Supreme Court’s decision is to protect the freedom of speech, association, and religion for those who continue to affirm that marriage is the union of a man and a woman. The First Amendment Defense Act it is a positive step in the right direction.

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No Hearings, No Votes on Supreme Court Vacancy

Background: On February 13, 2016, Supreme Court Justice Antonin Scalia passed away. With his passing, the nation lost one of its finest — a justice who fought to uphold the United States Constitution as our Founders intended. Shortly after his passing, President Obama announced his intention to replace Justice Scalia and demanded from the U.S. Senate a “timely vote” on his future nominee. While the President certainly has the constitutional power to nominate a replacement, even though it is his last year in office, the constitutional authority to confirm a judicial nominee resides solely with the Senate. Because of the President’s past efforts to undermine the separation of powers with executive overreach, the Senate should refuse to consider any Supreme Court nominee the President puts forth.

Senate Majority Leader Mitch McConnell and most Republican Senators are calling for any confirmation to occur only when a new president has taken office, after the American people have a voice on the direction of the Court. They should stand by this commitment to the end of the year and avoid any hearings or votes on President Obama’s expected nominee.

Executive Overreach: President Obama’s time in office has been marked by executive overreach and disregard for the separation of powers laid out in the Constitution. His efforts on Obamacare, amnesty, and Second Amendment rights are explicit examples of his dim view of the rule of law. Standing up to the President on Justice Scalia’s replacement represents the best opportunity Congress has left to rein in the President’s executive overreach.

Confirmation Process: The confirmation of a Supreme Court nominee is a lengthy process, and there are a number of steps that must be avoided to ensure the process does not move forward. The President will first submit his nominee to the Senate for consideration where it is usually referred to the Senate Judiciary Committee. Typically at this point the Committee holds hearings to vet the nominee and then votes amongst its members. The nominee is then often forwarded to the full Senate with a recommendation. In this case, the Senate Judiciary Committee should reject all of these steps and not consider the nominee at all. If the Committee were to forward the nomination (perhaps with a negative recommendation) to the full Senate over conservative objections, the nomination should be filibustered on the floor.

Historical Precedent: Over the course of our nation’s history, the Senate has denied 36 out of 160 nominees. 25 out of those 36 never made it past the Judiciary Committee to receive a vote on the Senate floor. It has been over 76 years since a Supreme Court Justice was nominated and confirmed during a presidential election year, and since 1900, the Supreme Court has functioned despite the absence of at least one justice 60 different times. In light of how President Obama has undermined our Constitution there is no need to deviate from this longstanding precedent.

Liberal Hypocrisy: President Obama and leaders of the Democratic Party have criticized Republicans for not agreeing to vote on a Supreme Court nominee. Ironically, former Senator Barack Obama and potential future Democratic Minority Leader Chuck Schumer have both attempted to block past Republican nominees to the Supreme Court. Senator Obama filibustered the nomination of Supreme Court Justice Samuel Alito in 2006. Senator Schumer argued against approving any George W. Bush nominee to the Supreme Court 19 months before the next President would be inaugurated.

In July 2007 Senator Schumer said, “Given the track record of this President and the obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances. They must prove by actions – not words – that they are in the mainstream, rather than the Senate proving that they are not.”

President Obama is in the last year of his presidency and with an election less than 9 months away, the Senate should wait to decide on a replacement for Justice Scalia until there is a new President.

Claim: The President has a constitutional duty to nominate a Supreme Court Justice in the wake of Justice Scalia’s death.

Response: While the power to nominate a Supreme Court Justice resides with the President, only the U.S. Senate has the constitutional authority to confirm. In fact, the Constitution calls on the President to adhere to the advice and consent of the Senate.

Article 2 section 2 of the U.S. Constitution states, “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…”

The Heritage Foundation’s authoritative guide to the Constitution explains, “As the president has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.”

Claim: Senate Republicans should not put politics above their constitutional duties to confirm a new Justice. The Supreme Court cannot function without all 9 of its Justices.

Response: There have been 60 Supreme Court justice vacancies since 1900. Of the 160 individuals who have been nominated to the Supreme Court throughout our nation’s history, 25 were not confirmed without receiving a vote. Despite these vacancies, the Supreme Court has been able to perform its duties every time. Waiting for a new President who will be decided by early November will allow the American people to have a critical voice in deciding who the next Supreme Court Justice will be.

Claim: The Senate should be reasonable and at least allow a vote on an Obama Supreme Court nominee.

Response: The debate over replacing Justice Scalia is centered on the nomination process not the merits of any potential nominee. A lame duck president should not fill a seat on the Supreme Court. This should be left up to the next president — Republican or Democrat — who the American people will decide in November. The Senate Judiciary Committee should not consider any nominee.

Claim: Won’t Senate Republicans be viewed as obstructionists?

Response: No. The public understands that a lame duck President should not get to set the direction of the Court with another lifetime appointment months before the election. That is why the Senate’s “advice and consent” role is so important.

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Congressional Boarding Pass

Setting the 2017 Policy Agenda

No more favors for the few. Opportunity for all—that is our motto.
— Speaker Paul D. Ryan

Americans are hungry for leaders who will address concerns about the relationship between mobility, economic dynamism, concentrated power, and collusion between special interests and government.

The Heritage Foundation’s American Perception Initiative (API) “demonstrates the centrality of the two core themes of this vision—’opportunity’ without the corrupting influence of ‘favoritism’.” That is the central challenge facing our nation: creating opportunity for all and favoritism to none.

BUDGET

While nonbinding and frequently ignored, the budget is an opportunity to put forward a roadmap to reduce the size and scope of the federal government. Heritage market research found conservatives have “high credibility” on issues related to government spending and reform.

Balance. A 2013 NRCC poll found a balanced budget message proved to be a winning argument, even in purple districts. The budget should balance at lower spending levels, without gimmicks, and without relying on Obamacare’s tax revenues, which will be repealed come 2017.

Recommit to Premium Support. The House and Senate budgets should explicitly reaffirm the GOP’s commitment to advancing premium support in Medicare.

OBAMA AGENDA

Congress must find new leverage points to reassert its constitutional authority and rein in executive overreach — guns, amnesty, environment, labor, etc — during the final year of the Obama administration.

Legislative Riders. Appropriations riders can be part of the strategy, but final action is unlikely before September. In the interim, riders should be attached to bipartisan priorities that are likely to move through the process.

Nominees. Given the Obama administration’s disregard for Congress’s role in our constitutional system of government, the Senate should refuse to confirm the president’s nominees unless those nominees are directly related to our national security.

WELFARE REFORM

In 1996, Congress reformed one welfare program out of roughly 80 means-tested programs. Heritage market research found the conservative approach to welfare reform “has the ability to significantly increase support for the conservative vision for America.”

Strong Work Requirement. The most notable component of the 1996 welfare reform was a work requirement. Any welfare reform proposal should include strong work requirements. Last year in Maine, work requirements for childless, able-bodied adults without dependents caused an 80-percent reduction in that group’s food stamp use.

Restore Federalism. The 1996 reform also froze nominal spending on TANF — a cap that remains in place today. Congress should aim to restore federalism in welfare policy by reducing the long-term federal footprint through real spending reductions and a nominal cap, allowing states to make decisions about how much revenue should be devoted to their welfare programs.

HEALTHCARE REFORM

According to Heritage’s market research, a fresh start for health care reform “is overall one of the strongest issues on the conservative agenda” and offers “a significant ability to further increase identification with the conservative vision for America.”

Pre-Obamacare Baselines. America’s health care system prior to Obamacare was deeply flawed. Any conservative reform proposal should envision a smaller federal role than that which existed before Obamacare, with the goal of reducing overall healthcare costs rather than matching Obamacare’s aspiration for universal coverage. At a bare minimum that means reverting back to the pre-Obamacare spending and tax baselines. Simply redirecting and rebranding bloated Obamacare spending towards a less bad system is unacceptable.

TAX REFORM

The current tax system is stifling opportunity for all Americans, not just corporations. Heritage market research finds that tax reform “is the most relevant issue of the conservative agenda.” The conservative approach — fair and simple, reward work and savings, and eliminate loopholes for special interests — “is highly credible and recognized as a strong solution.”

Ditch Neutrality. The beltway orthodoxy — tax reform should be revenue neutral, distributionally neutral, and conform with other liberal constructs — crippled Mitt Romney’s ability to campaign on reform and stifled the most recent congressional effort to draft pro-growth reforms. With revenues as a percentage of GDP approaching Clinton-era levels, congressional reform efforts should reflect this emerging consensus on the right.

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Action Alert: “NO” to the Export-Import Bank

Today a handful of Republicans are going to help Nancy Pelosi and well-connected special interest groups revive the Export-Import Bank.

In July, conservatives had a major victory when you shut down the Export-Import Bank, which was nothing more than a slush fund for corporate welfare.

Even though the bank has been expired for over 100 days, Barack Obama and big-government lobbyists worked for weeks to bully lawmakers into voting to restart the Export-Import Bank.

So what’s next? Every single House Democrat will vote to resurrect the now-defunct bank. We need to make sure as many Republicans as possible vote “NO” on the Export-Import Bank.

Make the call to your lawmakers today to make sure they are voting “NO” on the Export-Import Bank.

Heritage Action is opposed resurrecting the Export-Import Bank (H.R. 597). We are key voting against the bill and we need your help to get as many Republican “NO” votes as possible.

Call Congress

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Action Alert: Our chance to make Iran recognize Israel statehood

The Obama administration is negotiating a deal with Iran on that nation’s nuclear program. Some conservative Senators believe Iran should be forced to recognize Israel’s right to exist before any deal can take effect.

However President Obama disagrees that Iran should recognize Israel as a state.

Senator Marco Rubio is pushing an amendment that would require the Obama administration to certify that Iran has publicly recognized Israel’s right to exist before America lifts sanctions on Iran.

Rubio’s amendment may be blocked – not allowed to come up for a vote.

Senate leaders will likely block this important amendment unless they feel the urgent and growing pressure from conservatives outside of Washington.

Take action today: Call your Senators and tell them to urge leadership to allow a vote on Rubio’s Israel amendment.

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