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Fact Sheet: How to Protect Religious Freedom

Mar 01, 2016

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-Utah) and Rep. Raul Labrador (R-Idaho) 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.