Ian Millhiser and the FADA

Ian Millhiser - FADAThough the bill’s title, the “First Amendment Defense Act” [FADA], suggests that it would preserve values enshrined in the First Amendment, nothing in that amendment permits religion to be used as a shield for discrimination, and the Supreme Court has consistently rejected claims to the contrary.

Maurice Bessinger was a bigot who owned a chain of barbecue restaurants in South Carolina. He believed that the Civil Rights Act of 1964, with its ban on whites-only lunch counters, “contravenes the will of God,” and he brought a lawsuit seeking a religious exemption from this law. The Supreme Court disagreed in Newman v Piggie Park, ruling unanimously that Bessinger’s claim was “patently frivolous.”

Similarly, when Fremont Christian School claimed a right to give inferior compensation to many of its women employees because of its religious belief that “in any marriage, the husband is the head of the household and is required to provide for that household,” a federal appeals court rejected the school’s request for an exemption from anti-discrimination law.

Additionally, in a case that is strikingly similar to the kind of benefits FADA would give to religious objectors who engage in discrimination, Bob Jones University claimed that it should continue to receive tax subsidies despite its religiously motivated policy that “students who date outside of their own race will be expelled.” The Supreme Court rejected this claim as well, explaining that “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

FADA would authorize a different kind of discrimination — primarily anti-LGBT discrimination as opposed to race or gender discrimination — but the overarching principle remains the same. The First Amendment simply does not give religious objectors a license to violate civil rights laws.

—Ian Millhiser
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