PEACEFUL COEXISTENCE

Commissioners’ Statements
33
Executive Order which prohibits federal contractors from discriminating upon the basis of gender
identity or sexual orientation 8 is quite clear. Most are thinly-veiled attempts to turn back the
clock, and will fall to constitutional challenge as overbroad and motivated by animus.
A. First Amendment Defense Acts purport to elevate sweeping protections for religious
freedom above status-based nondiscrimination laws and policies. Observers on the
left and right doubt their constitutionality.
The federal government and state governments are considering so-called “First Amendment
Defense Acts.” In most relevant part, the June 2015 federal proposal would forbid the federal
government from taking
any discriminatory action against a person (defined to include for-profit
corporations), wholly or partially on the basis that such person believes or acts in
accordance with a religious belief or moral conviction that marriage is or should
be recognized as the union of one man and one woman, or that sexual relations are
properly reserved to such a marriage. 9
It is critical to note that some important conservative analysts oppose these acts. Among others,
both the Cato Institute and The Volokh Conspiracy have voiced serious concerns about their
fairness and constitutionality. Walter Olson, Senior Fellow at the Cato Institute, exposed the
hypocrisy of the First Amendment Defense Act by highlighting that
8
Exec. Order No. 13,672, 79 Fed. Reg. 42,971 (July 21, 2014).
9
H.R. 2802, sec. 3(a), 114th Cong. (2015), available at https://www.congress.gov/bill/114thcongress/house-bill/2802.
See also S. 1598, available at https://www.congress.gov/bill/114th-congress/senate-bill/1598/text.
Although the reference to “discriminatory action” is vague, the Act then specifies several
examples of such action, including revoking “an exemption from taxation under section 501(a) of
the Internal Revenue Code,” and denying “any Federal grant, contract . . . license, certification,
accreditation, employment, or other similar position or status from or to such person.” The
specificity of what religiously motivated actions are insulated from federal sanction and which
punitive measures by government are barred is in quite sharp contrast to the sweeping and vague
generalities of a scheme like RFRA or its state counterparts. [footnotes omitted.]
Lupu, Ira C., “Moving Targets: Obergefell, Hobby Lobby, and the Future of LGBT Rights,” 7 Alabama Civ. Rts. &
Civ. Lib. L. Rev 1, pp. 32 - 33 (2015), GWU Law School Public Law Research Paper No. 2015-15; GWU Legal
Studies Research Paper No. 2015-15, available at
http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2373&context=faculty_publications.
During the Presidential primary season for the 2016 election cycle, some Republican candidates either signed or
swore fealty to following statement: “If elected, I pledge to push for the passage of the First Amendment Defense Act
(FADA) and sign it into law during the first 100 days of my term as President.” The American Principles Project and
Heritage Action for America proffered the pledge to all Republican candidates for consideration. See Schweppe, Jon,
“Six Candidates Pledge to Sign First Amendment Defense Act Within First 100 Days,” The Pulse, Dec. 17, 2015,
available at http://thepulse2016.com/jon-schweppe/2015/12/17/six-candidates-pledge-to-sign-first-amendmentdefense-act-within-first-100-days/.