The Editorial Board, G.O.P. Anti-Gay Bigotry Threatens First Amendment, The New York Times

This past June, in the heat of their outrage over gay rights, congressional Republicans revived a nasty bit of business they call the First Amendment Defense Act. It would do many things, but one thing it would not do is defend the First Amendment. To the contrary, it would deliberately warp the bedrock principle of religious freedom under the Constitution.

The bill, versions of which have been circulating since 2013, gained a sudden wave of support after the Supreme Court legalized same-sex marriage nationwide. It is being hawked with the specter of clergy members being forced to officiate such marriages. This is a ploy, as the bill’s backers surely know: There has never been any doubt that the First Amendment protects members of the clergy from performing weddings against their will.

In reality, the act would bar the federal government from taking “any discriminatory action” — including the denial of tax benefits, grants, contracts or licenses — against those who oppose same-sex marriage for religious or moral reasons. In other words, it would use taxpayers’ money to negate federal anti-discrimination measures protecting gays and lesbians, using the idea of religious freedom as cover.

For example, a religiously affiliated college that receives federal grants could fire a professor simply for being gay and still receive those grants. Or federal workers could refuse to process the tax returns of same-sex couples simply because of bigotry against their marriages.

It doesn’t stop there. As critics of the bill quickly pointed out, the measure’s broad language — which also protects those who believe that “sexual relations are properly reserved to” heterosexual marriages alone — would permit discrimination against anyone who has sexual relations outside such a marriage. That would appear to include women who have children outside of marriage, a class generally protected by federal law.

This bizarre fixation on what grown-ups do in their bedrooms — which has long since been rejected by the Supreme Court and the vast majority of Americans — is bad enough. The bill makes matters worse by covering for-profit companies, which greatly multiplies the potential scope of discrimination against gays and lesbians.

These are radical proposals, but they are accepted without question by many in today’s Republican Party. In its current form, the bill has 148 co-sponsors in the House and 36 in the Senate — all Republicans but one, Representative Daniel Lipinski of Illinois. It has been endorsed by the Republican National Committee and at least four Republican presidential contenders. It is, in other words, a fair representation of right-wing reaction to the long overdue expansion of basic civil and constitutional rights to gays and lesbians.

Thankfully, the bill’s chances of passage are low. Even if it were to get through Congress, President Obama would surely veto it. Still, its symbolic power will embolden those looking for a legal justification to discriminate — whether they are individuals like Kim Davis, the county clerk in Kentucky who went to jail rather than obey the law and issue same-sex marriage licenses, or states, where similar legislation has a much better chance of becoming law. In Indiana and Arkansas, laws protecting such discrimination have already passed.

Both laws, of course, provoked a swift and emphatic backlash from the public and the corporate world, leading both states to scale them back. (Indiana’s governor, Mike Pence, embarked on a bumbling effort to claim that his state’s law would not provide cover for discrimination against gays and lesbians.)

Fear of a similar debacle at the national level may help explain why a committee vote in Congress on the First Amendment Defense Act, which conservative Republicans pushed for in late July, was not scheduled.

The best outcome at this point would be for the bill to die where it is. The First Amendment needs no assistance in protecting religious freedom in America.

Many religious leaders and clergy members are themselves deeply disturbed by the proposed legislation; more than 3,000 signed a letter opposing it on the grounds that genuine religious liberty “does not allow us to harm or discriminate against others.” The supporters of this bill, who are so eager to talk about religious freedom, would do well to listen to the people they claim to represent.

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