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Hello, FADA

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Here’s some holiday cheer — oh, excuse me, Christmas cheer (my liberal comrades are at war with Christianity, don’t you know, but I’m trying to promote peace and goodwill in what the right wing has turned into a season of bile and hate) — from Kira Lerner of ThinkProgress: “Six of the Republican candidates vying for the presidency have signed a pledge promising to support legislation during their first 100 days in the White House that would use the guise of ‘religious liberty’ to give individuals and businesses the right to openly discriminate against LGBT people. Ted Cruz, Marco Rubio, Ben Carson, Carly Fiorina, Rick Santorum, and Mike Huckabee vowed to push for the passage of the First Amendment Defense Act (FADA), legislation that would prohibit the federal government from stopping discrimination by people or businesses that believe ‘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.’”

That last bit is extraordinary in that it instantly provides common cause between the LGBT and straight frat boy communities.

Salon’s Heather Digby Parton continues, using Donald Trump’s loony admiration for the Russian dictator Vladimir Putin as a springboard: “Apparently, Bush, Graham, Paul, and Trump have also publicly expressed support for FADA. In the name of freedom, of course, just as the old Soviets would have done. These liberty lovers may shake their fists and pretend they are in opposition to Putin’s tyrannical ways, but when you get down to it they’re all on the same page.”

Media Circus

Apologies for the redundant “Trump’s loony.” I’m confident that 2016’s Word of the Year will be “trumpy,” defined as “monomaniac­ally lunatic, crazy, mad, or insane.”

The paragraphs I quote above are translations, of course. In the original Fascist, the story reads like this: “Congress should act now to pass the First Amendment Defense Act. The purpose of FADA is only to prevent the federal government from discriminating in, for example, the provision of contracts, grants, and employment against those of us who believe in the natural, historical, and biblical definition of marriage. FADA would not usurp the authority of state laws and governments or govern disputes solely between private parties, and it does not encourage discrimination against people because they identify as homosexual or transgendered. FADA simply provides protections for those who disagree with the Supreme Court’s redefinition of marriage.” (From an opinion piece in the Indianapolis Star by Ron Johnson, Jr., of the Indiana Pastors Alliance.)

Encouragingly, there’s a squeak or two of dissent from the right. Walter Olson of the Cato Institute, the self-described “libertarian” but in fact radical right, Koch-founded DC think tank, writes in a Newsweek op-ed:

“The sum of this would be to create an extremely broad new category of anti-discrimination law — retaliatory discrimination based on a certain set of beliefs or acts — which would offer protected group status to powerful institutions as well as individuals, and afford very valuable legal leverage: recipients of federal subsidies, for example, could challenge any cutoff as motivated at least ‘partially’ by political animus. Astoundingly, the protection would run in one direction only: It would cover those who favor traditional definitions of marriage, while leaving those who might see merit in same-sex marriage or cohabitation or non-marital sex perfectly exposed to being fired, audited, or cut off from public funds in retaliatory ways.”

Dale Carpenter continues on this theme in the Washington Post: “This points to a constitutional problem with the bill that Olson does not discuss but that seems potentially grave. By offering government support and protection to only one set of ‘beliefs’ (and necessarily to speech expressing those beliefs) in the debate over same-sex marriage (and the morality of sex outside such marriages), the FADA draws an explicit distinction based on viewpoint. Such distinctions are among the most disfavored ones in constitutional law because they involve government partisanship in favor of a particular set of ideas. Speakers are constitutionally protected from government action that penalizes (or even simply denies benefits or subsidies) based on viewpoint. But even speakers whose viewpoints on a subject are beleaguered politically and culturally, as traditional marriage supporters say their ideas are, aren’t entitled to government action that grants them special rights, exemptions, and protections unavailable to others with opposing viewpoints on the very same subject. The First Amendment Defense Act has the special property of assailing the thing it purports to defend.”

Olson again: “It would appear to establish legal protection for acts taken ‘as’ federal employees, with federal money, and even acts clothed with official authority. It’s here that FADA really does seem not just to lay down a marker on behalf of future Kim Davises, but even to go much further. Relatively few government employees have marriage recordation as one of their job duties, but many of them have job duties that involve recognizing already-wed couples as married, in the handling of joint tax returns, pensions and mortgage programs, student aid programs, and federal employee benefits, crime investigation, and on and on. If FADA is to be taken at face value, it appears to protect a federal clerk working through a stack of survivorship benefit papers who declines to process one for a gay couple.”

Back to Carpenter: “This points to a second potential constitutional defect that Olson doesn’t analyze. By singling out same-sex couples in the way FADA does (although the drafters were clever enough to encompass objections to all non-marital sexual acts as well), the bill excuses and protects discrimination and refusals of service to them throughout their lives and in every area of law. There’s now a very good argument based on federal precedents that discrimination against married same-sex couples is a form of sexual orientation or sex discrimination that is presumptively unconstitutional under the Equal Protection Clause.”

We can only hope that Carpenter’s arguments are sound enough to convince Congress not to pass this odious bill.

Sometimes when I write this column I have the feeling that I’m not really covering the media but, instead, writing a sick comedy routine about a parody USA that’s been taken over by prisoners who have escaped from a hospital for the criminally insane. In this case, even I don’t find the sick joke to be funny. And the prisoners haven’t escaped. They’ve been pardoned and set free by the Republican National Committee with the support of half the nation. We’re doomed. Merry Christmas.

Follow @EdSikov on Twitter and Facebook.

Updated 5:17 pm, July 20, 2018
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