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Sen. Ted Cruz Again Sponsors Anti-LGBTQ “First Amendment Defense Act”

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Bill would allow government employees, others to discriminate based on religious beliefs. 

Sen. Mike Lee reintroduced a controversial bill Thursday, March 8 that aims to protect religious freedom but which critics argue could lead to discrimination against the LGBTQ community.

The Utah Republican, along with 21 other GOP senators, including Texas’ Ted Cruz, unveiled a new version of the “First Amendment Defense Act (FADA),” which was initially introduced in 2015 but not taken up by committee in the Republican-controlled Senate at the time.

In both 2015 and 2017, Cruz co-authored FADA with Lee. Cruz’s Democratic opponent in the November election, U.S. Rep. Beto O’Rourke, is a staunch LGBTQ ally.

The bill seeks to protect individuals and institutions from punitive action by the government — such as revoking tax exempt status or withholding federal grants or benefits — for believing that marriage is between one man and one woman and for opposing sex outside of marriage.

“What an individual or organization believes about the traditional definition of marriage is not — and should never be — a part of the government’s decision-making process when distributing licenses, accreditations or grants,” Lee said in a statement.

Unlike the 2015 version, however, the bill would also protect those who support any federal legal definition of marriage between two people, including same-sex marriage. So, for example, a pro-same-sex marriage group would be protected against discriminatory efforts from an administration that opposes same-sex marriage.

A spokesman for Lee, Conn Carroll, said the change was made after critics raised equality concerns about the bill in 2015.

Despite the change, activist groups still argue the bill could lead to unfair treatment. “Any changes made to this bill can’t hide its true animus: to legalize discrimination against LGBTQ people,” said Masen Davis, CEO of Freedom for All Americans, a campaign that fights for LGBTQ nondiscrimination protections.

“This bill opens the door to a wide range of taxpayer-funded discrimination,” said Ian Thompson, legislative representative with the American Civil Liberties Union. “It would let private companies and nonprofit government contractors — which includes a significant portion of social services providers — refuse to provide a service or benefit to people because they do not fit their definition of family, from same-sex married couples and their children, a single parent and their child, or an unmarried couple who are living together. Whatever the sponsors of this shameful legislation may say, this is a blatant example of using religion as a justification to discriminate, and the ACLU will fight to make sure it never becomes law.”

“It appears to be a false attempt or a failed attempt to make this legislation constitutional by making it seem they’re not just targeting LGBTQ people,” said Sarah Warbelow, legal director for the Human Rights Campaign.

Warbelow said there are concerns that religious-based nonprofits or groups that receive contracts or grants from the government to run homeless shelters, food pantries or counseling services, for example, could potentially refuse service to same-sex couples and not be punished.

Backers of the bill, however, argue it would only protect government employees who hold their views in a private manner, not if they act on them in their official capacity. There may be some exceptions, Carroll said, for government contractors, depending on the type of service they provide, such as a marriage counselor who was receiving federal funds and declined to counsel a same-sex couple. That person would potentially be able to keep receiving federal funds.

But the bill does not go deep into hypothetical situations and outline specific contractors that could potentially act on their religious beliefs without punitive action.

It’s unclear yet whether GOP leadership in the Senate or the Senate Judiciary Committee plan to take up the bill. The legislation, which touches on a highly-charged issue, was quietly rolled out without much public fanfare from its 21 co-sponsors, many of whom didn’t put out news releases or tweets highlighting their support for the bill.

As a candidate, President Donald Trump pledged to sign the First Amendment Defense Act, though Lee’s office had not heard from the White House about this particular bill, Carroll said.

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