The “both sides” language may be a response to Judge Reeves’ injunction against enforcement of Mississippi’s HB 1523. Judge Reeves enjoined enforcement of HB 1523 in part because, in his view, it created a discriminatory religious preference, protecting those who for religious reasons opposed same sex marriage but not those who for religious reasons favored it. Although the state has appealed his ruling and sought a stay of his injunction pending appeal, some FADA proponents might have thought it wise to account for it lest it fail in the House even before facing certain death in the Senate.
Mike Michael R. Masinter Professor of Law Nova Southeastern University 3305 College Avenue Fort Lauderdale, FL 33314 954.262.6151 masin...@nova.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Wednesday, July 13, 2016 6:29 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: New Version of Proposed First Amendment Defense Act Update: The Family Research Council has pulled it's support of FADA due to the change described below. https://www.frcaction.org/updatearticle/20160713/fada-concession It's been a very interesting week for FADA, between the RNC Platform Committee endorsement Monday, the House hearing yesterday, and conflicting messages from its supporters today (Heritage has invoked the "both sides" aspect of the revised FADA to defend it, while that is precisely what has led FRC to withdraw its support of the bill). - Jim On Wed, Jul 13, 2016 at 8:47 AM, James Oleske <jole...@lclark.edu<mailto:jole...@lclark.edu>> wrote: In the wake of yesterday's hearing on the proposed First Amendment Defense Act (FADA), which now has 171 co-sponsores in the House, there has been some confusion about the text of the bill. I believe the source of this confusion is the fact that the version discussed at the hearing was neither (1) the introduced version of the bill, which is the only version available on Congress.gov nor (2) the revised version of the bill posted by Senator Lee last September, which limited the definition of protected "persons" to exclude federal employees working within the scope of employment, for-profit federal contractors operating within the scope of their contract, and medical providers with respect to issues of visitation and provision of care. The version discussed at the hearing is available here: https://labrador.house.gov/uploads/First%20Amendment%20Defense%20Act%20-%20H.R.%202802%20-%20Revised%20ANS%20-%207-7-16.pdf In addition to including the modifications proposed by Senator Lee last September, the newest proposal appears designed to address concerns about viewpoint discrimination and equal protection by making the following modification to the first paragraph of the bill's operative section (new provision in all caps): "Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction that (1) marriage is or should be recognized as the union of (A) two individuals of the opposite sex; or (B) TWO INDIVIDUALS OF THE SAME SEX; or (2) extramarital relations are improper." As previously discussed on the list, "discriminatory action" is defined to include, among other things, "caus[ing] any tax, penalty, or payment to be assessed against." Under this latest modification to FADA, those with religious objections to facilitating opposite sex marriage (if any such individuals or entities exist) would have the same protection as those with religious objections to facilitating same-sex marriage. The bill's findings (Section 2) remain focused on religious objections to same-sex marriage. - Jim
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