Agreed.
That said, Judge Reeves's concern about "religious preference" in HB 1523
went beyond the "one side of same-sex marriage" issue. See Reeves Op. at 50
("Some Jewish and Muslim citizens may sincerely believe that their faith
prevents them from participating in, recognizing, or aiding an interfaith
marriage.... Why should a clerk with such a religious belief not be allowed
to recuse from issuing a marriage license to an interfaith couple, while
her coworkers have the full protections of HB 1523?"). To fully address
Judge Reeves's concerns, I think the FADA sponsors would have had to expand
protection to all religious beliefs about marriage. So extended, however,
the bill would likely lose any chance it previously may have had of passing
in the House.
The other dynamic I think is at work here is a tension between the
priorities of (1) achieving protection of religious dissenters though
exemption bills and (2) using exemption bills to resist Obergefell. FRC's
statement indicates that there will be reluctance among some FADA
supporters to sacrifice #2 to achieve #1.
- Jim
On Wed, Jul 13, 2016 at 3:52 PM, Michael Masinter <masin...@nova.edu> wrote:
> 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> 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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