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The First Amendment Defense Act (often abbreviated FADA) (H.R. 2802) is a bill introduced into the United States House of Representatives and United States Senate on June 17, 2015. The Senate sponsor of the bill is Mike Lee (R-Utah), and the House sponsor is Raul Labrador (R-Idaho).[1] The bill aims to prevent the federal government from taking action against people who discriminate against LGBTQ people for religious reasons.

The bill provides that the federal government "shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that 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."[1]

The FADA was introduced into both the House and Senate on the same day (June 17, 2015), by Mike Lee and Raul Labrador. As of November 21, 2016, the House version had 172 co-sponsors, and the Senate version 34.[1] Also as of that date, the House bill had not been considered by either of the two committees it had been referred to.[1]

When asked by Heritage Action, FRC Action, and the American Principles Project if they would pass the bill in their first 100 days in office, three of the top four Republican presidential candidates in the 2016 election said they would, the exception being Donald Trump.[2] It was also supported by the Family Research Council, the American Family Association, and the Liberty Counsel, among other groups, shortly after it was introduced.[3] On September 22, 2016, Republican presidential candidate Donald Trump changed his mind and said in a press release, "If I am elected president and Congress passes the First Amendment Defense Act, I will sign it to protect the deeply held religious beliefs of Catholics and the beliefs of Americans of all faiths."[4]

On July 21, 2015, the Los Angeles Times editorial board wrote that FADA was "unnecessary and could allow discrimination against gays and lesbians."[5] Later that year, Walter Olson of the Cato Institute wrote in Newsweek that the bill does not "try to distinguish rights from frills and privileges," and also criticized it for only protecting those who opposed same-sex marriage, not those who supported same-sex marriage or cohabitation or non-marital sex.[6] It has also been criticized by Ian S. Thompson, legislative director for the American Civil Liberties Union, who claimed that it would, if passed, "open the door to unprecedented taxpayer-funded discrimination against LGBT people."[3]

A version of the FADA was introduced in Georgia on January 21, 2016, by Greg Kirk, a Republican state senator.[7] The bill would, if passed, protect government employees who do not want to issue marriage licenses to same-sex couples because they object to the practice for religious reasons. Kirk cited Kentucky county clerk Kim Davis as an example of the people who would be affected by the law.[8] This bill was passed by the Georgia State Senate on February 19. The bill was then sent to the State House for consideration.[9][10] Governor Nathan Deal vetoed this bill in March 2016.[11]

An even more limiting bill[12] in Mississippi, HB 1523, was passed and would have gone into effect in 2016 had Judge Carlton Reeves not blocked the measure three days before it would have taken effect.[13]

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First Amendment Defense Act - Wikipedia

U.S. President-elect Donald Trump arrives to speak during a USA Thank You Tour event at Giant Center in Hershey, Pennsylvania, U.S., December 15, 2016. Lucas Jackson / Reuters

FADA would prohibit the federal government from taking "discriminatory action" against any business or person that discriminates against LGBTQ people. The act distinctly aims to protect the right of all entities to refuse service to LGBTQ people based on two sets of beliefs: "(1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage."

Ironically, the

On December 9, Sen. Lee's spokesperson, Conn Carroll, told

"Hopefully November's results will give us the momentum we need to get this done next year," Carroll said. "We do plan to reintroduce FADA next Congress and we welcome Trump's positive words about the bill."

"During oral arguments in Obergfell, President Obama's solicitor general admitted that if a right to same-sex marriage were created, religious institutions, including many Catholic schools, could have their tax exempt status revoked by the IRS," Carroll told NBC Out on Wednesday. "The First Amendment Defense Act was created to make sure that does not happen."

But while Carroll claims "FADA in no way undermines federal or state civil rights laws," it would take away the government's recourse in terms of punishing businesses, institutions or individuals who break civil rights law by discriminating against LGBTQ people.

Jennifer Pizer, Law and Policy Director at Lambda Legal, told NBC Out FADA "invites widespread, devastating discrimination against LGBT people" and is a deeply unconstitutional bill.

"This proposed new law violates both Equal Protection and the Establishment Clause by elevating one set of religious beliefs above all others," Pizer said, "And by targeting LGBT Americans as a group, contrary to settled constitutional law."

Pizer warned that the bill's language also left room for individuals and businesses to discriminate against unwed heterosexual couples and single mothers, because of the clause stating that "sexual relations are properly reserved" to marriage between a man and a woman.

"There cannot be even one iota of doubt that this bill endorses one set of religious beliefs above others, and targets people in same-sex relationships, married or not, as well as unmarried heterosexual couples who live together," Pizer said. "It's an unconstitutional effort to turn the clock back to a time when unmarried mothers had to hide in shame, and LGBT people had to hide, period."

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FADA was first filed in the House and Senate in 2015, but was met with protests from Democrats and resulted in just one House hearing amid concerns that Obama would veto the bill. It is currently co-sponsored by 171 House Republicans and just one Democrat (Daniel Lipinski of Illinois.)

State-level legislation similar to FADA has failed in recent years, usually resulting from lawsuits and nationwide boycotts. When Vice President-elect Mike Pence passed a "religious freedom" bill as governor of Indiana in March 2015, it was met with

Mississippi's

A lawsuit brought by Mississippi religious leaders alleges the state law actually violates religious freedom by determining that religious belief necessitates anti-LGBTQ discrimination. The group of ordained ministers suing the state said in the lawsuit,

Barber v. Bryant is currently at the Fifth Circuit Court of Appeals, after a federal trial court ruled HB 1523 violates the federal Equal Protection and Establishment Clauses. Pizer said the case stands as an example of the legal explosion that would occur in reaction to FADA.

"If Congress were to pass the federal FADA as currently written, and the next president were to sign it into law, I'm confident heads would spin at how fast the constitutional challenges would fly into court," Pizer said, adding "we're likely to have a great many allies because these attempts to misuse religion for discrimination offend enormous numbers of Americans who cherish both religious liberty and equality for all."

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First Amendment Defense Act Would Be 'Devastating' for LGBTQ ...

Here's what you should know about President-elect Donald Trump's Nov. 29 tweet calling for a ban on burning the U.S. flag. (Sarah Parnass/The Washington Post)

The president-elect woke up Tuesday morning with a clear agenda before him. Poised to announce his pick of Rep. Tom Price to lead the Department of Health and Human Services and with a day of meetings slated including one with onetime foe Mitt Romney Donald Trump hopped on Twitter to talk about where his attention was focused.

Disparaging CNN and more unexpectedly reigniting the once-virulent debate over flag-burning.

Where this came from is anybodys guess. (Update: Apparently it overlapped with a Fox News segment.) Theres an operating theory among some that Trump throws out tweets like this to distract attention from something else, as though 140-character messages demand our total (100 percent) brain capacity. On MSNBCs Morning Joe, host Joe Scarborough speculated that maybe Trump was tossing a bit of red meat to the angry social media lions before announcing that he would pick Romney as secretary of state.

The suggestions of this tweet and the context in which it was issued, though, make it far from just a simple distraction.

Flag-burning is not an issue that has occupied a central position in the American political consciousness of late. Its absolutely the sort of fight that Trump would relish, mind you, pitting egghead supporters of free speech and the First Amendment against the patriotism of people who find flag-burning unacceptable.

Some quick history is in order. Fights over how the flag is depicted have been fought at the Supreme Court for more than a century, including the 1989 decision Texas v. Johnson which established that burning the flag was a constitutionally protected act.

One of the justices who supported that 5-4 decision was Antonin Scalia, the jurist whose death earlier this year created the vacancy that it seems Trump will get to fill with someone, he has said, he hopes will be in the mold of Scalia. Scalia also voted to protect flag-burning when Congress passed a national law hoping to avoid the problems of Texas v. Johnson even though he found the practice to be repugnant.

If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag, he said last year, adding an important disclaimer: But I am not king. In an interview with CNN, he explained the distinction simply: Flag-burning is a form of expression, and therefore is protected by the First Amendment.

A group of demonstrators, many carrying American flags, gathered on Nov. 27 outside the campus of Hampshire College in Massachusetts. (Instagram/@axle_maximus via Storyful)

Congress has tried to work around the decision. Shortly afterward, it passed a law banning flag-burning, which was again thrown out (with Scalias agreement). A decade ago, the Senate narrowly failed to approve a constitutional amendment banning flag-burning, with now-Senate Majority Leader Mitch McConnell (R-Ky.) voting in opposition.

If there is a bedrock principle underlying the First Amendment, Justice William Brennan wrote in response to the decision to strike down the 1989 federal law, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

Trump doesnt seem to adhere to this idea. He has railed against the oppositional media repeatedly, suggesting at one point that he might open up libel laws to make it easier to sue the media. He disparaged protests earlier this month as being incited by the press and being illegitimate because the protesters were paid (a claim for which theres no evidence). When protesters in Chicago disrupted one of his rallies, he suggested that they should be thrown in jail. His proposals to address the threat of terrorism often seem to tiptoe beyond the free-expression-of-religion boundaries established in the Bill of Rights.

When Trump finds free expression offensive or disagreeable, he seeks to curtail it and, in some cases, impose harsh penalties. The suggestion that those who burn flags should lose their citizenship is remarkable in part because its such a drastic response one that would itself rescind any number of legal protections to which the culprit would otherwise be entitled. Incidentally, this suggested punishment is barred as a result of a 1958 decision from the Supreme Court, as Louis Nelson notes at Politico.

Weve often seen Trump dash off a Twitter opinion that goes no further. Theres a fair argument to be made that, in the absence of any broader debate or proposed policy, this tweet about the flag should be treated as a curiosity. But it comes on the heels of Trump tweeting about how the results of the election should be questioned because of fraud (something that, again, lacks evidence). Its a pattern of pushing back against fundamental pillars of our democracy: elections, free speech, Supreme Court decisions. He has every right to do so, of course. If nothing else, thats important context. And it reinforces a desire to treat those who oppose him or his values harshly, even when he lacks the power to do so.

Why now? Who knows. Given the attention he has paid of late to casting his opponents in a negative light (like those claims about voter fraud that were the subject of his tweets Monday), perhaps he wants to force them to defend an unpopular position. Perhaps he even hopes that protesters will appear outside Trump Tower and burn flags. That certainly wouldnt hurt his efforts to rally support from otherwise indifferent Americans.

Anyway. Time for Trump to tick off the next items on his to-do list. Something about putting together a government? With the important stuff done, might as well move on to that.

More from The Fix:

Why we cant and shouldnt ignore Donald Trumps tweets

A running list of how Donald Trumps new position may be helping his business interests

Steve Bannon once suggested only property owners should vote. What would that look like?

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Donald Trump v. the First Amendment, Part 5

A Donald Trump presidency is raising concerns about First Amendment protections. Trump has accused the media of bias, limited access during his transition and spoken out against protesters. Meanwhile, the social media site Twitter purged hundreds of users associated with white supremacy. But what does the U.S. Constitution actually say about the right to free speech, expression and assembly?

Its been just a few weeks since Donald Trump was elected President of the United States and protests like this Tallahassee rally have occurred across the country. Ana Gomez, a Florida State University student, says in her native country of Cuba, rallies like this arent allowed, which is why she worries there could be a crackdown under the incoming administration.

"Its not so much the problem of what Trump would do; what a Pence vice presidency would do, Gomez said. Its more of the, what Mitt Romney called trickle down violencethe thing that there might not be accountability in places were there would be accountability before to deal with violence in our communities.

Across the street, theres another rally.

Listen to the story here.

Military Veteran Jay Mears is with a smaller group on the other side of the street. Mears said, Im counter-demonstrating a protest, any Trump protest, exercising my First Amendment rights to counter-protest. And do it peacefully. Both groups are exercising their First Amendment rights. Mears is not pleased about it, but as Rich Templin notes, the First Amendment protects both those who agree, and those who dont. Templin is the Legislative and Political Director of the Florida AFLCIO.

The First Amendment is what guarantees our ability to say, you know, our president stinks and is doing a terrible job.

It also is what guarantees the rights of our oppressed and our media to hold the media to hold government accountable and to serve as a watchdog, Templin said. It ensures that there is no establishment of a state religion, something that is connected to government.

But, Templin says certain First Amendment protections, such as the freedom of speech, dont mean freedom from consequence.

Templin continued, I dont think weve seen that, at least with the Trump campaign, and now with the Trump administration, not willing to accept that when you are saying these people are bad, as a class or these people should be banned, as a group, or as a class and then supporters go out, and act on that, and act as if these people are less than human, act as if these people pose a fundamental security challenge to the United States. And then nobody takes responsibility for it. Its just, oh, well thats just a troubled individual who was violent. I think that everybody has to take responsibility for what they say out loud in public.

Templin worries more about the clash of religion. Ongoing wars in the Middle East coupled with high profile terrorism attacks have generated a backlash against Muslims. The Supreme Courts decision to back gay marriage has been met with religious protection bills in state legislatures that some argue allow discrimination rather than protect against it.

Lets say we did have prayer in school. What prayer would it be? Templin asked. Which denomination would control the prayer that was allowed? Lets say that we did continue to blur the lines between Church and State. That would inevitably lead to one set of beliefs winning out over other sets of beliefs. Thats what this First Amendment was for, was to say, hey, were gonna keep religion out of the state because there will always be winners and losers, and we dont want people of faith to be losers. We just want the government to stay out of it, that way, they are protected.

Francine Huff, a journalism professor at Florida A&M University worries access to information is being eroded. She believes President Elect Donald Trumps restriction on media access coupled with his use of social media could become a problem.

The news industry as a whole has been struggling in recent years with exactly what is the future of the media industry, Huff said. I think that the Trump presidency is a game changer, I think his social media is something that has to be watched going forwardit certainly play a large role in his campaign.

Much of the campaign discourse as well as transition information is coming through the use of twitter. And the company made headlines when it booted users it says are associated with the Alt-Right. The move struck free speech advocates as wrong, but, American Civil Liberties Union Attorney Esha Bhandari says its important to understand the First Amendment protects against government action to restrict speech or protest.

Huff notes, twitter is a private company, saying, Private individuals remain free to engage in certain actions that the government cannot do when it comes to shutting down speech.

Bhandari says that in her line of work, its not about what she or her colleagues consider right or wrong--the ACLU stands behind the fundamental components of the First Amendment at all costs.

The ACLU will often represent groups that convey a message that we dont agree with, but because the principle is so important we think it's critical to stand up against government power and censorship in whatever form it takes.

The First Amendment protects you from having a religion imposed on you, just as it protects you to practice your own religion. It allows for people to assemble and protest. It protects freedom of speech, even speech some might not like. What it doesnt protect, however, is what happens next. The consequences. Perhaps this is something to keep in mind approaching this holiday season, filled with round tables of dissenting opinions.

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First Amendment On Solid Ground Despite Concerns About ...

Preamble

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

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First Amendment Rights - aclu.org