Professors slug it out on Capitol Hill over religious liberty

A Columbia law professor testified before congress Tuesday in a highly anticipated hearing for a bill to protect religious liberties, saying the First Amendment's Free Exercise Clause allows for religious belief but not religiously motivated action.

The bill, known as the First Amendment Defense Act (FADA), would protect individuals and organizations that continue to maintain sincerely held religious beliefs or moral convictions about marriage, and would ensure that the federal government treats fairly those who do hold such beliefs.

In practice, FADA would allow religious institutions to, for example, refuse to provide health insurance coverage to dependents of same-sex or unmarried couples, or withhold health insurance coverage for contraceptives, which many argue would be a violation of the Affordable Care Act.

As such, without FADA, many religious colleges and universities risk jeopardizing their tax-exempt statuses or losing federal funds if they continue to uphold practices that recognize a traditional definition of marriage.

Professor Katherine Franke of Columbia Law School, however, argued at Tuesday’s hearing that “religious liberties are already well protected” in America.

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“Thus, rather than ‘defending’ the First Amendment, FADA in fact contradicts a basic tenet of the First Amendment’s Free Exercise Clause: while religious belief is absolutely protected, religiously motivated actions are not,” she asserted, yet failed to explain the distinction she was drawing between “exercise” and “action.”

Franke based a portion of her argument on a list of Supreme Court precedents that apparently confirm that “religious freedom does not provide an unconditional right to act in accordance with one’s beliefs, religious, moral, or otherwise,” as stated in an 1878 ruling in which the Court determined that a Mormon man did not have the religious authority to enter a polygamous marriage.

Franke also suggested that FADA would violate the First Amendment’s Establishment Clause, saying “religious accommodations that cause meaningful harm to other private citizens” would be a clear violation.

Jim Obergefell, the lead plaintiff in the Supreme Court’s landmark ruling in Obergefell v. Hodges, defended Franke’s characterization of the current state of religious liberty in America, adding that FADA would be “sweeping, taxpayer funded discrimination” against the LGBT community.

Professor Matthew Franck of The Witherspoon Institute, however, noted that FADA “gives no preferred standing to one religious viewpoint over another,” nor does it prevent anyone from getting married, but simply protects “full freedom of conscience” for religious believers.

Indeed, in his expanded statement, Franck calls objections to FADA from the Establishment Clause an “absurd criticism,” arguing that giving “additional legal protection to freedom of religion is in no way an ‘establishment’ of religion.”

In fact, Franck takes it even one step further and writes that FADA would have the exact opposite effects that his colleagues suggested, and would actually “prevent the federal government from endorsing a particular set of hotly contested views and compelling everyone within its reach to conform their conduct to those views of marriage and sexual ethics.”

To the contrary, Franck writes, FADA would leave all those affected by it “perfectly free to live as they please,” calling it the “most significant pro-liberty legislation to be considered by Congress in recent memory.”

Similarly, Kristen Waggoner, Senior Vice President of the Alliance Defending Freedom, said the bill would protect “freedoms for the religious and for the non-religious alike.”

FADA’s passage, she argued, is important not only for religious freedom, but for all other freedoms enjoyed by Americans, saying “civil liberties travel together.”

“Its loss signals the loss of other freedoms sure to follow,” she added, concluding that FADA “ensures that tolerance remains a two-way street.”

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