U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

23–645 PDF 2017

RELIGIOUS LIBERTY AND H.R. 2802, THE FIRST 

AMENDMENT DEFENSE ACT (FADA) 

HEARING 

BEFORE THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JULY 12, 2016 

Serial No. 114–121 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 


KING-6430 with DISTILLER
(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

CYNTHIA M. LUMMIS, Wyoming 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

WILL HURD, Texas 

GARY J. PALMER, Alabama 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MATT CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

BONNIE WATSON COLEMAN, New Jersey 

STACEY E. PLASKETT, Virgin Islands 

MARK DESAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

JENNIFER HEMINGWAY, Staff Director 

DAVID RAPALLO, Minority Staff Director 

KATIE BAILEY, Staff Director, Subcommittee on Government Operations 

WILLIE MARX, Clerk 


KING-6430 with DISTILLER
(III) 

C O N T E N T S 

Page 

Hearing held on July 12, 2016 ............................................................................... 1 

WITNESSES 

Hon. Mike Lee, U.S. Senator from the State of Utah 

Oral Statement ................................................................................................. 5 

Hon. Raul Labrador, U.S. Representative from the State of Idaho 

Oral Statement ................................................................................................. 8 

Mr. Barney Frank, Former U.S. Congressman, Massachusetts Fourth Congressional District 

Oral Statement ................................................................................................. 11 

Written Statement ............................................................................................ 14 

Mr. Kelvin Cochran, Former Fire Chief, Atlanta Fire Department 

Oral Statement ................................................................................................. 18 

Written Statement ............................................................................................ 21 

Mr. Jim Obergefell, Appearing in Personal Capacity 

Oral Statement ................................................................................................. 26 

Written Statement ............................................................................................ 28 

Ms. Kristen Waggoner, Senior Counsel and Senior Vice President, U.S. Legal 

Advocacy, Alliance Defending Freedom 

Oral Statement ................................................................................................. 31 

Written Statement ............................................................................................ 33 

Ms. Katherine Franke, Isidor and Seville Sulzbacher Professor of Law, and 

Director, Center for Gender and Sexuality Law, Columbia School of Law 

Oral Statement ................................................................................................. 43 

Written Statement ............................................................................................ 44 

Mr. Matthew J. Franck, Appearing in Personal Capacity 

Oral Statement ................................................................................................. 63 

Written Statement ............................................................................................ 67 

APPENDIX 

United States District Court for the Southern District of Mississippi Northern 

Division Opinion on the case: Rims Barber; Carol Burnett; Joan Bailey; 

Katherine Elizabeth Day; Anthony Laine Boyette; Don Fortenberry; Susan 

Glisson; Derrick Johnson; Dorothy C. Triplett; Renick Taylor; Bandilyne 

Mangum-Dear; Susan Mangum; Joshua Generation Metropolitan Community Church; Campaign for Southern Equality; and Susan Hrostowski V. 

Phil Bryant, Governor; Jim Hood, Attorney General; John Dais, Executive 

Director of the Mississippi Department of Human Services; and Judy 

Moulder, State Registrar of Vital Records, Entered by Ranking Member 

Cummings ............................................................................................................. 116 

Written Statement of David Stacy, Government Affairs Director, Human 

Rights Campaign, Entered by Ranking Member Cummings ........................... 149 

A letter from 50 Organizations titled, ‘‘Cancel July 12 Hearing on Discriminatory Anti-LGBT Bill’’, Entered by Ranking Member Cummings ..................... 155 

A letter from Stosh Cotler, CEO, Bend the Arc Jewish Action, to Chairman 

Chaffetz and Ranking Member Cummings, Entered by Ranking Member 

Cummings ............................................................................................................. 158 

A letter from David Stacy, Government Affairs Director, Human Rights Campaign, to Chairman Chaffetz and Ranking Member Cummings ...................... 159 

Written Statement from Carmel Martin, Executive Vice President, Policy, 

Center for American Progress ............................................................................. 185 


KING-6430 with DISTILLER
Page

IV 

Letter from Karin Johnson, Director, Washington Legislative Office, and Ian 

Thomson, Legislative Representative at the American Civil Liberties Union 

to Chairman Chaffetz and Ranking Member Cummings ................................. 191 

National LGBTQ Task Force Action Fund Testimony Regarding the First 

Amendment Defense Act from Candace Bond-Theriault, ESQ, LL.M., Policy 

Counsel, Reproductive Rights, National LGBTQ Task Force, Entered by 

Ranking Member Cummings .............................................................................. 195 

Testimony of Maggie Garrett, Legislative Director of Americans United for 

Separation of Church and State, Entered by Ranking Member Cummings ... 203 

Statement of the National Center for Lesbian Rights, Entered by Ranking 

Member Cummings .............................................................................................. 209 

Letter from Gregory T. Angelo, President of Log Cabin Republicans, to Chairman Chaffetz and Ranking Member Cummings, Entered by Ranking Member Cummings ...................................................................................................... 213 

Letter from Emily J. Martin, Vice President of Workplace Justice & Health, 

at the National Women’s Law Center, to Chairman Chaffetz and Ranking 

Member Cummings, Entered by Ranking Member Cummings ....................... 214 

A letter from Representative Barry Loudermilk, Representative Lynn Westmoreland, Representative Tom Price, Representative Austin Scott, and Representative Jody Hice to Kasim Reed, Mayor of Atlanta, Entered by Representative Jody Hice ........................................................................................... 216 

H.R. 2802 Bill Text, Entered by Chairman Chaffetz ............................................ 218 


KING-6430 with DISTILLER
(1) 

RELIGIOUS LIBERTY AND H.R. 2802, THE 

FIRST AMENDMENT DEFENSE ACT (FADA) 

Tuesday, July 12, 2016 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

WASHINGTON, D.C. 

The committee met, pursuant to call, at 10:04 a.m., in Room 

2154, Rayburn House Office Building, Hon. Jason Chaffetz [chairman of the committee] presiding. 

Present: Representatives Chaffetz, Duncan, Jordan, Walberg, 

Amash, Gosar, DesJarlais, Farenthold, Lummis, Massie, Meadows, 

Mulvaney, Buck, Walker, Blum, Hice, Russell, Carter, Grothman, 

Hurd, Palmer, Cummings, Maloney, Norton, Lynch, Connolly, Cartwright, Duckworth, Kelly, Lawrence, Lieu, Watson Coleman, 

Plaskett, and Lujan Grisham. 

Chairman CHAFFETZ. The Committee on Oversight and Government Reform will come to order. And without objection, the chair 

is authorized to declare a recess at any time. 

I thank you all for being here. This is an important topic. It is 

an important subject. I know we don’t necessarily all agree and see 

it the same way. But that is why we have vibrant discussion. That 

is what we do in this country is we talk about it in a professional 

way, in a civil way, and we have this discussion. 

And so I want to thank the witnesses. We have done something 

that is unprecedented, and a number of witnesses that the Democrats have asked for are all here. We have a rather large and distinguished panel. We are going to have a good and vibrant discussion. 

I did notice when we came in that there were a number of—at 

least a few signs and whatnot. We are responsible to keep the rules 

and decorum. If you want to show off those signs and wave them 

and do all you want, you can do that right now, but as we get going 

during the hearing, I would ask that you please refrain from doing 

so. It is part of the way we have a good, fair discussion on these 

issues. So if you have those signs, you are free to show them right 

now, wave them all you want, but to do so during the hearing 

while somebody is speaking is not the level of respect that we 

would ask from everybody on both sides of this important issue. 

So protecting the sacred right to freely exercise your religion is 

the First Amendment to the Constitution for a reason. It has been 

and still is a fundamental part of the foundation of our nation. 

The First Amendment Defense Act, or FADA, has some very important goals. Legislation is intended to ensure the tax-exempt status of religious institutions is not unfairly threatened. This was an 


KING-6430 with DISTILLER
2 

issue acknowledged by the solicitor general during arguments before the Supreme Court. When asked by Justice Alito whether a religious institution could lose its tax-exempt status if it opposed 

same-sex marriage, the solicitor general responded, ‘‘I don’t think 

I can answer that question without knowing more specifics, but it 

is certainly going to be an issue. I don’t deny that, Justice Alito, 

it is going to be an issue.’’ 

And I do believe that this is an issue that needs to be addressed. 

FADA attempts to ensure that no one is discriminated against 

based on how they view marriage. I am an original cosponsor of 

this piece of legislation. There have been some updates to this legislation. So if you are looking at the older piece of legislation, I 

would highly encourage you as swiftly as you can to go online at 

Raul Labrador, who is testifying who is the House sponsor of this 

bill has posted this online. And I would encourage anybody who is 

in the listening audience to look at that most recent version of this 

important bill. 

I recognize the sensitive nature of this, the emotion that is attached to it, but I hope that today doesn’t divide into too much of 

a politically charged discussion about what divides us. But it is important for me and my vantage point, just because you are for one 

thing doesn’t mean you are against another thing, and that is an 

important distinction. 

It is also important to me that we have the right to freely exercise religion. Religion is part of the foundation of this nation. Religion is part of what so many Americans believe in. But it is their 

choice to believe in it. It does not mean I want to hurt or strip 

somebody else of their rights, their pursuit of happiness. 

As Members of Congress, we have a responsibility to engage in 

a way that is consistent with what the First Amendment teaches 

us, to be open-minded and respectful of all Americans’ experiences 

and beliefs, especially when they disagree. And today we have that 

opportunity to have this vibrant discussion and lead by example. 

Chairman CHAFFETZ. We are fortunate to have the two sponsors 

of FADA that are here. Senator Lee is the Senate sponsor, a colleague of mine from the great State of Utah. We also have Representative Raul Labrador, who is the House sponsor, who is here 

to share some things. 

It is consistent with House practice we typically in the past have 

allowed House and Senate Members to come present on a separate 

panel and then, given the pressures and the few days that we have 

remaining before the recess period here, we typically will excuse 

them so that they can continue on with their duties and responsibilities. Given the second day here, we have a lot of hearings and 

a lot of other business happening, so we are going to ask them that 

they give their opening statements. Then we will excuse them, but 

we will continue with the rest of the panel for their opening statements and their questions along the way. 

It is an important discussion. I am glad we are having it. I appreciate them introducing this bill. I now recognize the ranking 

member, Mr. Cummings. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

Mr. Chairman, today is a terribly sad day for the LGBT community and for all of America. Today is the 1-month anniversary of 


KING-6430 with DISTILLER
3 

the deadly shooting spree at the Pulse nightclub in Orlando, Florida, that killed 49 people and injured dozens of others, 1 month 

ago. 

Throughout the day today there will be commemorations across 

the country. In fact, Members of Congress are holding a vigil this 

evening on the steps of the United States Capitol. With everything 

going on in this country right now, these horrific shootings of gay 

people, black people, police officers, what we should be doing is 

coming together as a nation, not tearing each other apart, which 

is exactly what this bill does. 

As I sit here now, it is difficult to imagine a more inappropriate, 

a more inappropriate day to hold this hearing. Even if you truly 

believe that being gay is morally wrong or that people should be 

allowed to discriminate against gay people, why in the world would 

you choose today of all days to hold a hearing on this discriminatory legislation? 

To say that this hearing is politically tone-deaf is the understatement of the year. And I do not believe that the chairman did this 

intentionally. He may not have even realized before the week that 

today is the 1-month anniversary. But we asked repeatedly to cancel today’s hearing or at least postpone it. And dozens of groups 

and other stakeholders made the same request in letter after letter 

after letter to the committee, all without success. 

Mr. Chairman, I ask unanimous consent to place into the record 

the letters and statements from 77 groups and organizations relating to today’s hearing. 

Chairman CHAFFETZ. Without objection, so ordered. 

Mr. CUMMINGS. It is actually 80, Mr. Chairman. We got three 

more. 

Chairman CHAFFETZ. Without objection, so ordered. 

Mr. CUMMINGS. Thank you. I also ask unanimous consent to 

place into the record a letter opposing this legislation signed by 

more than 3,000 faith and clergy from across the country. 

Chairman CHAFFETZ. Without objection, so ordered. 

Mr. CUMMINGS. At any rate, we are here now. For the record, I 

do want to thank the chairman for agreeing to our request to have 

three minority witnesses on the panel. I truly appreciate it. It is 

much more balanced, and I commend the chairman for agreeing to 

our request. 

We are honored to have with us today our former colleague and 

distinguished friend in the House of Representatives, Congressman 

Barney Frank. 

We are also very honored to have Jim Obergefell, the lead plaintiff in the Supreme Court’s recent case legalizing same-sex marriage. He has a very important and poignant story, and we thank 

him for being here today. 

Finally, our third witness is Katherine Franke, a nationally renowned legal expert and director of the Center for Gender and Sexuality Law at Columbia Law School. And I thank you as well. 

I would like to address my remaining comments to Senator Lee 

and Representative Labrador, the two Members of Congress who 

are here today sponsoring this legislation in the Senate and the 

House. I had hoped that we would have had the opportunity to ask 

you questions about why you believe your bill is a good idea, but 


KING-6430 with DISTILLER
4 

now I understand that you will not be taking any questions from 

members of the committee. So I would like to ask just one question 

now so that you might address it in your opening statement. 

I am the son of two Pentecostal ministers, and I strongly believe 

that people have the right to freely express their religious beliefs. 

Senator Lee and Congressman Labrador, my question for you is 

simply this: What is the difference between discriminating against 

someone who is black and someone who is gay? For centuries in 

our nation a black person could not marry a white person. Those 

in power justified this doctrine on religious grounds, and they codified it in our laws. But in 1967 the Supreme Court changed all that 

in the case of Loving v. Virginia. The Court held that this discrimination is unconstitutional. 

Now, we have a similar situation with same-sex couples. For centuries, gay people could not marry. This discrimination was also 

justified on religious grounds, and it was also codified in our statutes. But last year, nearly 50 years after the decision in Loving v. 

Virginia, the Supreme Court ruled that this discrimination is also 

unconstitutional. I acknowledge that this change is a major change, 

and this change is very difficult. But the paramount lesson we have 

learned over our nation’s history is that if we are separate, we will 

never be equal. That is the lesson we should be reinforcing across 

our great country every single hour of every single day, especially 

now. And that is the lesson I hope our committee takes to heart 

today. And with that, Mr. Chairman, I yield back. 

Chairman CHAFFETZ. I thank the gentleman. I will hold the 

record open for 5 legislative days for any members who would like 

to submit a written statement. 

Let us now recognize our panel of witnesses. We are pleased to 

welcome the Honorable Mike Lee. He is a United States Senator 

from the State of Utah and author of the First Amendment Defense 

Act in the United States Senate. 

We also have the Honorable Raul Labrador. He is a United 

States Congressman from the First Congressional District of Idaho 

and the author of the First Amendment Defense Act in the House 

of Representatives. 

We are pleased to have the Honorable Barney Frank, former 

United States Congressman from the Fourth Congressional District 

of Massachusetts. I had the pleasure of serving with Mr. Frank 

while he was here. I overlapped a little bit, and pleased, sir, that 

you would join us here for this important discussion. 

We are going to go out of order here a little bit because we are 

going to have Mr. Hice—actually, why don’t we recognize Mr. Hice 

to introduce Mr. Cochran at this point. 

Mr. HICE. Thank you, Mr. Chairman. It is a great honor that I 

have to introduce and welcome former fire chief of Atlanta Kelvin 

Cochran. Thank you for joining us today, sir, on this hearing on religious liberties. 

Chief Cochran served for roughly 34 years, an extremely decorated career. He was, for example, brought to New Orleans right 

after the Hurricane Katrina and the devastating effects there and 

did an outstanding job. He also held positions with the International Association of Fire Chiefs and was appointed by President 

Obama as a U.S. fire administrator between 2008 and 2010. And, 


KING-6430 with DISTILLER
5 

Chief Cochran, we have had the opportunity to serve and do different things for the last couple of years, and I just want to say, 

first of all, thank you for your service to our country. Thank you 

for your willingness to be here today, and it is a great honor to introduce former Atlanta Fire Chief Kelvin Cochran. Thank you. 

Chairman CHAFFETZ. I thank the gentleman. We thank Mr. 

Cochran for being here as well. 

We have Mr. John Obergefell, who is appearing in his personal 

capacity. He is a plaintiff in the landmark Supreme Court marriage equality case Obergefell v. Hodges and the coauthor of Love 

Wins. We thank you, sir, for being here as well. 

Ms. Kristen Waggoner, who is senior counsel and senior vice 

president of the United States Legal Advocacy at the Alliance Defending Freedom. In this role Ms. Waggoner oversees a team specializing in civil liberties legislation and education. And we appreciate you being here. 

Ms. Katherine Franke is the Isidor and Seville Sulzbacher professor of law and director of the Center of Gender and Sexuality 

Law at the Columbia School of Law and the faculty director of the 

Public Rights/Public Conscience Project. I hope I pronounced all of 

that properly. I was trying. But thank you, Ms. Franke, for being 

here with us as well. 

And we have Mr. Matthew Franck, a lot of Franks on the panel, 

but Mr. Matthew Franck, a Ph.D. who is appearing in his personal 

capacity. In his professional capacity, Mr. Franck is the director of 

the William E. and Carol G. Simon Center on Religion and the 

Constitution at the Witherspoon Institute at Princeton University. 

And so we thank you for being here as well. 

Pursuant to committee rules, all non-Members are to rise and 

raise their right hand. It is optional for Members of Congress in 

this portion of it, but we would ask that everybody on the panel 

please rise and raise your right hand. 

[Witnesses sworn.] 

Chairman CHAFFETZ. Thank you. You may be seated. Let the 

record reflect that the witnesses answered in the affirmative. 

We are now going to recognize each person for 5 minutes, again, 

with Senator Lee and Congressman Labrador, we thank you for 

being here. We will recognize you and then, please, you are excused 

to deal with the business of Congress. But we will start first with 

Senator Mike Lee. 

STATEMENT OF HON. MIKE LEE, A UNITED STATES SENATOR 

FROM THE STATE OF UTAH 

Senator LEE. Chairman Chaffetz, Ranking Member Cummings, 

and members of the Judiciary Committee, thank you for holding 

this hearing and thank you for giving me the opportunity to come 

and testify before this hearing in support of the First Amendment 

Defense Act. It’s an honor to be here and to participate with my 

fellow witnesses on this important discussion. 

I’d like to preface my remarks today by issuing a challenge to all 

of those who were involved in this debate here on Capitol Hill and, 

for that matter, across the country, myself included. As we engage 

in dialogue with one another about this topic, this topic which happens to be highly charged, let’s commit to treating one another 


KING-6430 with DISTILLER
6 

with respect, with kindness, and with decency, as fellow citizens 

rather than as adversaries. Let’s insist on hashing out our honest 

differences honestly. It’s too easy to assume the worst in those with 

whom you disagree, to impugn their motives so you don’t have to 

listen to their arguments. Let’s be better than that today. We all 

came here to talk, but let’s not forget to listen just because we’re 

here to talk. 

And with that, I’m going to spend a few more minutes talking 

now. 

The most important feature of this legislation, which I was proud 

to introduce in the Senate, the First Amendment Defense Act, is 

its exceptionally narrow scope. If enacted, the bill would do one 

thing. It would do one thing only, just one thing. That is, it would 

prevent the Federal Government from discriminating against particular disfavored religious beliefs. 

There are other forms of discrimination in the world, for instance, the discrimination that may occur between two private parties, two people who are not the government. But these are entirely 

different issues, and those types of actions are completely unrelated 

to and unaffected by the First Amendment Defense Act. This bill 

deals exclusively with a particular but a rather pernicious form of 

discrimination, one in which the Federal Government could single 

out certain religious beliefs for disfavored treatment. 

The bill is so narrowly focused because it is a targeted response 

to particular legal developments that have taken place just in the 

last year or so. In the wake of last year’s decision by the Supreme 

Court in the same-sex marriage case, Obergefell v. Hodges, many 

millions of Americans were left wondering: What does this mean 

for me? What does this mean for me personally and for my family, 

for how I live my life? There were many who wondered what the 

Court’s decision might mean for countless institutions that play a 

significant role in our civil society, including churches and synagogues; charities and adoption agencies; counseling services and religiously affiliated schools, colleges, and universities that are made 

up of American citizens who believe marriage is the union between 

one man and one woman. For instance, now that the Supreme 

Court had discovered a constitutional right to same-sex marriage, 

would a school that holds the belief that marriage is the union of 

one man and one woman be in danger of losing its tax-exempt status? Would it be deemed no longer performing a charitable function 

simply because it had that religious belief? 

More than one year after the Supreme Court’s ruling in the 

Obergefell case, these questions remain unanswered. On the one 

hand, the Court’s majority opinion in the Obergefell case reiterated 

the meaning of religious liberty that has always been understood 

in America when it stated, ‘‘The First Amendment ensures that religious organizations and persons are given proper protection as 

they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’’ 

But on the other hand, there was the ominous exchange referred 

to by Chairman Chaffetz a few moments ago between Supreme 

Court Justice Samuel Alito and Solicitor General Donald Verrilli 

during oral arguments in that case that seemed to suggest that the 

Obama administration would be comfortable with the notion that 


KING-6430 with DISTILLER
7 

the IRS could revoke the tax-exempt status of religious institutions, 

including schools, colleges, and universities, that maintain the traditional definition of marriage. 

The First Amendment Defense Act is a very narrow and very targeted legislative response to these questions, these still-unanswered but nonetheless very important questions. The bill reaffirms the letter of the First Amendment. It also strengthens the 

spirit of the First Amendment. And it does so by stating unequivocally that the Federal Government may not revoke or deny the 

Federal tax exemption or any grant or contract, accreditation, license, or certification to any individual or to any institution based 

on a religious belief about marriage. 

The First Amendment protects each of us from punishment or reprisal from the Federal Government for living in accordance with 

our deeply held religious and moral convictions. Adhering to these 

convictions should never disqualify an individual from receiving 

Federal grants, contracts, or tax status. What an individual or an 

organization believes about marriage is not and never should be 

any of the government’s business, and it certainly should never be 

part of the government’s eligibility rubric in distributing licenses, 

awarding accreditations, or issuing grants. 

And the First Amendment Defense Act simply ensures that this 

will always be true in America, that Federal bureaucrats will never 

have the authority, the discretion to require those who believe in 

the traditional definition of marriage to choose between living in 

accordance with those beliefs on the one hand and on the other 

hand maintaining their occupation, their tax status, or their eligibility to receive and obtain grants, licenses, or contracts. 

The First Amendment Defense Act is absolutely critical to the 

many charitable and service organizations in this country whose 

convictions about marriage are fundamental to their work and to 

their mission. Guaranteeing the full protection of these organizations’ First Amendment rights will ensure that faith-based adoption agencies are not forced to discontinue their foster care and 

adoption services on account of their belief that every child needs 

a married mother and father. It will protect religiously affiliated 

schools, colleges, and universities from losing their accreditation or 

being compelled to eliminate housing options for students. And it 

will protect individuals, regardless of their beliefs about marriage, 

from being deprived of eligibility for Federal grants, licenses, and 

employment simply because of their deeply held convictions. 

Now, you may hear tall tales and in some cases perhaps outright 

falsehoods about this bill, about this legislation we’re discussing 

today. Some may suggest that the First Amendment Defense Act, 

or FADA as we sometimes call it, would give private businesses a 

license to violate the antidiscrimination laws with impunity. This 

is just not so. It isn’t true. The bill does not preempt, negate, or 

alter any antidiscrimination measures or civil rights laws, State or 

Federal. To be clear, this bill does not take anything away from 

any individual or any group because it does not modify any of our 

existing civil rights protections. 

The First Amendment Defense Act does not allow Federal workers or contractors to deny services or benefits to same-sex couples, 


KING-6430 with DISTILLER
8 

and it does not allow hospitals to refuse medically necessary treatment or visitation rights to individuals in same-sex relationships. 

I invite everyone within the sound of my voice to read the bill 

so you can see in plain English, in black and white that the First 

Amendment Defense Act does not do any of these things. It simply 

affirms all Americans’ God-given, constitutionally protected right to 

live according to their religious or moral convictions without fear 

of punishment by the government, especially when it comes to operating churches, schools, charities, or businesses. 

It recognizes that religious liberty in America has always meant 

that the government’s job is not and can never be to tell people 

what to believe or how exactly to discharge their religious duties, 

but rather to protect the space for all people of all faiths and people 

of no faith at all to seek religious truth and to order their lives accordingly. 

Questions surrounding marriage today are difficult, and reasonable people of good faith will reach different judgments about how 

best we can protect religious liberty. But the First Amendment 

must remain our lodestar. And I believe any differences of opinion 

can be constructively worked out, even and especially as to particular provisions of this bill if our shared concern remains preserving the American tradition of religious liberty. I hope it is. 

Thank you. 

Chairman CHAFFETZ. I thank the gentleman. 

I will now recognize the Representative from Idaho, Mr. Labrador, for 5 minutes. 

STATEMENT OF HON. RAUL LABRADOR, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF IDAHO 

Mr. LABRADOR. Good morning, Chairman Chaffetz and Ranking 

Member Cummings. Thank you for holding this hearing today and 

allowing me to testify on my bill, the First Amendment Defense 

Act. 

From its very beginning, our nation has been home, harbor, and 

refuge to a wide range of religious beliefs. No other country has 

been as tolerant and as accommodating of religion and religious 

people as America. 

American tolerance has been a vital source of our strength for 

our people and for the Nation. Religious pluralism is a hallmark 

of our nation’s promise. It is what continues to make the land of 

the free so attractive to religious refugees and earnest seekers from 

around the world whose humble wish is the free exercise of religion. 

It is unsurprising then that when it came time for our Founding 

Fathers to list those rights most fundamental to a free and fulfilled 

people, the freedom of religion was prominently placed before the 

rest. I am grateful for the opportunity to testify before you today 

because I fear that this fundamental freedom is threatened. 

Over the past several years, we have seen a shift away from our 

nation’s long-held beliefs in the value of religious freedom, particularly where an individual’s religious belief or moral conviction that 

marriage is the union of one man and one woman is concerned. 

This growing intolerance has spawned a climate of intimidation in 

the public sphere. 


KING-6430 with DISTILLER
9 

I have worked with Senator Lee for the past 3 years on the First 

Amendment Defense Act to protect individuals, churches, and other 

religious institutions, including institutions of higher education, 

from government discrimination simply because they exercise 

what, until recently, we as Americans believed to be unalienable, 

self-evident right. No American should be threatened or intimidated because of their belief in traditional marriage. 

Critics of the bill have falsely claimed that the First Amendment 

Defense Act would give license to discriminate against the LGBT 

community. It has never been our intention to give anyone a socalled license to discriminate. In fact, Senator Lee and I have spent 

countless hours listening to both supporters and opponents of the 

bill in order to draft the legislation in a way that religious liberty 

is protected without taking anything away from anyone. Our bill 

does not take away anybody’s rights, to answer Mr. Cummings’ 

question. It just attempts to enshrine in religious liberties—to enshrine in law religious liberties long-believed to be protected. 

Today, the OGR Committee is considering a revised version of 

the First Amendment Defense Act, which protects those who stand 

for traditional marriage and same-sex marriage alike, and we have 

made these amendments after speaking to countless people who 

have both opposed and supported this bill. 

All Americans should be free to believe and act in the public 

square based on their beliefs about marriage without fear of government penalty. The First Amendment Defense Act simply ensures the fundamental right to exercise one’s religion by prohibiting the Federal Government from denying or excluding a person 

from receiving a Federal grant, contract, loan, license, certification, 

accreditation, employment, or other similar position or status based 

on the exercise of that religious or moral conviction. 

Detractors will have you believe that the First Amendment Defense Act would allow hospitals to refuse care to a same-sex couple 

or turn away a single pregnant mother. This claim is completely 

false. The First Amendment Defense Act expressly excludes hospitals, clinics, hospices, nursing homes, or other medical or residential custodial facilities with respect to visitation, recognition of a 

designated representative for health care decision-making, or refusal to provide medical treatment necessary to cure an illness or 

injury. 

It has also been hypothesized that this bill would authorize Federal Government employees to refuse to process tax returns, visa 

applications, Social Security checks, or passport applications of 

same-sex married couples. The bill specifically excludes Federal 

employees acting within the scope of their employment, and thus 

does not permit government employees to refuse services or benefits in any circumstance. 

However, the pendulum of tolerance must swing both ways. An 

employee like former Fire Chief Kelvin Cochran acting outside the 

scope of their employment should not lose their job because of their 

beliefs they hold and because of their practices. 

Finally, the claim that FADA would allow homeless shelters or 

landlords to turn away same-sex married couples is again false. 

This bill does not alter or modify any civil rights protections or negate any Federal antidiscrimination laws already in existence. And 


KING-6430 with DISTILLER
10 

I repeat because I think this needs to be heard, the bill does not 

alter or modify any civil rights legislation. 

In addition, the bill specifically excludes Federal for-profit contractors, which are usually the contractors that are building these 

buildings, acting within the scope of their Federal contract from refusing any services or benefits. 

As I have had conversations with people and read the many comments about this bill in preparation for this hearing, one thing has 

become obvious to me, that there is a gross misunderstanding as 

to the intent and purpose of this bill. I have met with several opponents of the bill to understand their concerns, and I have read the 

testimony of many of the witnesses testifying today, and it has become painfully clear that they haven’t even read the bill. 

I say to all detractors of this very measured piece of legislation 

just read it, please. Please read the bill that this committee is considering today before you make statements about the legislation. 

And to the media that’s here today, I ask the same. Please read 

the bill. We have gone through painstaking time and effort to make 

sure that this bill takes nothing away from any individual, but in 

a measured way we protect the rights enshrined in the Constitution. 

Many people claim that this law is unnecessary. Well, I disagree, 

and you will see why it’s necessary because of the testimony and 

many of the statements made here by the opposition. While Americans are free to structure their personal relationships as law permits, the Federal Government should not and must not use its 

muscle or might to threaten or target individuals and organizations 

who hold traditional religious views. 

The need for religious liberty hits close to home for me. I come 

from a religious tradition that in the no—not-too-distant past experienced intolerance, suffered discrimination, and fortunately, survived an official extermination order at the hands of the government. Freedom of religion is not only the right to worship in private, but it is also the right to publicly exercise our religion without fear of government interference. 

In the words of James Madison, ‘‘The religion then of every man 

must be left to the conviction and conscience of every man, and it 

is the right of every man to exercise it as these may dictate. This 

right is in its nature an unalienable right.’’ This right, this freedom 

is in jeopardy today. 

We live in a time where some strident voices call for tolerance 

but only for those with whom they agree. Intolerant tolerance really isn’t tolerance at all. The First Amendment Defense Act is a reasonable, rational, and important step forward in the protection of 

religious beliefs and moral convictions regarding marriage. You will 

hear today various examples of how religious freedom is currently 

under attack. My bill is designed to protect the First Amendment’s 

guarantee of the exercise of these freedoms. 

Thank you, Mr. Chairman. Thank you, Mr. Cummings. And 

thank you, Committee, for listening to these words. 

Chairman CHAFFETZ. We thank the gentleman. 

We will now recognize Congressman Frank. You are now recognized for 5 minutes. 


KING-6430 with DISTILLER
11 

WITNESS STATEMENTS 

STATEMENT OF BARNEY FRANK 

Mr. FRANK. Thank you. Mr. Chairman and members of the committee, let me say as he’s leaving room that I was glad to hear Mr. 

Labrador stress the importance of the American tradition of welcoming people, non-Americans to come to our shores to exercise religious freedom, and I was particularly pleased that, unlike some 

others, he did not exclude Muslims from that tradition. I think that 

is an important principle of which we, I hope, will continue to be 

proud. 

I’m sorry, was that a gavel? I —— 

Chairman CHAFFETZ. No, no, no. 

Mr. FRANK. Oh, I —— 

Chairman CHAFFETZ. They were adjusting the mic, and it pulled 

out the cord and it made a sound. Sorry. 

Mr. FRANK. I am still gavel-conscious when I’m here. 

[Laughter.] 

Mr. FRANK. The next thing I want to say is that I appreciate this 

telling us that we should all be nice, and I would reciprocate by 

saying, yes, okay, how about being nice to me? I was here for 32 

years. We used to say that we don’t take things personally, and 

most of the time we don’t, but, Mr. Chairman, this is very personal. 

This is a legislative enactment that essentially says that the fact 

that I live in a loving committed marriage with another man is 

somehow a threat to other people’s freedom. And the Congress has 

to single that out to act against it. 

And let me make this point. You’re talking about 

mischaracterization. This is not a bill to protect religious liberty in 

general. It singles out one particular religious tenet, the notion 

that same-sex marriage is morally wrong, oh, and also thrown in 

that non-marital sex is wrong. There are a whole lot of religious 

tenets that are under attack, so this one singles it out. 

And when the Senator said, well, let’s be kind and respectful, I 

don’t feel respected. I don’t feel that this is kind to single out what 

I do. And I’ve got to say, Mr. Chairman, I got married when I was 

still here. I don’t think any of the people with whom I served, some 

of whom are still here, were in any way inconvenienced or compromised or that their religious freedom was impinged. And I don’t 

understand why you have to single out my marriage as something 

against which people have to be protected. And single out is what 

you do. 

And as far as tolerance is concerned, I want to be very clear. I 

think people who are here shared with me I have never been overly 

sensitive to people’s opinions. Maybe the opposite is the case. 

[Laughter.] 

Mr. FRANK. But when there was a bill to outlaw the practices of 

one of the outstanding homophobic bigots of our time, that nut 

from Kansas who used to go and picket cemeteries because he said 

that’s the gay people’s fault, I was one of three Members of the 

House who voted against that. Three of us, Ron Paul, Dave Wu, 

and I voted to allow this bigot to continue to demonstrate his bigotry. The Supreme Court sided with us. Any of you were here, you 

probably voted for that bill who had been there at the time. 


KING-6430 with DISTILLER
12 

This is not a case of people’s right to think what they think or 

feel what they feel. This bill—and I will differ specifically with Mr. 

Labrador on this—empowers people to take my tax money and use 

it to do things and then exclude me and Jim from its benefit and 

a lot of other people as well because Mr. Labrador said with regard 

to housing, he specifically wanted to object to that. I spent a lot of 

my time here working on affordable housing. We created the LowIncome Housing Trust Fund. I was glad to do it. Mr. Jordan is not 

here but his predecessor Mike Oxley and I worked together on that. 

And it says that you can build housing with Federal funds for 

low-income renters. A very large number of these, contrary to Mr. 

Labrador’s view, and I say this because I specialize in this area, 

are nonprofits. Nonprofit developers are major stanchions of housing, and this bill explicitly says that the Federal Government may 

not say to a nonprofit developer if you intend to exclude same-sex 

married couples, we’re not going to let you use the money to do 

that so that they can take the money I pay—I pay taxes, and as 

some of you will discover, I pay a lot more taxes now than when 

I was here —— 

[Laughter.] 

Mr. FRANK.—and you’re going to take the tax money I pay and 

build housing and say people like me can’t live there because we 

somehow would be offensive, regardless of our behavior, and telling 

us that it won’t impinge on any other existing civil right is meaningless because in much of the country there is no such rights. 

The Supreme Court says we have a right to be married. There 

is no Federal legislation and in many States no other legislation 

that protects us against discrimination. So the argument that, oh, 

you don’t have to worry because existing statutes aren’t preempted 

is irrelevant to many, many Americans who live in places where 

there is no such statute. 

Also, I was struck—I think it was Senator Lee who said, well, 

what about people who administer programs involving care for children? And they believe that the child is best served by a marriage 

with two parents, a mother and a father. Well, if you believe that 

and if you believe the child has been disadvantaged by not having 

it, how do you morally justify further disadvantaging that child by 

denying him or her benefits? Because that’s what this bill allows. 

It says that if you are—we can say, hey, the child of a same-sex 

couple or an unmarried parent, no, we don’t approve of that and 

we’re going to exclude that, so you punish the child. Nothing in 

here says that you cannot do that. 

And finally, it would allow State employees—now Federal employees you exclude from this but State employees are not covered 

in the exemptions. A lot of Federal programs are administered by 

State employees. So this now leaves it very much open to the interpretation that State and Federal programs, unemployment compensation, disability, you can disapprove of and exclude people like 

that. 

So, Mr. Chairman, I can’t say I’m glad that we’re having this 

hearing. I really resent the fact that you’re having this hearing. 

You’re singling me and a lot of other people out who don’t deserve 

this from you. We don’t deserve the unkindness and the disrespect 

that we get. 


KING-6430 with DISTILLER
13 

If you were talking about people generally being protected because their religious views might be under assault, then bring out 

a general bill, but to say that same-sex marriage is somehow the 

issue and that people should be allowed to take Federal money and 

discriminate against those of us who are in same-sex marriages, 

which this bill clearly does in some ways for nonprofit contractors, 

for example, it violates a great principle. 

And I’ll close with this when people say I’m somehow assaulting 

them. I’m not talking about private citizens. I’m talking about people who decide voluntarily to go after Federal money. And a great 

former Member of this body Gus Hawkins said when he presided 

over a bill that said you can’t take Federal money and discriminate, if you’re going to dip your fingers in the Federal till, don’t 

complain if a little democracy rubs off on them. I hope that principle will win out. 

[Prepared statement of Mr. Frank follows:] 


KING-6430 with DISTILLER
14 


KING-6430 with DISTILLERInsert offset folio 1 here 23645.001

STATEMENT OF BARNEY FRANK ON H.R. 2802 

TO THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM. 

Mr. Chairman and Members of the Committee, 

I do not understand why people think I should pay taxes that fund a variety of Federal contracts 

and then be excluded from receiving any benefits from them for which I am otherwise eligible 

because the contractor who has voluntarily sought these funds doesn't think I should have 

married the man I love. That contractor is of course fully entitled to be unhappy that Jim and I 

have been happily married for four years, even though it has so obviously had no effect on him 

or her that he or she either never knew it or has long since forgotten it. 

If, when it is brought to his or her attention, he or she decides not to socialize with me, that is a 

loss I will bear without complaint. If, on meeting me in a social setting, he or she identifies 

himself or herself as someone offended by my marriage, I will not only have no objection to him 

or her avoiding me for the duration of the event, I would find that preferable to a reiteration of 

arguments I heard years ago, the falsity of which has been long since demonstrated, that Jim 

and I have in some indefinable way damaged the social fabric by sharing our lives. 

But if the contractor in question has successfully pursued a contract by which Federal 

taxpayers, of whom I am a larger one than I was when I served in this body, pay him or her to 

provide specified services to class of people that includes me, I object strenuously to being 

denied them because of an aspect of my life that does him or her absolutely no harm and is 

wholly irrelevant to the purposes for which he or she is being paid. 
15 


KING-6430 with DISTILLERInsert offset folio 2 here 23645.002

My objection in no way means that I do not recognize his or her right to any opinion 

whatsoever. But neither does it mean my acquiescence in his opinion diminishing my ability to 

participate in an activity which he has not only volunteered to perform, but has almost certainly 

worked hard for the right to do so and be financially rewarded for it. 

The objection to being forced to set aside your personal impulse to refuse to associate with 

law-abiding people who behave civilly because of your prejudice against some aspect of their 

personality was best answered by one of the great former members of this House, Gus Hawkins 

of California, Chairman of what when Democrats were in power was called the Committee on 

Education and Labor, when he replied that "when you dip your fingers in the Federal till, you 

shouldn't be surprised if some democracy rubs off on them." 

What you are considering today is whether one's religious beliefs justify an exception to the 

Hawkins principle. And when his point is properly understood, the answer is no. The question 

here is not whether people should be free in their personal and individual capacities to follow 

their religion. It is in the case of this legislative proposal whether the particular religious views 

of one acting in an official capacity, i.e. as an agent of our democratically elected, publicly 

funded government, can supersede public policy to the disadvantage of individuals whose 

legally guaranteed rights conflict with those doctrines. 

It is of course the case that this particular proposal is motivated solely by an animus against 

lesbian, gay, bisexual and transgender people, and is in fact worded in the form I have seen to 

authorize denial of publicly funded services to anyone in these categories who engages in any 

physical intimacy with another. That it is an expression of anti GLBT prejudice is beyond 
16 


KING-6430 with DISTILLERInsert offset folio 3 here 23645.003

debate. There are a variety of religions with a variety of precepts that differ with Federal 

policies. This bill singles out one such objection and empowers those who hold this belief-and 

only them-with a legal right no other religious believer will enjoy. 

And no one should be misled that it is simply a protection against an individual being forced 

into personal activity he or she believes is sacrilegious. Federal funds for the construction of 

rental housing for people of limited income was one of the issues on which I focused in my 

tenure here. I am deeply troubled by the possibility that this bill becomes law and allows 

developers to receive some of the money I fought to make available, and then use it to 

construct rental units which people like me would be prevented from inhabiting. How in the 

world does requiring that developer to rent to same-sex couples in any way impinge on his 

religious freedom? 

Finally having noted that this bill is motivated by, and intended to implement dislike of people 

like me, I do want to disclaim any notion that it would be better if it were more broadly 

assaultive of people's right to live their own lives free from the prejudices of others. But the 

warning of Pastor Niemoller is relevant here. This bill, in the unlikely event in is enacted, signed 

and found to be Constitutional will be a powerful precedent, attracting others who have 

religious objections to the entirely lawful activities -or personal characteristics-of some of 

their fellow citizens to subject them to similar penalties. 

BIOGRAPHY 

Barney Frank was a U.S. Representative in Congress from 1981 to 2013. He is a resident of 

Massachusetts who spends much of his time in Maine with his husband, Jim Ready, whom he 
17 


KING-6430 with DISTILLERInsert offset folio 4 here 23645.004

married in 2012 while he was a Member of the House. He does not know if any other Member 

or employee felt compelled to violate any religious belief in working with him. 
18 

Chairman CHAFFETZ. I thank the gentleman. 

Mr. Cochran, you are now recognized. Make sure your microphone is on there. There we go. Thank you. 

STATEMENT OF KELVIN COCHRAN 

Mr. COCHRAN. Chairman Chaffetz, Ranking Member Cummings, 

members of the committee, it’s great to be back before Congress. 

The last time I was here was when President Barack Obama nominated me to be the United States fire administrator. Thankfully, I 

was unanimously confirmed by the Senate Homeland Security 

Committee. 

As I sit before you today, as an African-American male with 34 

years in public safety, I, like many Americans, have been heartbroken by the loss of life in the recent events in our nation. So before my remarks, I’d be remiss not to acknowledge the sensitivities 

of the loss of lives felt by the African-American community, also 

the sensitivity of the loss of lives felt in the public safety community and as a result of this being the 1-month anniversary of the 

loss of lives in the city of Orlando, Florida. And I would ask that 

we all continue to pray for our nation. 

To begin my remarks on this issue today, I was born in Shreveport, Louisiana, in 1960 at Confederate Memorial Hospital. I was 

one of six kids. My father left my mother and raised all six of us 

by herself. At 5 years old I heard sirens outside of our front door 

of the shotgun house we lived in, and to my surprise, we opened 

the door and there was a big red Shreveport Fire Department fire 

truck in front of our house fighting the fire in Ms. Mattie’s house 

across the alley that we lived in. On that day I was smitten, and 

I wanted to be a firefighter when I grew up. 

The grownups told us in our neighborhood that in the United 

States of America all of our dreams would come true if we believed 

in and had faith in God, if we go to school and got a good education. If we respected grownups and treat the other children like 

we wanted to be treated, all of our dreams would come true. 

And in my case they were right. In 1981 I became a Shreveport 

firefighter, one of the first African-Americans in the history of the 

city of Shreveport to do so. However, I faced significant discrimination because of my race. There were designated plates, spoons, and 

forks for the black firefighters. At one fire station I had to wash 

the dishes in scalding hot water, and captain stood by to make sure 

that the water was hot enough to get rid of the germs. There was 

a designated black bed for the black firefighters so that the white 

firefighters on the other shifts could have the assurance that they 

were not sleeping on a bed that was shared by a black man. And 

I was constantly faced with a barrage of racial slurs. 

However, I believe that in our country if I practiced the values 

that I was raised upon that made my dream come true, I had a 

chance to overcome those racial barriers, and that through compassion for people, passion for the work that we were all called to do, 

and competence in the work that we all performed that I would win 

over my brother and sister firefighters and would one day be recognized as an equal member of the Shreveport Fire Department. 

In 1999 I became the first African-American for the city of 

Shreveport in its history. In 2008 I was honored and humbled to 


KING-6430 with DISTILLER
19 

be appointed as fire chief of the city of Atlanta under the Honorable Mayor Shirley Franklin. Twenty months later, I was honored 

to be appointed to the United States Fire Administration by the 

Honorable President Barack Obama. 

I was here less than a year and the Honorable Mayor Kasim 

Reed came to Washington, D.C., and recruited me back to the city 

of Atlanta where I resumed my duties as a fire chief under his 

leadership. In 2012, my professional association, the International 

Association of Fire Chiefs and Fire Chief magazine recognized me 

as the fire chief of the year. 

But in 2014, the week of Thanksgiving, my childhood-dreamcome-true fairytale career came to an abrupt end when I was suspended for 30 days without pay after Atlanta city officials who disagreed with the Judeo-Christian beliefs about marriage learned 

that I mentioned my beliefs in such in a book that I had written 

for a Christian men’s bible study. 

During that suspension, the city launched an investigation to determine if my religious beliefs caused me to discriminate against 

anyone in the LGBT community. That really was a shock to me. 

My faith does not teach me to discriminate against anyone but 

rather it instructs me to love everyone without condition and to 

recognize their inherent human dignity and worth as being created 

in the image of God and to lay down my life if necessary in the 

service of my community as a firefighter. 

And I would even do it today if it was necessary even in this very 

room. In fact, it was because of the discrimination that I myself 

suffered that I made a promise that under my watch if I were ever 

in charge no one would ever have to go through the horrors of discrimination that I endured because I was different from the majority, which is why I created in Atlanta the Atlanta Fire Rescue Doctrine based upon a collaborative effort from all the men and women 

from every people group within our organization. It was a doctrine 

that established a system to provide justice and equity for every 

member of the department and every member of the community 

that we had served. 

Consequently, after concluding its investigation, the city determined that I had never discriminated against anyone, including 

members of the LGBT community. Nevertheless, ladies and gentlemen, on January the 6th, 2015, I was terminated from employment 

from the city of Atlanta. It’s unthinkable to me today as an American that the very faith and patriotism that caused my childhood 

dreams to come true and my professional achievements is what the 

government ultimately used to bring my childhood dream come 

true to an end. 

I wrote a book to encourage men, inspire them to fulfill their 

God-called purpose as husbands, fathers, and community leaders. 

Only a few paragraphs of the 162-page book addressed teachings, 

Biblical teachings on marriage and sexuality, versus taken directly 

from the Holy Scripture, yet the city of Atlanta’s officials, including 

Mayor Reed, made it clear that it was those beliefs that resulted 

in my suspension, the investigation, and my termination. 

Following my termination, an Atlanta City Council member 

made this statement, ‘‘When you’re a city employee and your 

thoughts and beliefs and opinions are different from that of the 


KING-6430 with DISTILLER
20 

city’s, you have to check them at the door.’’ The city’s actions do 

not reflect true tolerance and diversity that has always been a part 

of America’s history and set us apart from other nations. Equal 

rights and true tolerance means that regardless of your position on 

marriage you should not—you should be able to peaceably live out 

your beliefs and not suffer discrimination at the hands of the government. 

The First Amendment Defense Act would ensure that no Federal 

employee who expressed their beliefs about marriage on their own 

time face discrimination by the government and face punishment 

that it have endured. Please pass this law to ensure our country 

remains diverse and truly tolerant. No one deserves to be 

marginalized or driven out of their profession simply because of 

their beliefs about marriage. 

Thank you, Mr. Chairman. 

[Prepared statement of Mr. Cochran follows:] 


KING-6430 with DISTILLER
21 


KING-6430 with DISTILLERInsert offset folio 5 here 23645.005

TESTIMONY 

BEFORE THE HOUSE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

ON 

RELIGIOUS FREEDOM & THE FIRST AMENDMENT DEFENSE ACT 

BY 

KELVIN J. COCHRAN 

JULY 12,2016 
22 


KING-6430 with DISTILLERInsert offset folio 6 here 23645.006

Mr. Chairman and Members of the Committee: 

After being born and raised in poverty, I rose to become the first African American Fire Chief in 

the City of Shreveport, Louisiana and ultimately held the highest fire office in the nation. Despite 

these achievements, government officials used the very religious convictions that fueled my 

professional success to bring an end to my career in public service. 

There is an ever increasing attack on religious liberty and expressive freedom in our beloved United 

States of America. Our government, formed to be freedom's greatest protector, increasingly is 

becoming its greatest threat. My story is just one of many where the government has imposed 

adverse consequences on an individual for publicly expressing the belief that marriage is the union 

of one man and one woman or for seeking to live and work consistent with that belief. Because of 

this government discrimination, the First Amendment Defense Act is necessary to preserve the 

freedom and dignity of people who hold beliefs about marriage that have been embraced throughout 

the world for most of human history and who seek to peacefully live consistent with those beliefs 

without fear of unjust government punishment. 

The story of my dedicated public service became publicized during the week of Thanksgiving 2014 

in a way that I never thought possible. That was when my government employer-the City of 

Atlanta-suspended me without pay and subsequently terminated me because of beliefs I expressed 

about marriage in a religious devotional book that I wrote on my own time. This brought my 34 

years in the fire and emergency services industry to an abrupt end. 

The very faith that inspired my professional achievements is what the government ultimately used 

to bring my childhood-dream-come-true career to an end. 

I was born in poverty in Shreveport, Louisiana in the early 1960s, and I was one of six kids. We 

were living in a government project. After my dad left, my mother raised all six of us by herself. At 

that point, we were too poor to stay in the government project, so we moved to an alley shotgun 

house. When I was five years old, one Sunday after church, we heard a siren outside of our house. 

We sprang to our feet and opened the front door, and there was a big red Shreveport fire truck in 

front of our house. Ms. Mattie's house across the alley from us was on fire. I saw the firefighters, 

and I wa~ smitten on that day: I knew that I wanted to be a firefighter when I grew up. 

There were three things that I thought about as a little kid - I wanted to be a firefighter, I didn't 

want to be poor, and I wanted a family because I realized how awful it was not to have a dad at 

home. The grown-ups told us that in America all of our dreams would come true if we had faith in 

God, went to school and got a good education, respected grown-ups, and treated others like we 

wanted to be treated. Following those principles and trying to serve God faithfully led to success in 

my career. 

In 1981, my childhood dream came true when I became a firefighter for the City of Shreveport. I 

was one of the first African Americans hired by the Shreveport Fire Department. I faced numerous 

obstacles and difficulties at work because of my race. But I believed that if I practiced the values 

that I had been taught as a child and demonstrated passion and dedication to the department and my 

colleagues, I could overcome any racial barrier. 
23 


KING-6430 with DISTILLERInsert offset folio 7 here 23645.007

Eventually, that proved to be true. In 1999, after years of dedicated service and many promotions 

within the department, I became the Chief of the Shreveport Fire Department. 

In 2008, Mayor Shirley Franklin appointed me as the Fire Chief of the City of Atlanta. 

In 2009, I was appointed by President Barak Obama and confirmed by the United States Senate as 

U.S. Fire Administrator for the United States Fire Administration, which is a component of the U.S. 

Department of Homeland Security's Federal Emergency Management Agency. Serving as the 

nation's highest ranking fire official, I oversaw, coordinated, and directed national efforts to prevent 

fires and improve fire response. I also led fire prevention and safety education programs and 

professional development opportunities for emergency responders. 

Less than one year later, Mayor Kasim Reed recruited me back to Atlanta. I resumed my duties as 

Fire Chief of Atlanta in 2010, and I continued to serve there until my termination. While I was in 

Atlanta, I was nationally recognized as Fire Chief of the Year in 2012. Subsequently, in July 2014, 

under my leadership, the City of Atlanta received the best Public Protection Classification rating 

available from the Insurance Services Office for its fire services, a rating shared by only 60 cities 

nationwide. 

Just weeks after that success, I was suspended for 30 days without pay after passages of a book that 

I wrote about my faith were brought to the attention of the mayor and a member of the City 

Council. Then on January 6, 2015, l was terminated from my employment with the City of Atlanta, 

ending my career. All of this happened simply because I expressed my religious beliefs about 

marriage and biblical morality-beliefs that have been held by Christians for nearly two thousand 

years. 

Among the most important Christian values is to love without condition all humankind. I believe 

that every person-without exception-possesses the image of the Creator, and as such has inherent 

dignity and worth. 

In the fire service, I had the privilege to live out this virtue every day for 34 years. I would have laid 

down my life for anyone in the community. And I would gladly do so today if necessary, even 

though I no longer serve in a profession that often requires this ultimate sacrifice. 

Having overcome discrimination myself, I believed that I had an obligation as Fire Chief to run 

inclusive fire departments that respected the diverse traits, characteristics, and beliefs of all my 

employees. I sought to ensure that every member of my departments was treated with dignity and 

respect, regardless of any personal characteristic. 

So the investigation that the City of Atlanta launched during my suspension was particularly hard to 

understand and even more difficult to endure. For years, l had worked so hard to ensure that 

everyone in my departments was respected and valued. And now, the City was insinuating that 

because of my faith, I discriminated against others. 

After my suspension but before my termination, the City determined that I had never discriminated 

against anyone. Its investigation concluded that "[n]o interviewed witness could point to a specific 

instance in which any member of the organization has been treated unfairly" by me. Yet the City 

terminated me anyway. 

2 
24 


KING-6430 with DISTILLERInsert offset folio 8 here 23645.008

It is still unthinkable to me that writing a book about my faith to help other men pursue God's 

calling on their lives brought about the end of my career in public service. I was prompted to write 

the book while I was leading a men's Bible Study. I became fascinated with God's interaction with 

Adam in the Garden of Eden. After much research and prayer, I became convinced that there were 

too many Christian men who were failing to live up to all that God is calling them to be. So I wrote 

the book to encourage and inspire men to fulfill their purposes as husbands, fathers, and community 

leaders. A few pages in the book addressed biblical morality, sexual challenges that Christian men 

face, and the Bible's teaching on marriage, but those issues are not the book's primary topic. Yet 

statements from City of Atlanta officials have made it clear that those religious beliefs resulted in 

my suspension, investigation, and ultimate termination. 

On the day I was suspended, Mayor Reed issued the following statement on social media: 

Late last week, Mayor Reed learned about material published in a book by Atlanta 

Fire and Rescue Chief Kelvin Cochran. The contents of the book do not reflect the 

views of Mayor Reed or the Administration. Mayor Reed's full statement is below: 

I was surprised and disappointed to learn of this book on Friday. I profoundly 

disagree with and am deeply disturbed by the sentiments expressed in the paperback 

regarding the LGBT community. I will not tolerate discrimination of any kind within 

my administration. 

We are conducting a thorough review of the facts surrounding the book and its 

distribution. In the interim, I have directed that the following steps be taken: 

• Chief Cochran will be suspended for one month without pay; 

• Chief Cochran will be required to complete sensitivity training; 

• Chief Cochran will be prohibited from distributing the book on city property; and 

• Deputy Chief Joel G. Baker will serve as Acting Fire Chief in Chief Cochran's 

absence. 

I want to be clear that the material in Chief Cochran's book is not representative of 

my personal beliefs, and is inconsistent with the Administration's work to make 

Atlanta a more welcoming city for all of her citizens - regardless of their sexual 

orientation, gender, race and religious beliefs. 

Atlanta City Council Member Alex Wan similarly made the following statement to the 

Atlanta Journal Constitution: 

I respect each individual's right to have their own thoughts, beliefs and opinions, but 

when you're a city employee, and those thoughts, beliefs and opinions are different 

from the city's, you have to check them at the door. 

Councilmember Wan also said that my termination sent a strong message. I could not agree more. It 

publicly declared that there are grave consequences for expressing the belief that marriage is the 

3 
25 


KING-6430 with DISTILLERInsert offset folio 9 here 23645.009

union of a man and a woman. If government employees hold beliefs like mine, they better remain 

silent, even in their personal lives, or they will be fired. 

But the actions by the City of Atlanta do not reflect American values. The real test ofliberty is what 

happens when citizens disagree on important issues. By terminating me because of my beliefs, the 

City failed to reflect the true tolerance and diversity that has always set America apart. Instead, the 

City labeled as outcasts the many diverse people-from Christians to Jews to Muslims-who 

express their faith's longstanding teachings on marriage. 

The First Amendment Defense Act would protect federal employees who express their religious 

belief or moral conviction that marriage is the union of one man and one woman. As I previously 

mentioned, I was the Fire Administrator for the United States Fire Administration in 2009. Had I 

been in that position when I wrote my book, the federal government could have terminated me just 

as the City of Atlanta had done, simply because it did not like the beliefs that I expressed. There are 

many men and women who daily risk their lives for others like I did, yet they live in fear of their 

government discriminating against them because of their belief about marriage. The First 

Amendment Defense Act would ensure that no federal employee will face the same sort of unjust 

government punishment that I endured. 

We live in a pluralistic society in which people of good will hold more than one view of marriage. 

We have a rich history in America of balancing important government interests with a wide 

diversity of beliefs, including disfavored beliefs, on controversial issues like war, healthcare, 

education, and abortion. I'm here today to ask that you preserve these cherished freedoms in a 

world where they are increasingly eroding. When our government takes steps to safeguard its 

citizens' freedom to peacefully live and work according to their beliefs, we as a nation live up to the 

best of our ideals. 

Although I was born in poverty, I have been blessed to succeed in America, a land where all are 

equal regardless of their religious creed. Please pass the First Amendment Defense Act and send the 

message that there is a place for me, and others like me, in the public square. In a truly diverse 

society, no one deserves to be ostracized, marginalized, or driven out of their profession because of 

their beliefs about marriage. 

4 
26 

Mr. MEADOWS. [Presiding] Thank you, Chief Cochran. 

Mr. Obergefell, you are recognized for 5 minutes. 

STATEMENT OF JIM OBERGEFELL 

Mr. OBERGEFELL. Chairman Chaffetz and the Ranking Member 

Cummings, thank you for inviting me to testify today. My name is 

Jim Obergefell, and I was the lead plaintiff in the Supreme Court’s 

historic marriage equality ruling in Obergefell v. Hodges. June 

2015 was a joyous time for me and LGBT people across the country. The Supreme Court decision extending the freedom to marry 

to all loving couples was a landmark achievement in the long and 

ongoing struggle for equality under the law. I was deeply honored 

to have played a role in helping same-sex couples win this victory. 

June of this year was a time of heartbreak for millions around 

the world, including myself. The murder of 49 people and wounding 

of 53 others at a gay nightclub in Orlando, Florida, on June 12 was 

a devastating tragedy and the worst attack on the LGBT community in our nation’s history. 

Today, exactly 1 month after this horrifying event, I am appearing before this congressional committee to discuss a bill that would 

authorize sweeping, taxpayer-funded discrimination against LGBT 

people, single mothers, and unmarried couples. I think that is profoundly sad. 

With all due respect to you and the members of this committee, 

this hearing is deeply hurtful to a still-grieving LGBTQ and ally 

community. It is my opinion that a hearing like we’re having today 

would have been much better spent in looking at how best to ensure that no one in this country is subjected to violence or discrimination based on who they are or whom they love. Sadly, that is not 

the focus of today’s hearing. 

I will explain why I am so strongly opposed to the so-called First 

Amendment Defense Act, but I first would like to share a bit more 

about myself. I was in a loving, committed relationship with my 

partner and eventual husband John Arthur for almost 21 years. I 

wish more than anything that John were still with me today, but 

he passed away on October 22, 2013, after a years-long battle with 

amyotrophic lateral sclerosis, known as ALS. I was with John, caring for him, at every difficult stage of his illness. 

Losing the most important person in your life is never an easy 

experience or one that is free of heartbreak. However, losing John 

was made much more difficult by the State of Ohio because it refused to recognize our marriage. We learned that I would not be 

listed on John’s death certificate as his surviving spouse when he 

died because the State refused to recognize our marriage for any 

purpose. 

It is difficult to express just how devastating it is to be told by 

the State in which you reside and where you were born that you 

will not be recognized as the surviving spouse to the man you loved 

more than anything and built a life together with for more than 

two decades. 

We decided to fight back against this injustice. Together with 

partners like the ACLU, we began a legal journey that, sadly, John 

did not get to see to conclusion. It culminated in a momentous victory for loving and committed couples across our country. I know 


KING-6430 with DISTILLER
27 

John would have been proud to have a played a role in this historic 

legal victory for equality. 

As important as it is that same-sex couples like John and I have 

the ability to obtain a civil marriage license in any State of the 

country, it is also critically important that this constitutional right 

is not undermined by proposals, like this legislation, that would 

subject loving couples like me and John and other LGBT people to 

discrimination. 

I understand that the proponents of this legislation argue that 

it is necessary to protect churches, clergy, and others who oppose 

marriage equality for religious reasons. But the First Amendment 

is already clear on this point. Since the founding of this country, 

no church and no member of the clergy has been forced to marry 

any couple if doing so would violate their religious teachings. That 

has not changed since same-sex couples won the freedom to marry. 

Religious liberty is a core American value. Everyone in this country is free to believe or not and to live out their faith as they see 

fit, provided that they do not do so in a way that harms other people. As I see it, this legislation turns this value on its head by permitting discrimination and harm under the guise of religious liberty. 

Among this legislation’s many potential harms, it could allow any 

privately owned business to refuse to let a gay or lesbian employee 

take time off to care for a sick spouse even though that otherwise 

would violate Federal Family and Medical Leave laws. This is not 

the kind of dignity and respect that the Supreme Court spoke so 

eloquently in the decision granting the freedom to marry nationwide last June. What could ever justify such a discriminatory and 

harmful action? 

Earlier in this hearing, it was stated that the purpose of the 

First Amendment Defense Act is to ensure no one is discriminated 

against because of how they view marriage. I would like you to 

read the bill again and understand that is exactly what this bill 

does. It allows discrimination against me and couples like me and 

John across this country who believe in marriage equality, who believe in our constitutional right to marry the person we love. I believe that the United States Congress must be better than this. 

Thank you again for the opportunity to provide these remarks. 

[Prepared statement of Mr. Obergefell follows:] 


KING-6430 with DISTILLER
28 


KING-6430 with DISTILLERInsert offset folio 10 here 23645.010

Written Statement of James Obergefell for July 12, 2016 Hearing in the Committee on 

Oversight and Government Reform on "Religious Liberty and H.R. 2802, the First 

Amendment Defense Act (FADA)" 

Chairman Chaffetz and Ranking Member Cummings: 

Thank you for inviting me to testify today. My name is Jim Obergefell, and I was the lead plaintiff 

in the Supreme Court's historic marriage equality ruling in Obergefell v. Hodges. 

June 2015 was a joyous time for me and LGBT people across the country. The Supreme Court 

decision extending the freedom to marry to all loving couples was a landmark achievement in 

the long and ongoing struggle for equality under the law. I was deeply honored to have played a 

role in helping same-sex couples win this victory. 

June 2016 was a time of heartbreak for millions around the world, including myself. The murder 

of 49 people and wounding of 53 others at a gay nightclub in Orlando, Florida on June 12 was a 

devastating tragedy and the worst attack on the LGBT community in our nation's history. 

Today, exactly one month after this horrifying event, I am appearing before this congressional 

committee to discuss a bill that would authorize sweeping, taxpayer-funded discrimination 

against LGBT people. I think that is profoundly sad. With all due respect to you, Chairman 

Chaffetz, and the members of this committee, this hearing is deeply hurtful to a still-grieving 

LGBT community. 

It is my opinion that a hearing like we're having today would have been much better spent in 

looking at how best to ensure that no one in this country is subjected to violence or 

discrimination based on who they are or whom they love. 

Sadly, that is not the focus of today's hearing. I will explain why I am so strongly opposed to the 

so-called "First Amendment Defense Act," but I first would like to share a bit more about myself. 

I was in a loving, committed relationship with my partner and eventual husband John Arthur for 

almost 21 years. I wish more than anything that John were still with me today, but he passed 

away on October 22, 2013 after a years-long battle with amyotrophic lateral sclerosis (known as 

ALS). I was with John, caring for him, at every difficult stage of his illness. 

Losing the most important person in your life is never an easy experience or one that is free of 

heartbreak. However, losing John was made much more difficult by the state of Ohio because it 

refused to recognize our marriage. 

Following the Supreme Court's decision in 2013 to strike down the heart of the so-called 

"Defense of Marriage Act," which prohibited federal recognition of marriages between individuals 

of the same sex, John and I decided to marry. Our home state, Ohio, did not allow same-sex 

couples to marry. At the time, John was confined to his bed and we knew that he did not have 

much time left. His physical condition made it extremely difficult to travel to a state where we 

would have the freedom to marry. Thanks to tremendously generous support from family and 

friends, on July 11, 2013, we boarded a medically equipped plane and traveled to Maryland. 

John's health was so fragile at that time that we could not even leave the plane. We were 

married inside of it on the airport tarmac. 
29 


KING-6430 with DISTILLERInsert offset folio 11 here 23645.011

When we returned to Ohio, we learned that I would not be listed on John's death certificate as 

his surviving spouse when he died because the state refused to recognize our marriage for any 

purpose. It is difficult to express just how devastating it is to be told by the state in which you 

reside that you will not be recognized as the surviving spouse to the man you loved more than 

anything and built a life together with for more than two decades. 

We decided to fight back in court against this injustice. Together with partners like the ACLU, we 

began a legal journey that, sadly, John did not get to see to conclusion. It culminated in a 

momentous victory for loving and committed couples across the country. I know John would 

have been proud to have a played a role in this historic legal victory for equality. 

As important as it is that same-sex couples like John and I have the ability to obtain a civil 

marriage license in any state in the country, it is also critically important that this constitutional 

right is not undermined by proposals, like this legislaHtm, that would subject loving couples like 

me and John, and other LGBT people to discrimination. 

Among this legislation's many potential harms, it could allow any privately owned business to 

refuse to let a gay or lesbian employee take time oft to care for a sick spouse, even though that 

otherwise would violate federal family and medical leave laws. This is not the kind of dignity and 

respect that the Supreme Court spoke so eloquently of in the decision granting the freedom to 

marry nationwide last June. What could ever justify such a discriminatory and harmful action? 

I understand that the proponents of this legislation argue that it is necessary to protect 

churches, clergy and others who oppose marriage equality for religious reasons. But the First 

Amendment is already clear on this point. Since the founding of this country, no church or 

member of the clergy has been forced to marry any couple if doing so would violate their 

religious teachings. That has not changed since same-sex couples won the freedom to marry. 

Religious liberty is a core American value. Everyone in this country is free to believe (or not) and 

to live out their faith as they see fit, provided that they do not do so in a way that harms other 

people. As I see it, this legislation turns this value on its head by permitting discrimination and 

harm under the guise of religious liberty. 

Given the way that this legislation is drafted- particularly the phrase" ... or that sexual relations 

are properly reserved to such a [heterosexual] marriage"- its harms are not limited to LGBT 

people or same-sex couples. Indeed, women, particularly single mothers, and unmarried 

couples could also find themselves on the receiving end of discriminatory treatment if this 

proposal were ever to be signed into law. For example, the legislation could allow certain social 

service programs that receive federal funding, including homeless shelters, to turn away a 

single mother and her child. In addition, it could permit any non-profit university to continue to 

receive federal funding even when it fires an unmarried teacher simply for becoming pregnant. 

It is difficult for me to imagine why anyone would think such discrimination should be permitted 

in the year 2016. I believe that the United States Congress must be better than this. 

We have seen similar discriminatory bills to this proposal introduced in state legislatures across 

the country this year- the vast majority of them were defeated after facing significant, bipartisan 

backlash, including in deep red states like Georgia, Oklahoma and Wyoming. In addition, just 
30 


KING-6430 with DISTILLERInsert offset folio 12 here 23645.012

last month, a federal judge in Mississippi blocked a state law similar to this proposal from taking 

effect saying that it violated both the 1st and 14th Amendments in the U.S. Constitution. The 

"First Amendment Defense Act" is an attempt to shift this divisive and failed strategy from the 

states to Congress. I urge all of you to stand on the right side of history by steadfastly rejecting 

this mean-spirited, discriminatory and unconstitutional proposal. 

I would like to conclude by saying that it is my sincere hope that Congress will move away from 

elevating proposals like this that only serve tQ harm a vulnerable community. I hope that this 

committee will look at ways to protect LGBT people and others in America from harm. Everyone 

deserves the freedom to live their life without fearing discrimination or worse simply because of 

who they are or whom they love. 

Thank you again for the opportunity to provide these remarks. I look forward to your questions. 
31 

Mr. MEADOWS. Thank you. 

Ms. Waggoner, you are recognized for 5 minutes. 

STATEMENT OF KRISTEN WAGGONER 

Ms. WAGGONER. Mr. Chairman and members of the committee, 

America enjoys a rich heritage of protecting fundamental human 

rights and civil liberties. The lifeblood of our nation has been our 

ability to speak freely and civilly and to act consistent with our beliefs even when those beliefs are politically unpopular. 

Indeed, same-sex marriage advocates would never have gained 

traction if the government had used the power of law to suppress 

their speech and banish them from the public square. We failed to 

preserve justice and true equality if our constitutional freedoms 

hinge on the whims of those who have political power. 

Religious freedom is a pre-political right that rests securely in 

our dignity as human beings. It belongs to all of us. It is inalienable. And we must never forget that protecting religious freedom 

protects freedom for the religious and the nonreligious alike. It allows all of us to engage and explore the meaning and purpose of 

life and then to order our lives consistent with the answers we find. 

Regardless of what one thinks about religion, we also know that 

civil liberties travel together. Countries that protect religious freedom are linked to vibrant democracy, gender empowerment, robust 

freedom of the press, and economic freedom. And countries without 

robust religious freedom are generally linked to more poverty, more 

war, extremism, and suppression of minorities. Religious freedom 

serves as a lynchpin to our other civil liberties and our human 

rights. And its loss signals the loss of other freedoms sure to follow. 

The First Amendment Defense Act preserves the core of the 

American experiment and safeguards the values that we all hold 

dear: diversity, human dignity, equality, and freedom for all people. 

It ensures that Americans do not face discrimination at the hands 

of the Federal Government simply because they seek to stay true 

to the very principles that guide and inspire their commitment to 

social justice and to their communities. 

Consider what our country would look like without these institutions from the Catholic-run homeless shelters and adoption agencies to the Baptist food banks and the Islamic hunger-relief programs or to the religious institutions of higher learning. These 

charities and institutions should not have to choose between abandoning the beliefs that motivate their service and being denied fair 

and equal treatment by their government. 

Using the Federal Government to drive out these institutions 

will harm our most disadvantaged members of society. Private 

charities should not have to live in fear of being shut down while 

they are offering a hand up. 

Are we really willing to censor and even force individuals, organizations, and churches to close simply because they adhere to the 

long-held belief that lies at the very core of each of the Abrahamic 

faiths? 

Members of the committee, the real test of liberty is what happens when we disagree, and laws that protect views on marriage 

promote tolerance, and they contribute to our society and make it 


KING-6430 with DISTILLER
32 

a more respectful and peaceful place in which to live. And FADA 

does just that. 

Now, today, we’ve already heard mischaracterizations about 

what this bill does. And like others that have gone before, please, 

I urge you, read the language in the bill. 

I’d like to briefly address three of those mischaracterizations. 

First, any attempt to demonize those who adhere to the belief that 

marriage is between a man and a woman is wrong. Since when 

have we assumed that anyone who holds a different view is motivated by hatred or animus? 

Second, comparing those who believe in man-woman marriage to 

racists is intellectually dishonest. Racists of Jim Crow America 

subjected African-Americans to fire hoses and lynch mobs. They 

burned their businesses, they bombed their churches, and they destroyed their communities. In contrast, those who believe in manwoman marriage seek only to peacefully live and work consistent 

with this truth, one that is universally recognized by all major religious faiths, by all cultures, by all civilizations, and by all races 

throughout human history, which is why the Supreme Court affirmed that it is an honorable belief held by reasonable people. 

Finally, we’ve already heard today tall tales to suggest that 

Americans will lose rights under FADA if it is adopted. Let us be 

clear. That is not true. FADA is very limited in scope, and it does 

not take away civil rights protections. Any suggestion to the contrary is not supported by the bill’s text. 

In a pluralistic society, a multitude of convictions, ideas, and beliefs will always exist. The First Amendment Defense Act helps to 

ensure that citizens are not marginalized based on their belief in 

marriage, whichever belief that is. And it preserves those freedoms 

that are integral to our human dignity. 

It is a time for choosing. People throughout world history under 

every sort of regime have had the freedom to believe. But what has 

made America great, what makes it unique is our freedom and 

commitment to be able to peacefully live out those beliefs. The 

First Amendment Defense Act ensures that tolerance remains a 

two-way street. Please, please do not allow marriage to become a 

litmus test for participation in our civil society. 

Thank you for your time. 

[Prepared statement of Ms. Waggoner follows:] 


KING-6430 with DISTILLER
33 


KING-6430 with DISTILLERInsert offset folio 13 here 23645.013

TESTIMONY 

BEFORE THE HOUSE COMMITTEE ON OVERSIGHT & GOVERNMENT REFORM 

ON 

RELIGIOUS FREEDOM & THE FIRST AMENDMENT DEFENSE ACT 

BY 

KRISTEN K. WAGGONER 

JULY 12,2016 
34 


KING-6430 with DISTILLERInsert offset folio 14 here 23645.014

Mr. Chainnan and Members of the Committee: 

Just over a year ago, five members of the United States Supreme Court declared that the federal 

constitution includes a fundamental right to marry a person of the same sex. Dissenting in the 

Obergefell decision, Justice Samuel A. Alito, Jr., explained the threat it presented to people of 

faith: 

[This decision] will be used to vilifY Americans who are unwilling to assent to the 

new orthodoxy .... I assume that those who cling to old beliefs will be able to 

whisper their thoughts in the recesses oftheir homes, but if they repeat those views 

in public, they will risk being labeled as bigots and treated as such by governments, 

employers, and schools. 1 

UCLA Jaw professor Eugene Volokh similarly commented: 

If! were a conservative Christian (which I most certainly am not), I would be very 

reasonably fearful, not just as to tax exemptions, but as to a wide range of other 

programs-fearful that within a generation or so, my religious beliefs would be 

treated the same way as racist religious beliefs are 2 

Opponents of religious freedom are committed to making Justice Alito and Professor Volokh's 

statements a reality. And, bolstered by Obergeftll, governments across the United States feel 

emboldened to force individuals and organizations to forego their convictions on marriage and 

human sexuality in order to remain in the public square. 

We are witnessing nothing less than the beginning of an ideological cleansing of public life in 

America. Congress must act to stop the marginalization of many Americans by passing the First 

Amendment Defense Act ("F ADA"). 

Consider the case of Alliance Defending Freedom client and Wyoming Judge Ruth Neely. For 

over 14 years, Judge Neely has served in two judicial positions in Pinedale, Wyoming, population 

2,030, winning the respect and admiration of her community. Like many tens of millions of her 

fellow Americans, Judge Neely's religious faith teaches her that marriage is the union of one man 

and one woman for life. When same-sex marriage was legalized by a federal court in Wyoming, a 

local reporter, who appears to have known that Judge Neely was religious, telephoned her at home 

and asked her whether she was "excited" to perfonn same-sex marriages. Judge Neely told him 

Ohergefell v. Hodges, 135 S. Ct. 2584, 2642-43 (2015) (A lito, J., dissenting) (emphasis added). 

Laurie Goodstein and Adam Liptak, Schools Fear Gay Marriage Ruling Could End Tax Exemptions, New York 

Times (June 24, 2015), http://www nytimes.corni2015/06125/uslschools-fear-impact-of-gay-marriage-ruling-ontax-status.html (last visited July 6, 2016). 

2 
35 


KING-6430 with DISTILLERInsert offset folio 15 here 23645.015

the truth: due to her sincerely held religious beliefs about marriage, she could not solemnize samesex unions. 

After the local Pinedale paper ran a story on Judge Neely's statement of her beliefs about marriage, 

the Wyoming Commission on Judicial Conduct and Ethics launched an inquiry and brought a 

complaint against her for publicly disclosing her beliefs. Following a summary investigation and 

hearing process wherein the Commission played the roles of investigator, prosecutor, judge, and 

jury, the Commission concluded that Judge Neely should be removed from office. The matter now 

sits with the Wyoming Supreme Court, which has the power to affirm or reject the Commission's 

recommendation. 

Notably, nothing about the law of Wyoming requires Judge Neely to solemnize marriages-the 

law gives her authority in one of her judicial positions to perform weddings if she chooses. The 

other position she holds does not include the authority to solemnize weddings. But, according to 

the Wyoming Commission, that does not matter. In the Commission's view, the fact that Judge 

Neely stated her religious beliefs about marriage when questioned by a reporter renders her unfit 

to serve as a judge in both of her positions. The government has set up a religious litmus test for 

public office: those who believe that marriage is the union of a man and a woman need not apply 

(unless, of course, they hide their personal convictions). 

Consider also the case of Alliance Defending Freedom client Kelvin Cochran, former fire chief 

for the City of Atlanta. Mr. Cochran, a devout man of faith, wrote a book to inspire men to fulfill 

their purpose as husbands, fathers, and community leaders. A few pages of the book address 

biblical morality and the Bible's teaching on marriage. When the book was brought to the attention 

of the Mayor of Atlanta and a member of the City Council, Mr. Cochran's employment was first 

suspended and then terminated-all because he expressed beliefs about marriage that he shares 

with millions of people of faith around the globe. 

And then there is Dr. Eric Walsh, a California physician and former director of public health who 

accepted a job in Georgia as a district health director.3 When Georgia health department officials 

learned that Dr. Walsh had delivered a number of sermons on his own time in which he spelled 

out orthodox Seventh-day Adventist positions on topics including human sexuality and marriage, 

they split the sermons between health department employees, scrutinized his religious views, and 

took notes.4 Two days later, Dr. Walsh was informed that a termination letter was on its way.5 

David French, Georgia Bureaucrats Listed to a Doctor's Sermons, and Then Fired Him, National Review Online 

(April 20, 20 16), http://www nationalreview.com/article/434297/eric-walsh-georgia-public-health-doctor-firedchristian-beliefs (last visited July 7, 2016). 

ld 

ld 

3 
36 


KING-6430 with DISTILLERInsert offset folio 16 here 23645.016

The cases of Judge Neely, Mr. Cochran, and Dr. Walsh demonstrate the stakes of the present battle 

over religious liberty. The ever-increasing push to slander as "bigots" the countless Americans 

who adhere to the reasonable and honorable view that marriage is the union of one man and one 

woman threatens not just religious liberty and our expressive freedoms, but all of our treasured 

civil liberties. 

When we find ourselves deprived of our ability to participate meaningfully in public life for 

holding views at odds with the prevailing government orthodoxy, freedom itself is a chimera. 

Religious freedom is not the gift of the state or the product of social compromise. It is an 

inalienable, pre-political right that rests securely in our dignity as humans. It ensures we can all 

search for the meaning of life and then peacefully live consistent with the answers we find. 

Religious liberty benefits all Americans. the religious and non-religious alike.6 

Research shows that the extent to which a country protects religious freedom is linked to vibrant 

democracy, freedom of the press, and rising economic and social well-being.7 This same research 

reveals that other civil liberties find themselves tightly bound with religious freedom.8 The loss of 

religious freedom signals the loss of other freedoms too. 

Years ago, what Judge Neely, Chief Cochran, and Dr. Walsh have had to endure would have been 

unthinkable. But now, the unthinkable is reality. 

It is a time for choosing. Will this Congress safeguard religious and expressive freedoms, or will 

it facilitate discrimination toward Americans who simply seek to peacefully live their lives 

according to their belief about marriage? Will Congress ensure that the government continues to 

be freedom's greatest protector, or will it stand aside as opponents of religious freedom expand 

their liberty-thwarting efforts from the states to the federal government and into all areas of public 

life? 

In a country as diverse as America, there will always be a multitude of convictions, ideas, and 

beliefs. And the test ofliberty is what happens when we disagree about important topics. Members 

of Congress can and should preserve Americans' first freedoms and our ability to engage in the 

marketplace of ideas consistent with our core religious beliefs or moral convictions about 

marriage. Congress can do this by enacting F ADA. 

Robert P. George and Katrina Lantos Swett. Religious Freedom Is About More Than Religion, The Wall Street 

Journal (July 25, 2013), http://"-'WW.wsj.com/articles/SB 10001424127887324783204578624510558738282 

(last visited July 8, 20 16). 

See Brian Grim and Roger Fink, The Price of Freedom Denied: Religious Persecution and Conflict in the 21st 

Century (2011) at 6!-88. 

Seeid 

4 
37 


KING-6430 with DISTILLERInsert offset folio 17 here 23645.017

In the wake of Obergefell, FADA is also necessary to protect against imminent threats to nonprofit 

religious educational institutions, churches, and social-welfare organizations. These institutions 

tirelessly educate and serve America's families including the poor and vulnerable. 

The story of Gordon College on the outskirts of Boston provides a good example. Gordon College 

is an evangelical Christian institution. It, like most orthodox Christian schools, has a policy that 

defines marriage as the union of one man and one woman, and requires students and employees to 

limit sexual activity to marriage. 

Prior to President Obama's issuance of Executive Order 13672 banning sexual-orientation 

discrimination by federal contractors, Gordon's president, Michael Lindsay, together with a 

number of other Christian leaders, signed a letter dated July 1, 2014, asking the President to include 

a religious exemption. The letter stated: 

We have great appreciation for your commitment to human dignity and justice and 

we share those values with you. With respect to the proposed executive order, we 

agree that banning discrimination is a good thing. We believe that all persons are 

created in the divine image of the creator, and are worthy of respect and love, 

without exception. Even so, it still may not be possible for all sides to reach a 

consensus on every issue.9 

This exercise of President Lindsay and Gordon College's right to pet1t1on the government 

prompted activist groups to target the school and its religious views. In September, the New 

England Association of Schools and Colleges-Gordon College's accreditor-announced that it 

was giving Gordon College one year to ensure that its policy was "nondiscriminatory."10 

The revocation of its accreditation would severely harm an institution like Gordon College. Indeed, 

the Department of Education requires that schools participating in federal student loan programs 

be accredited. 11 Loss of accreditation would thus mean that Gordon students could not obtain 

federally subsidized student loans. 

After convening a working group and engaging in several months of self-study and internal 

discussion, Gordon College reaffirmed its core principles and its criticized policies. In late April 

2015, the New England Association of Schools and Colleges decided not to revoke Gordon's 

accreditation, but not without setting off months of turmoil and anguish as Gordon was left to 

question what the future might hold given this newfound antagonism towards its beliefs. 12 Its 

threats represent the ominous arc of the current political and cultural trajectory. 

Letter to President Obama (July I, 20 14), quoted in David French, The Persecution of Gordon College, National 

Review Online (Feb. 2, 20 15), http://www nationalreview.com/node/413119/print (last visited June 30, 20 16). 10 See David French, Gordon College Keeps Its Faith and Its Accreditation, National Review Online (May I, 20 15), 

http://www nationalreview.com/node/417788/print (last visited June 30, 20 16). 11 Federal Student Aid Webpage, Department of Education, Accreditation, https://studentaid.ed.gov/salprepare-forcollege/choosing-schools/consider#accreditation (last visited July 5, 2016). 

" Seeid. 

5 
38 


KING-6430 with DISTILLERInsert offset folio 18 here 23645.018

In addition to protecting religious schools' accreditation and the ability of their students to receive 

federal financial aid, F ADA would also ensure that the federal government cannot subject students 

to discrimination or otherwise treat them unequally in an educational program because of their 

belief that marriage is the union of one man and one woman. 13 This protection is necessary because 

universities throughout the country have already begun taking adverse actions against students for 

operating consistent with their belief that marriage is between one man and one woman. 

For example, in the fall of2008, Alliance Defending Freedom client Jonathan Lopez attended Los 

Angeles City College and was enrolled in a speech class. That fall, California voters passed 

Proposition 8. which amended the state's constitution to define marriage as a legal union between 

one man and one woman. The day after the vote, Jonathan's speech professor came to class. 

slammed his papers on his desk, announced to the class that anyone who voted for Proposition 8 

was a "fascist bastard," and then dismissed the class. 

In Jonathan's next assignment, a short informative speech about the topic of his choice, Jonathan 

shared his faith story and addressed important elements of his religious beliefs, including his 

beliefs about marriage. Jonathan's professor erupted again, declared the speech over, and 

dismissed the class. In the days that followed, the professor continued to harass Jonathan and told 

him that he was going to make it his mission to expel him from the school, forcing Jonathan to 

take legal action. Jonathan's case vividly illustrates the hostility that those in public schools have 

displayed toward the belief that marriage is the union of husband and wife. 

The case of Alliance Defending Freedom client Emily Booker is disturbingly similar. During 

Emily's time at Missouri State University, she received an assignment to write a paper expressing 

her support for same-sex families. When she explained that she could not perform the assignment 

due to her sincere religious beliefs, her professor filed a grievance against her which led to a faculty 

hearing where Emily was interrogated about her faith. As a condition of graduation. she was forced 

to sign a contract vowing to ''close the gap" between her faith and the views of her social work 

program. Again. Emily's story shows that the government has begun engaging in a pattern of 

hostility toward students who want to live consistent with their religious convictions on marriage. 

The California legislature's recent attempts to enact Senate Bill 1146 demonstrate the very real 

assault against faith-based colleges, universities, and their students. If enacted, this law would strip 

religious colleges that receive public funding of an exemption that allows them to require faculty 

See First Amendment Defense Act at Section 3(b)(4) (forbidding the federal government from taking action to 

"withhold, reduce, exclude, terminate, or otherwise make unavailable or deny any entitlement or benefit under a 

Federal benefit program, including admission to, equal treatment in, or eligibility for a degree from an educational 

program"). The United States Supreme Court recently construed the language "otherwise make unavailable or 

deny" in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. to support 

the existence of disparate-impact liability under the Fair Housing Act. 135 S. Ct. 2507,2519 (2015). Similarly 

here, FADA's use of the phrase "otherwise make unavailable or deny" in Sections 3(b) (3), (4), and (5) ensures 

that the bill's prohibition of discriminatory action "on the basis" of a religious belief or moral conviction about 

marriage extends to situations where government action disparately impacts a person or persons who hold such 

beliefs regardless of the government's purported nondiscriminatory motives. 

6 
39 


KING-6430 with DISTILLERInsert offset folio 19 here 23645.019

and students to comply with various religious-based ethical standards. 14 The proposed law would 

also limit the ability of faith-based colleges and universities to require students and staff to sign 

statements of faith, honor codes, or otherwise pledge to abide by biblical standards of conduct. 15 

If the law passes. any college with policies affirming the belief that marriage is between one man 

and one woman will risk losing state funding, particularly jeopardizing poor and minority students. 

But students and schools should not be marginalized or closed simply because their beliefs do not 

accord with the current government orthodoxy. The government should ensure true tolerance by 

safeguarding a diversity of beliefs and not punishing those who disagree. FADA will prevent the 

federal government from similarly discriminating against students who believe in one-man-onewoman marriage in educational programs that receive federal funding. 

Beyond colleges and universities, FADA is important to protect the conscience rights and religious 

liberty of social-welfare organizations, including private foster-care and adoption providers. 

There are more than 1,000 private. licensed foster-care and adoption providers in the United States, 

many of which are faith-based organizations whose religious beliefs call them to care for 

vulnerable children. 16 These critical social-welfare organizations are supported in part with federal 

funds provided through programs including the Stephanie Tubbs Jones Child Welfare Services 

Program, 17 the Federal Foster Care Maintenance Payments Program, 18 and the Adoption and 

Guardianship Assistance Program. 19 

In the wake of the Obergefell decision, there is a real danger that faith-based adoption and fostercare organizations with sincere convictions about marriage could find their federal funding cut off 

through executive action. The impact of such a move would be devastating to the welfare of many 

of the most vulnerable children in our society because faith-based adoption and foster-care 

providers currently help thousands of children find permanent homes every year. In 2007, more 

than 20,000 of the approximately 76,000 unrelated domestic adoptions that took place in the 

United States were handled by private providers, and many of those were arranged by faith-based 

groups. Furthermore, excluding these agencies from the marketplace would deprive birth mothers 

of real choices when they arc deciding the type of family with whom they would like to place their 

child.20 

14 See California Senate Bill 1146 (2016), http://leginfo.legislature.ca.gov/faces/biiiNavCiient.xhtml?bill_id 

=201520160SB1146 (last visited July 7, 2016). 15 Seeid 16 Sarah Torre and Ryan T. Anderson, Adoption. Foster Care. and Conscience Protection, Heritage Foundation 

(Jan.IS, 20 15), http://www.heritage.org/research/reports/20 14/0 1/adoption-foster-care-and-conscienceprotection (last visited July 5, 20 16). 17 42 U.S.C. § 621, et seq. 18 42 u.s.c. § 672. 19 42 u.s.c. § 673. 20 Sarah Torre and Ryan T. Anderson, Adoption. Foster Care. and Conscience Protection, Heritage Foundation 

(Jan.l5, 20 15), http://www.heritage.org/research/reports/20 14/0 1/adoption-foster-care-and-conscienceprotection (last visited July 5, 2016). 

7 
40 


KING-6430 with DISTILLERInsert offset folio 20 here 23645.020

The reality of the threat to these groups' federal funding is borne out by evidence at the state level. 

For example, when the District of Columbia redefined marriage to include same-sex couples, 

government officials informed Catholic Charities that it no longer would be allowed to provide 

publicly funded foster-care and adoption programs in the District of Columbia as a result of the 

agency's inability to place children with same-sex couples.21 Thus, Catholic Charities was forced 

to close its foster-care and adoption programs.Z2 F ADA would have prevented that and would have 

helped the many children served by Catholic Charities. The demise of Catholic Charities in the 

District of Columbia is no isolated incident. Unfortunately, the same thing happened in 

Massachusetts when that state's high court redefined marriage,23 and in Illinois when civil unions 

for same-sex couples were legalized.24 

At present, the federal government might take similar action in the wake of Obergefell. In order to 

protect the ability of faith-based adoption and foster-care providers to continue serving vulnerable 

children and families, Congress should pass FADA. Faith-based social-welfare organizations must 

not be subjected to government discrimination when they seek federal funds to carry out their 

important work. The welfare of vulnerable children hangs in the balance. 

Finally, FADA is necessary to shield churches and religious schools from the government's 

coercive power to tax. In the wake of Obergefoll, churches and religious schools are a vulnerable 

target for those who seek to expand the size and scope of the federal government. But we must 

never forget that the power to tax is the power to destroy. 

This threat is particularly imminent. Arguing before the Supreme Court in the Obergefell case, the 

Solicitor General of the United States was asked whether a religious school that opposes same-sex 

marriage might lose its tax-exempt status should the Supreme Court redefine civil marriage to 

include same-sex couples. The Solicitor General responded that "[i]t's certainly going to be an 

issue."25 

See Same-sex 'marriage 'law forces D.C Catholic Charities to close adoption program, Catholic News Agency 

(Feb. 17, 20 I 0), http://www.catholicnewsagency.com/newslsame-sex_marriage _law _forces_ d.c._ catholic 

_charities_to_close_adoption_program/ (last visited July 5, 2016) ("Although Catholic Charities has an 80-year 

legacy of high quality service to the vulnerable in our nation's capital, the D.C. Government informed Catholic 

Charities that the agency would be ineligible to serve as a foster care provider due to the impending D.C. samesex marriage law."). 

-- See id.; Julia Duin, Catholics end D.C foster-care program. Washington Times (Feb. 18, 2010), 

http://www. washingtontimes.com/news/20 I 0/feb/ 18/ de-gay-marriage-law-archdiocese-end-foster-care/ (last 

visited July 5, 2016) ("The Archdiocese of Washington's decision to drop its foster care program is the first 

casualty of the District of Columbia's pending same-sex marriage law"). 23 See Daniel Avila, Same-Sex Adoption in Massachusetts, the Catholic Church, and the Good of the Children: The 

Story Behind the Controversy and the Case for Conscientious Refosal.s, 27 Children's Legal Rights Journal I 

(2007). 24 See Waymon Hudson, Illinois Catholic Charities Ends Adoption Lawsuit, Huffington Post, (Nov. 15, 2011), 

http://www huffingtonpost.comlwaymon-hudson/illinois-catholic-charities-adoption b 1094723.html (last 

visited July 5, 20 16). - - 25 Transcript of Oral Argument at 38, Obergefe/l v. Hodges, 135 S. Ct. 2584 (2015) (No. 14-556). 

8 
41 


KING-6430 with DISTILLERInsert offset folio 21 here 23645.021

This admission by the Solicitor General is more than a little troubling because it confirmed that, 

absent legislative action by Congress, the Internal Revenue Service ("IRS") may move to revoke 

the tax-exempt status of religious schools and churches. 

To understand just how serious and real the threat to religious institutions' tax-exempt status truly 

is, one must understand precisely why the IRS would feel justified in taking action. In Bob Jones 

University v. United States, the United States Supreme Court concluded that "an institution seeking 

tax-exempt status must serve a public purpose and not be contrary to established public policy."26 

The Court then looked to its decision in Brown v. Board of Education,27 as well as "myriad Acts 

of Congress and Executive Orders." to find a "firm national policy" against racial segregation and 

discrimination in education.28 The Court held that a religious educational institution "engaging in 

practices affirmatively at odds with" a firm national policy-in that case, the school's racially 

discriminatory admissions policy-is not "charitable" within the meaning of Section 50 I ( c )(3) and 

therefore is not entitled to tax-exempt status.29 

In the wake of the Oberge.fell decision, there is a real and growing danger that the IRS will attempt 

to wrongly extend the holding of Bob Jones University to revoke the tax-exempt status of religious 

institutions, including churches and schools that adhere, as a matter of religious principle, to the 

definition of marriage as between one man and one woman. The IRS would do this by purporting 

to discover a so-called "firm national policy'' against organizations operating consistent with that 

reasonable and widely held religious and moral belief. 

But unlike the racially discriminatory policies at issue in Bob Jones University, the view that 

marriage is between a man and a woman is a respectable, long-held belief that lies at the very core 

of each of the Abrahamic religions. Indeed, there can be no legitimate comparison whatsoever 

between that decent view and the moral repugnancy of racial discrimination. The civil-rights 

movement fought a true and dangerous evil, and did so at great consequence to those brave enough 

to stand for the principle that all men are created equal and endowed by their Creator with inherent 

rights to life, liberty. and the pursuit ofhappiness. The victims of racism suffered terrible violence 

and degradation for hundreds of years in America, first on slave plantations and then, following a 

bloody civil war to end that dreadful and immoral institution, found themselves subject to further 

degradation in the form of segregation, Jim Crow laws, and violence at the ends of the ropes of 

lynch mobs and the fire hoses of racist government officials. Comparing the evils of racism to the 

grievances of those who wish to silence individuals and institutions who believe in gender-diverse 

marriage slanders millions of good and respectable Americans who seek only to peacefully live 

consistent with their religious beliefs or moral convictions. 

26 461 u.s. 574, 586 (1983). 

" Brown v. Board of Education, 347 U.S. 483 ( 1954). 

" Bob Jones University, 461 U.S. at 593. 29 !d at 598-99. 

9 
42 


KING-6430 with DISTILLERInsert offset folio 22 here 23645.022

Contrary to what the illegitimate comparison to racism suggests, the belief that marriage is the 

union of one man and one woman for life is a decent and honorable one that has been held by 

people of diverse cultures, races, and faiths for virtually all of human history. People on both sides 

of the aisle agree that those who hold this belief are good and honest people. Indeed, it's a belief 

that President Obama publicly expressed as recently as 2008 when, during an interview with Pastor 

Rick Warren, the President stated, "l believe that marriage is the union between a man and a 

woman. For me as a Christian, it's also a sacred union. God's in the mix."3

° Congress should thus 

take action to protect the rights of the myriad people and institutions that hold this respectable 

belief. 

The danger to the tax-exempt status, accreditation, and federal funding of nonprofit religious 

institutions is clear, present, and growing. Together with those specific threats, the free exercise 

and expression rights of Americans are under assault. The opponents of religious freedom seek to 

relegate those who believe in one-man-one-woman marriage to an undeserved ignominy, and they 

have shown that they are more than willing-and, in fact, eager-to use the power of government 

to do it. 

A free people in a representative democracy must never countenance the censorship of public life 

by public officials in any part of government, no matter how well-intentioned they may claim to 

be. lfwe do not vigorously oppose those who seek to censor the public square now, we will soon 

find all of our freedoms and our nation's diversity in great jeopardy. By passing FADA, Congress 

will not only enact important protections for institutions and individuals, but also delegitimize the 

actions of those who seek to suppress religious freedom. And it will confirm that the view of 

marriage held by many tens of millions of Americans is and continues to be decent, honorable, 

and worthy of respect in the public square. 

30 Robin Phillips, DOMA and the Definition of Marriage, Examiner.com (March 26, 20 II), 

http://www.examiner.com/article/doma-and-the-definition-of-marriage (last visited July 7, 2016). 

10 
43 

Mr. MEADOWS. Thank you. 

Ms. Franke, you are recognized for 5 minutes. 

STATEMENT OF KATHERINE FRANKE 

Ms. FRANKE. I’m the only one with a different kind of mic, but 

it seems to be on. 

Mr. Chairman, Ranking Member Cummings, the rest of the committee, thank you so much for inviting me to testify today on the 

important issues of religious liberty and civil rights that are before 

the committee. 

I’m a professor of law at Columbia Law School, as you heard earlier, and I’m also the faculty director of the Public Rights/Private 

Conscience Project at Columbia. It’s a project I founded a few years 

ago where we bring academic—legal academic expertise to bear on 

the multiple contexts in which religious liberty rights are in tension with other fundamental rights to equality and liberty. And 

clearly, the bill before you today is one of such contexts. 

My testimony today is delivered on behalf of 20 other prominent 

legal academics who have joined me in providing an in-depth analysis of the meaning and the likely effects of FADA, the First 

Amendment Defense Act, were it to become law. We particularly 

feel compelled to testify today because the first legislative finding 

contained in FADA declares that ‘‘leading scholars concur that conflicts between same-sex marriage and religious liberty are real and 

should be addressed through legislation.’’ 

So as leading scholars, we must correct this statement. We do 

not concur that conflicts between same-sex marriage and religious 

liberty are real, and we do not hold the view that any such conflict 

should be resolved through or addressed through legislation. 

On the contrary, we maintain that religious liberty rights are already well protected in the United States Constitution, in Federal 

and State law, rendering in our view FADA both unnecessary, and 

as I hope I can convince you, harmful. 

I would ask that the more thorough written testimony that my 

colleagues and I have prepared would be entered into the record. 

Mr. MEADOWS. Without objection. 

[Prepared statement of Ms. Franke follows:] 


KING-6430 with DISTILLER
44 


KING-6430 with DISTILLERInsert offset folio 23 here 23645.023

TilE l'URLlC RlG!!TS!l'R!VATE CONSCIENCE PROJECT 

CENTER roR GENDER AND SEXuAUTY LAW 

COL UMRrA LAw SCtfOOL 

435 WEST 116"' STREET 

NEW YORK, l'Y 10027 

TEL: 212.854.0167 

HTTP://TJNYt:RL.C0;\.·1/Pl fBLfCfUOlfTS 

House Of Representatives 

Committee On Oversight And Government Reform 

Hearing on H.R. 2802, the First Amendment Defense Act (FADA) 

Testimony of Professor Katherine Franke1 

July 12, 2016 

Mr. Chairman, Ranking Member Cummings, and Members of the Committee, thank you 

for inviting me to testify on these important questions of religious freedom law. 

I am the Sulzbacher Professor of Law at Columbia Law School in New York City, where 

I am also the Faculty Director of the Public Rights/Private Conscience Project, a think tank in 

which we bring legal academic expertise to bear on the multiple contexts in which religious 

liberty rights arc in tension with other fundamental rights to equality and liberty. 

Introduction: 

My testimony today is delivered on behalf of twenty leading legal scholars who have 

joined me in providing an in depth analysis of the meaning and likely effects of the First 

Amendment Defense Act (FADA),2 were it to become Jaw. We feel particularly compelled to 

provide testimony to this Committee because the first legislative finding set out in F ADA 

declares that: "Leading legal scholars concur that conflicts between same-sex marriage and 

religious liberty are real and should be addressed through legislation."3 As leading legal scholars 

we must correct this statement: we do not concur that conflicts between same-sex marriage and 

religious liberty are real, nor do we hold the view that any such conflict should be addressed 

through legislation. On the contrary, we maintain that religious liberty rights are already well 

protected in the U.S. Constitution and in existing federal and state legislation, rendering FADA 

both unnecessary and harmful.4 

Rather, F ADA establishes vague and overly broad religious accommodations that would 

seriously harm other Americans' legal rights and protections. Instead of protecting the First 

Amendment, the First Amendment Defense Act likely violates the First Amendment's 

1 Sulzbacher Professor of Law, Director, Center for Gender & Sexuality Law, Faculty Director, Public 2 The version currently before the committee, AMENDMENT IN THE NATURE OF A SUBSTITUTE TO H.R. 2802, 

was introduced by Rep. Raul Labrador (H.R. 2802) on July 7, 2016. References in this testimony will be to the July 

7, 2016 version of the legislation. 3 FADA, Sec 2 (1). 4 See, e.g., U.S. CONST. amend. I; 42 U.S.C. § 2000bb-1; 42 U.S.C. § 2000cc; 42 U.S.C. § 2000cc-1. 
45 


KING-6430 with DISTILLERInsert offset folio 24 here 23645.024

Establishment Clause. The Act purports to protect free exercise of religion and prevent 

discrimination, yet in fact it risks unsettling a well-considered constitutional balance between 

religious liberty, the prohibition on ~overnment endorsement of or entanglement with religion, 

and other equally fundamental rights. 

As legal scholars with expertise in matters of religious freedom, civil rights, and 

constitutional law, we offer this legal analysis to call attention to provisions of the bill that we 

believe raise serious conflicts with the First Amendment of the U.S. Constitution. 

The proposed F ADA aims to immunize a wide range of "persons" from federal penalties 

and law enforcement when they engage in speech or conduct that would otherwise violate 

constitutional or statutory law, so long as that speech or conduct is in accordance with a sincerely 

held religious belief or moral conviction that marriage is or should be recognized as the union of 

two individuals of the opposite sex; or two individuals of the same sex; or extramarital relations 

are improper. 6 A broad reading of this bill would create a safe harbor from penalties associated 

with an enormous range of behavior that is otherwise illegal or prohibited by federal law and 

regulation. For example, in contexts where a person holds such a religious belief or moral 

conviction, F ADA would: 

Prevent the govemment from taking enforcement action against an employer that 

refuses to provide mandated health insurance coverage to the dependents of same-sex 

or unmarried parents; 

Prevent the government from taking enforcement action against a retirement plan that 

refuses to provide annuity benefits to same-sex spouses of plan beneficiaries; 

Eliminate the federal government's ability to prohibit discrimination by recipients of 

federal grants and contracts. For instance, a clinic could refuse to provide 

contraceptives to unmarried women or men yet remain eligible for a Title X grant to 

provide family planning services; 

Prevent the federal government's ability to enforce the Patient Protection and 

Affordable Care Act (ACA) in cases where a health care provider denied coverage for 

mandated preventative services-such as counseling for sexually transmitted 

infections, contraception, or domestic violence screening and counseling- to 

5 While not the focus of this memo, we also note that we have significant concerns about FADA's constitutionality 

under other provisions of the U.S. Constitution, including the Free Speech Clause of the First Amendment and the 

Equal Protection Clause of the Fourteenth Amendment. FADA singles out for special protection only a person who 

believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction that marriage is or 

should be recognized as the union of two individuals of the opposite sex; or two individuals of the same sex; or 

extramarital relations are improper. See FADA § 3(a)(l ). By providing special rights and benefits for a narrow type 

of speech, the bill violates the Free Speech Clause requirement that government regulations of private speech be 

viewpoint-neutral. See Police Dep ., of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972) ("[A]bove all else, the 

Flrst Amendment means that government has no power to restrict expression because of its message, its ideas. its 

subject matter, or its contcnC); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622. 642 (1994) (""Our precedents thus 

apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon 

speech because of its content""); R.A.V. v. Citv of St. Paul. Minn., 505 U.S. 377,386 (1992) ('·The government may 

not regulate use based on hostility--or favoritism-towards the underlying message expressed."). As a law that 

substantially involves the state in public and private discrimination, we believe FADA conflicts with Supreme Court 

precedent including Reitman v. Mulkey, 387 U.S. 369 (1967) and Hunter v. Erickson. 393 U.S. 385 (!969). 

FADA, § 3(a)(l). 

2 
46 


KING-6430 with DISTILLERInsert offset folio 25 here 23645.025

employees who are married to a same-sex partner or who have extramarital 

relations/sex. 

Prevent the Secretary of Housing and Urban Development and/or the U.S. Attorney 

General from enforcing the Fair Housing Act against a landlord that advertises that it 

will not rent to unmarried parents. 7 

Prevent the federal government from denying Title X funding to a health clinic that 

provides family planning care only to those patients that provide a marriage license in 

order to qualifY for such services. 

Prevent the federal government from denying a Violence Against Women Act grant 

to a domestic violence shelter that required all residents to attest their opposition to 

marriage equality and/or extramarital relations/sex before securing housing. 

Require that the federal government provide preferred tax status to nonprofits that 

discriminate or otherwise violate the tax code. For instance, charitable hospitals could 

refuse to apply a mandated financial assistance policy to patients who are married to 

someone of the same sex and still maintain their tax-exempt status. 

Interfere with same-sex couples' newly secured right to civil marriage by preventing 

the federal government from enforcing the Supreme Court's ruling in Obergefell v. 

Hodgei on state actors. For instance, the Department of Justice would be unable to 

sue state officials who deny same-sex couples their constitutional right to marry; 

Deny some federal courts the capacity to adjudicate lawsuits between private parties, 

since a court could be interpreted as "imposing a penalty" within the meaning of the 

bill.9 

These are merely a few salient examples of the kinds of safe harbors that FADA would create, 

thus imposing significant harms on third parties otherwise protected by federal laws. A longer, 

more detailed list is discussed below. 10 

In essence, F ADA would incapacitate the federal government from enforcing a wide range of 

laws, policies, and regulations that secure and further fundamental rights to equality and liberty. 

For this reason, FADA does not defend the First Amendment; rather it creates and then defends a 

new right for non-governmental actors to discriminate in the name of religion. Even worse, 

FADA's language may conscript the federal government as a partner in those very acts of 

discrimination. 

I. By Implying An Absolute Right to Religious Liberty, FADA Does Not "Defend" 

First Amendment Principles But Rather Violates Them 

As a preliminary matter, we note that the First Amendment Defense Act's title is a 

misnomer. The purpose and effect of the bill is to exempt all persons-defined very broadly7 42 U.S. Code§ 3604 (a)-( c). 8 Obergefellv. Hodges. 135 S. Ct. 2584 (2015). 9 At first glance, FADA appears to apply only to suits against the federal government or initiated by the federal 

government rather than between private parties. However the Religious Freedom Restoration Act, which contains 

similar language, has been interpreted by some courts to be applicable as a defense even in private civil suits. See 

infra, fn. 54-59 and accompanying text. 10 See infrapp. 7-18. 

3 
47 


KING-6430 with DISTILLERInsert offset folio 26 here 23645.026

from otherwise neutral laws of general applicability that conflict with their religious beliefs. This 

absolute right to disobey the law because of one's personal religious preferences or moral 

convictions, regardless of the consequence on others, is emphatically not required or sanctioned 

by First Amendment doctrine. 

For well over a century, the Supreme Court has held that religious freedom does not provide 

an unconditional right to act in accordance with one's beliefs, religious, moral, or otherwise. In 

1990 in Employment Division v. Smith, Justice Scalia, writing for the Court, summed up this 

longstanding principle, stating that the Supreme Court had "never held that an individual's 

religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct 

that the State is free to regulate. On the contrary, the record of more than a century of our free 

exercise jurisprudence contradicts that proposition."JI The Court first clearly articulated this 

principle in 1878 in Reynolds v. US., when it upheld a criminal charge of polygamy against a 

Mormon man, a practice that he considered a religious duty. The Court held that while laws 

"cannot interfere with mere religious belief and opinions, they may with practices,"12 and further 

noted that allowing a religious exemption from the law in such circumstances "would be to make 

the professed doctrines of religious belief sugerior to the law of the land, and in effect to permit 

every citizen to become a law unto himself." 3 To be sure, the Constitution requires the provision 

of religious exemptions in some circumstances, but that right is not absolute. Even in the preSmith case most favorable to religious exemptions, Wisconsin v. Yoder, the Court clearly stated 

that the "activities of individuals, even when religiously based, are often subject to regulation by 

the States in the exercise of their undoubted power to promote the health, safety, and general 

welfare, or the Federal Government in the exercise of its delegated powers." 14 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, religiouslymotivated actions are not, as any claim to exemption under the Free Exercise clause must be 

weighed against other important interests. 

In fact, the Supreme Court has twice considered and rejected the right of an institution to 

discriminate in the name of religious liberty. In Newman v. Piggie Park, a restaurant argued that 

enforcement of the 1964 Civil Rights Act constituted an "interference with the 'free exercise of 

the Defendant's religion'"-a claim the Supreme Court dismissed and deemed "patently 

frivolous." 15 In Bob Jones University v. U.S., the Court took a religious university's Free 

Exercise claim far more seriously, but ultimately concluded that the federal government could 

withhold tax-exempt status from schools that engage in racial discrimination. The Court 

explained that the government had a "fundamental, overriding interest in eradicating racial 

discrimination in education--discrimination that prevailed, with official approval, for the first 

165 years of this Nation's history. That governmental interest substantially outweighs whatever 

burden denial of tax benefits places on petitioners' exercise of their religious beliefs." 16 Thus 

11 Employment Division v. Smith, 494 U.S. 872, 878-79 (1990). 12 Reynolds v. U.S, 98 U.S. 145, 166 (1878). 13 Jd at 167. 14 Wisconsin v. Yoder, 406 U.S. 205, 220 (1972). 15 Newman v. Piggie Park, 390 U.S. 400, 402 fn 5 (1968). 16 Bob Jones University v. U.S, 461 U.S. 574, 604 (1983). 

4 
48 


KING-6430 with DISTILLERInsert offset folio 27 here 23645.027

FADA's premise, that the First Amendment entails an absolute right to discriminate, runs 

contrary to well-established Free Exercise principles. 17 

II. The Establishment Clause of the First Amendment Prohibits Religious 

Accommodations That Seriously Harm Third Parties 

a. The General Legal Principle of Third Party Harms Creating A Violation Of 

The Establishment Clause 

The religion clauses of the First Amendment state, "Congress shall make no law 

respecting an establishment of religion, or prohibiting the free exercise thercof."18 Read together, 

these two clauses are understood to protect individual religious belief and practice through the 

Free Exercise Clause, while through the Establishment Clause, constraining the state from 

expressing favor or disfavor towards any particular religion or religion in general. 19 In 

interpreting the bounds of the First Amendment, the Supreme Court has consistently held that 

religious accommodations that cause a meaningful harm to other private citizens violate the 

Establishment Clause?0 In Estate of Thorton v. Caldor, the Court held that a Connecticut statute 

giving workers the right to a Sabbath day of rest impermissibly advanced religion by "impos[ing] 

on employers and employees an absolute duty to conform their business practices to the 

particular religious practices of the [observing] employee."21 Similarly, in Texas Monthly, Inc. v. 

Bullock, the Court found that a state tax exemption for religious periodicals violated the 

Establishment Clause by forcing non-religious publications to "become indirect and vicarious 

donors" to religious entities.22 While the Court upheld a religious exemption law in Cutter v. 

Wilkinson, it nevertheless noted that accommodations need not be granted where they "impose 

unjustified burdens" on third parties or the State.23 Two years ago, when the Supreme Court 

upheld a religious accommodation under the Religious Freedom Restoration Act in Burwell v. 

17 The Supreme Court has read a ''ministerial exception" into the First Amendment, thus preventing ''go\·crnment 

interference with an internal church dc:cision that affects th~ faith and mission of the church itself'' See HosannaTabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S. Ct. 694, 707 (2012). See also McClure v. 

Salvation Army, 460 F.2d 553 (5th Cir. 1972) (cert. denied, 409 U.S. 896 (1972)). As a corollary, the Court has also 

held that Congress may choose to exempt religious institutions from some antidiscrimination laws without violating 

the Establishment Clause. See Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987). Amos, 

however, merely held that the Establishment Clause permitted Congress lo exclude religious corporations from a 

provision of Title Vll banning religious discrimination, not that the Free Exercise Clause compelled it to do so. 18 U.S. CONST. amend. l. 19 See, e.g., Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 696 (!994) ("A proper 

respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of 'neutrality' 

toward religion ... favoring neither one religion over others nor religious adherents collectively over nonadherents"} 

(internal quotation marks omitted). 20 See Estate ofThontton v. Caldor, 472 U.S. 703,709 (1985). See also Frederick Mark Gedicks & Rebecca G. Van 

Tassell, RFRA 1:-xemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 

HARV. C.R.-C.L. L. REV. 343, 357 (2014); Frederick Mark Gcdicks & Andrew Koppelman, Invisible Women: Why 

an Exemption for Hobby Lobby Would Violate the Establishment Clause, 67 VAND. L. REV. EN BANC 51 (2014); 

Board of Education qf Kilyas Joel Village School District, 5!2 U.S. at 725 ("There is a point, to be sure, at which an 

accommodation may impose a burden on nonadherents so great that it becomes an establishment.") (Kennedy, .1., 

concurring). 

21 Caldor, 472 U.S. at 709. 22 Texas Monthly, Inc. v. Bullock, 489 U.S. l, 14 (1989) (internal quotations omitted). 23 Cutterv. Wilkinson, 544 U.S. 709, 726 (2005). 
49 


KING-6430 with DISTILLERInsert offset folio 28 here 23645.028

Hobby Lobby, Justice Alito repeatedly emphasized the fact that the accommodation req,uested 

under RFRA would have "exactly zero" negative impact on others' rights and intcrests:4 And 

most compellingly, a federal court recently found that language very similar to the federal 

FADA, Mississippi's HB 1523, improperly harms the rights of others in violation of the 

Establishment Clause. In a decision ordering that a state law be enjoined, the court found that the 

law "violates the First Amendment because its broad religious exemption comes at the expense 

of other citizens."25 

FADA conflicts with the above constitutional principles in violation of the Establishment 

Clause. It provides accommodations that require private citizens to bear the cost of others' 

religious faith. 

b. FADA Will Impose Material And Identifiable Third Party Harms 

FADA, in the name of religious diversity, disrupts the careful balance set forth in the 

U.S. Constitution between private religious practice, non-endorsement of religion by the state, 

and other fundamental rights such as rights to equality and liberty. It substantially oversteps the 

limits of the Establishment Clause by immunizing religious believers from compliance with laws 

that are generally applicable to all other American citizens. These laws include not only federal 

antidiscrimination protections, but a remarkably broad set of federal laws and regulations that 

provide important rights, benefits, or protections to all private citizens regardless of their marital 

status or sexual identity. In exempting religious believers from an obligation to respect the 

equality and liberty rights of all Americans, FADA sacrifices the rights of many in order to 

accommodate the religious preferences of a few. 

i. F ADA Strips Americans of Numerous Legal Rights and Protections In 

Order to SatisfY Certain Religious and Moral Preferences 

Under F ADA, the federal government may not take any negative action (termed 

"discriminatory action" in the bill) against a person because they act in accordance with a 

religious belief or moral conviction that marriage is or should be recognized as the union of two 

individuals of the opposite sex, or two individuals of the same sex, or that extramarital relations 

are improper. "Discriminatory action" is defined broadly to include enforcement of neutral laws 

and regulations of general applicability, such as those that prohibit discrimination by recipients 

of government grants or provide protections and benefits to emplolees, patients, students, and 

other private citizens. "Person" is defined to mean both individuals2 and corporations, including 

secular, for-profit companies.27 Organizations that choose to discriminate against same-sex 

couples, different-sex couples, unmarried parents, or others on the basis of their beliefs are given 

24 See Burwell v. Hobby Lobby Stores, Inc. 134 S.Ct. 2751, 2759 (2014) ("The effect of the HHS-created 

accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would 

be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved 

contraceptives without cost sharing."). 25 Barberv. Bryant, No. 3:16-CV-417-CWR-LRA at 55 (S.D. Miss. Jun 30, 2016) (order granting preliminary 

injunction). 

26 Excepting federal employees acting within the scope of their employment. FADA § 6(3)(A). 27 Unless a federal contractor acting within the scope of a federal contract FADA § 6(3)(B). 
50 


KING-6430 with DISTILLERInsert offset folio 29 here 23645.029

blanket immunity under F ADA from administrative, and perhaps even judicial, enforcement of 

the law. 

In exempting religious and moral objectors from federal laws and regulations, F ADA 

would harm third parties in numerous ways. The bill defines "discriminatory action" by the 

government to include, among other things, "any action" taken by the federal government to 

"alter in any way the Federal tax treatment of, or cause any tax, penalty, or payment to be 

assessed against" a person.28 Currently, numerous federal laws create tax benefits and penalties 

in order to advance important public interests. F ADA would substantially interfere with these 

laws, eliminating or reducing protections for many Americans, especially, but not only, lesbian 

and gay married couples and people who have "extramarital relations"- a particularly imprecise 

term that is most likely constitutionally infirm on account of its vagueness. The rights and 

interests of single parents and pregnant women will likely be most negatively effected by the 

immunity the law proposes to grant to those who regard "extramarital relations" as improper. 

Specifically, FADA would allow discrimination in the provision of the following 

mandated health and financial benefits: 

Health Care: Under F ADA, group health plans, employers, and healthcare providers 

would receive protection from federal enforcement actions when they discriminate based 

on their religious or moral beliefs. 

o Group health plans covered by the Employee. Retirement Income Security Act of 

1974 (ERISA) would be immune from federal enforcement actions if they violate 

numerous requirements imposed on them under 26 U.S.C. Chapter 100. Such 

violations would normally result in tax penalties under 26 U.S.C. § 4980D. For 

example, plans could restrict benefits for hospital stays following childbirth for 

unmarried, LGBTQ, or some surrogate mothers;29 deny coverage based on any 

preexisting conditions that are the "result" of same-sex relationships or nonmarital sex, such as sexually transmitted infections or pregnancy;30 or deny 

coverage for mandated preventative services-such as counseling for sexually 

transmitted infections, contraception, or domestic violence screening and 

counseling- to employees who are married to a same-sex partner or who have 

extramarital relations/sex31 Covered health plans could also violate provisions of 

the Consolidated Omnibus Budget Reconciliation Act (COBRA) without being 

28 FADA § 3(b)(l). 29 This would violate provisions of the Newborns' and Mothers' Health Protection Act. See 26 U.S.C. § 281 J. Note 

that this provision only applies to plans that have elected to cover childbirth. 30 This would violate provisions of the tax code that prohibit health plans from excluding coverage for pre-existing 

conditions. See 26 U.S.C. § 9815.1; 45 U.S.C. § 300gg-3. Note, however, that while covered plans could not impose 

a pre-existing condition exclusion, they could decide not to provide coverage for a particular benefit for all 

enrollees, regardless of whether the condition is pre-existing. 31 This would violate provisions of the Patient Protection and Affordable Care Act (ACA), as incorporated into the 

tax code. 26 U.S.C. § 9815.1. Under the ACA, health plans must provide preventive health services without cost 

sharing. See 42 U.S.C. § 300gg-13. Preventive health services includes coverage for testing and counseling for 

certain sexually transmitted infections, contraception, and domestic and interpersonal violence screening and 

counseling for women. See U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, Preventive Services Covered Under 

the Affordable Care Act (last rev'd Sept. 27, 2012) htip:J/www.hhs.gov/healthcare/facts-and-featureslfactsheets/preventive-services-covered-undcr-aca/index.html. 
51 


KING-6430 with DISTILLERInsert offset folio 30 here 23645.030

subject to a tax- for example by refusing to consider a divorce a "qualifying 

event" for same-sex couples.32 

o F ADA states that health care institutions would not be protected if they refused 

"to provide medical treatment necessary to cure an illness or injury" because of 

their religious or moral beliefs.33 However hospitals would still be protected if 

they discriminated by refusing to provide financial assistance for such care, or by 

refusing to provide preventative care that is not "necessary to cure an illness or 

injury." 

o F ADA could also protect applicable large employers from tax penalties that they 

would normally incur under 26 U.S.C. § 4980H if they denied adequate health 

coverage to full-time employees or their dependents because of the employer's 

religious or moral beliefs about same-sex marriage and extramarital relations/sex. 

Employers would be protected if they, for example, denied health coverage to 

dependents that are the "result" of same-sex marriages or extramarital 

relations/sex, such as children born to LGBTQ or unmarried parents, or with 

surrogates. 34 

o Nonprofit religious hospitals could violate provisions of the Patient Protection and 

Affordable Care Act (ACA) that impose certain obligations on charitable 

hospitals yet maintain their tax-exempt status.35 For example, hospitals could 

potentially refuse to apply a mandated financial assistance policy to patients who 

are married to someone of the same sex or who have extramarital relations/sex.36 

Retirement Benefits: A tax qualified retirement plan that denies same-sex spouses the 

right to receive benefits in the fonn of a qualified joint and survivor annuity (QJSA) 

and/or qualified preretirement survivor annuity (QPSA), as is required under 26 U.S. C. § 

40l(a)(ll), would not risk losing tax-qualified status. Under 26 U.S.C. § 417. the right to 

a QJSA or QPSA may be waived by a plan beneficiary only with spousal consent. Under 

F ADA, a plan could discriminate against same-sex spouses by denying them this 

protection as well as other protections and privileges under other provisions of 26 U.S.C. 

§401- such as the right to withhold consent for a participant's loan-- without losing the 

plan•s qualified status37 

32 26 U.S.C. § 49808. 33 FADA § 6(3)(C). 34 26 U.S.C. § 4980H (imposing penalties for any applicable large employer that "fails to offer to its full-time 

employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible 

employer-sponsored plan:·). 35 See 26 U.S.C. § 50J(r); 26 U.S.C. § 4959. 36 Under the revised FADA, health care institutions would not be protected if they refused "to provide medical 

treatment necessary to cure an illness or injury" because of their religious or moral beliefs. FADA § 6(3)(0). 

However hospitals would still be protected if they discriminated by refusing to provide financial assistance for such 

care, or by refusing to provide preventative care that is not "necessary to cure an illness or injury." Further, the 

introduced FADA contains no exemption whatsoever related to the provision of medical care. H.R. 2802, !14th 

Cong. (20 15). 37 For more detailed infonnation on spousal rights related to qualified retirement plans, see INTERNAL REVENUE 

SERVICE, Application of the Windsor Decision and Rev. Ru/. 2013-17 to Qualified Retirement Plans Notice 2014-19 

(2014) available at https:i/www.irs.gov/pub/irs-drop/n-14-19.pdf. While FADA would limit federal ent<1rcement of 

these provisions, they arc also incorporated in ERISA; therefore a plan participant or beneficiary could enforce the 

requirements under ERISA section 502, 29 USC § 1132. Nevertheless, federal enforcement is an important 

protection for those who are unahle to access or afford an attomey. Further, an increase in the adoption of class 

action prohibitions v.:ithin benefit plan documenls \viii make federal enforcement even more e~sentiai to employees. 
52 


KING-6430 with DISTILLERInsert offset folio 31 here 23645.031

Other important rights and benefits that are not enforced through tax penalties would also 

be thwarted by F ADA. The bill does not merely restrict the regulation of tax benefits and fees, 

but bans "any action" taken by the federal government to cause any "penalty, or payment to be 

assessed against" a person. While it's possible that this language was intended to refer only to 

tax penalties, such a narrow interpretation of the bill is belied the text and by the fact that the bill 

has gone through several revisions and this language has not been corrected38 If discriminatory 

action is therefore interpreted to include the imposition of any government penalty, this language 

would severely limit administrative enforcement of a wide range of laws enforced through fines 

and litigation by government agencies such as the Attorney General (AG), the Equal 

Employment Opportunity Commission (EEOC), the Department of Labor (DOL), the 

Department of Health and Human Services (HHS), the Department of Housing and Urban 

Development (HUD), the Federal Trade Commission (FTC), and the Department of Justice 

(DOJ). For example, under this clause, religious or moral beliefs about marriage and sexuality 

could immunize a person from any enforcement action brought by the federal government in 

connection with otherwise illegal conduct in the following circumstances: 

The Civil Rights Act,39 Pregnancy Discrimination Act,40 Americans with Disabilities 

Act,41 Fair Housing Act,42 and Equal Credit Opportunity Act43 all prohibit some forms of 

discrimination against customers, employees, renters, or creditors who are in same-sex 

relationships,44 are unmarried and pregnant or parenting,45 or who have a disability (such 

See James P. Baker, A Sea Change for ERISA Litigation: Using Contractual Bars to Avoid Class Action Claims Feb. 

2014) available at http://www.bakcrmckcnzie.com/ALNAASeaChangeDccl3/. 38 Similar language also appears in the federal FADA's state corollaries. See, cg: Georgia HB 757, Mississippi HB 

1523, Iowa Assembly Bill2207, Wyoming HB 0098. 39 42 U.S.C. §§2000a et seq; §§2000c et seq. 40 42 U.S.C. § 2000e(k). 41 42 U.S.C. § 12101 et seq. 42 42 U.S.C. §§ 3601, et seq. 43 15 u.s.c. § 1691. 44 The Civil Rights Act's ban on employment discrimination on the basis of sex has been interpreted to protect 

employees who are LGBT or challenge gender norms and expectations. See Price Waterhouse v. Hopkins, 490 U.S. 

228, 251 ( 1989) ("'"[l)n forbidding employers to discriminate against individuals because of their sex. Congress 

intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'" 

Los Angeles Dept of Water & Power v. Manhart, 435 U.S. 702, 435 U.S. 707, n. 13 (1978), quoting Sprogis v. 

United Air Lines. Inc., 444 F.2d 1194, 1198 (CA7 1971)"). See also E.E.O.C. v. Boh Bros. Canst. Co., L.L.C., 731 

F.3d 444 (5th Cir. 2013) (holding prohibition of sexual harassment in Title VII protected a male employee whose 

male co-workers called him "kind of gay" and a "faggot."); Macy v. Department of Justice, EEOC Appeal No. 

0120120821 (April 20, 20 12) (finding that Title VII of the Civil Rights Act prohibits discrimination based on gender 

identity); Fabian v. Hasp. of Centr. Conn., 2016 WL 1089178 (D. Conn. 2016); David Baldwin v. Dep't of 

Transportation, EEOC Appeal No. 120133080 (July 15, 2015) (finding that Title VII of the Civil Rights Act 

prohibits discrimination based on sexual orientation); U.S. EQUAL EMPL'T OPPORTUNlTY COMM'N, Examples ~f 

Court Decisions Supponing Coverage of LGBT-Related Discrimination Under Title HI, 

http://www.ceoc.gov/ecoc/newsroom/wyskflgbtexamplesdecisions.cfm (last visited Mar. 16, 2016). LGBT persons 

and families also have some protections under the sex and familial status discrimination provisions of the Fair 

Housing Act. See HUD.Gov. Ending Housing Discrimination Against Lesbian, Gay. Bisexual and Transgender 

Individuals and Their Families: Enriching and Strengthening Our Nation, 

http://portal.hud.gov/hudportal/HUD?src=/programoffices/fairhousingequalopp/LGBTHousingDiscrimination (last 

visited Mar. 16, 2016) ("a lesbian, gay, bisexual, or transgender (LGBT) person's experience with sexual orientation 

or gender identity housing discrimination may still be covered by the Fair Housing Act"); Thomas v. Osegueda eta/, 

9 
53 


KING-6430 with DISTILLERInsert offset folio 32 here 23645.032

as HIV/AIDS) that may be linked to non-marital sex.46 The EEOC, HUD, and the FTC 

would be unable to investigate or prosecute these claims against a business, employer, 

landlord, or lender, or even provide a "right to sue" letter, as this could be considered an 

action that could cause or threaten a penalty to be assessed against a person because of 

their religious beliefs. 

The Family and Medical Leave Act (FMLA)47 guarantees leave to employees to care for 

certain family members, including a same-sex spouse or a child born to an unmarried 

parent. FADA would prevent the DOL Wage and Hour division from enforcing FMLA 

claims against an employer whose actions are based on religious or moral beliefs about 

marriage and sexuality.48 

Title I of ERlSA 49 and its amendments, including the ACA, Newborns' and Mothers' 

Health Protection Act, Mental Health Parity and Addiction Equity Act, and other health 

laws guarantee important health benefits to workers and their families. Under F ADA, the 

DOL Employee Benefits Security Administration would be unable to take any 

No. 2:2015cv00042 - Document 11 (N.D. Ala. 2015) available at http://law.justia.com/cases/federal/districtcourts/alabama/alndcc/2:2015cv00042/154020!11/. In addition, a lawsuit recently filed by Lambda Legal has the 

potential to expand LGBT protections under the Fair Housing Act. See Chris Johnson, New Lawsuit Asserts AntiLGBT Bias Illegal in Housing, WASHINGTON BLADE (Jan 16, 2016), 

http://www. washingtonblade.com/20 16/01 /16/new-lawsuit -could-extend-lgbt -success-to-housing-discrimination/. 

Note, however, that there are no protections from sex discrimination-and therefore sex stereotyping, sexual 

orientation, or gender identity discrimination-within federal public accommodations law. See 42 U.S.C. § 2000a. 45 Title VII's sex and pregnancy discrimination provisions in some cases protect workers from discrimination on the 

basis of marital status, including discrimination against unmarried pregnant or parenting workers. See U.S. EQUAL 

EMPLOYME~T OPPORTUNITY COMMISSION, Pre-Employment Inquiries and Marital Status or Number ~f Children 

(last visited May 17, 2016) https://www.ecoc.gov/laws/practices/inquiriesmaritalstatus.cfm; Hamilton v. Southland 

Christian School, 680 F.3d 1316 (lith Cir. 2012) (reversing a trial court's grant of summary judgement to a 

religious school that fired a teacher who conceived while unmarried. and finding that "Title VII docs not protect any 

right to engage in premarital sex, but as amended by the Pregnancy Discrimination Act of 1978, Title Vll docs 

protect the right to get pregnant."): Cline v. Catholic Diocese of Toledo. 206 F . .ld 651, 65R (6th Cir. 2001) ("[t]he 

central question in this case, therefore, is whether [a religious school's] nonrcncwal of Cline's contract constituted 

discrimination based on her pregnancy as opposed to a gender-neutral enforcement of the school's premarital sex 

policy. While the fom1er violates Title VII, the latter does not."; Ganzy v. A/len Christian School, 995 F.Supp. 340 

(E.D.N.Y. 1998) (holding that the First Amendment does not exempt religious schools from compliance with the 

Pregnancy Discrimination Act, and therefore firing a pregnant teacher could violate the law unless the school 

demonstrated she was fired because of violation of a moral code applied equally to male and female employees); 

Vigars v. Valley Christian Ctr. of Dublin, Cal., 805 F. Supp. 802, 808 (N.D. Cal. 1992) ([t]he fact that defendants' 

dislike of pregnancy outside of marriage stems from a religious be1ief.. does not automatically exempt the 

termination decision from Title VII scrutiny"); Dafter v. Wahlert High Sch., 483 F. Supp. 266 (N.D. Iowa 1980). 

The Fair Housing Act prohibits discrimination in housing based on "familial status," which covers persons who are 

pregnant or Jive with a child under 18, regardless of their marital status. See 42 U.S.C. §§ 3601, et seq. The Equal 

Credit Opportunity Act forbids discrimination on the basis of marital status in lending, and applies regardless of 

sexual orientation or whether someone is an unmarried parent. 15 U.S. C.§ 1691. Similar provisions are imposed on 

foreign banks and cooperative banks. See 12 U.S.C.A. § 3106a; 12 U.S.C. § 3015(a)(4). 46 HIV/ AIDS meets the definition of "disability" under the ADA. See ADA.GOV, Fighting Discrimination Against 

People with HIVIAIDS (last visited May 18, 2016) http://www.ada.gov/aids/. 47 29 U.S.C. §§2601 et seq. 48 An employee who is wrongfully denied leave could attempt to bring a civil suit to enforce F!\1LA rights. 29 

U.S.C. § 2617. However as will be discussed below, F ADA may in some cases be used as a defense within a private 

suit. See inji-a, fn. 54-59 and accompanying text. Further, federal enforcement is an important protection for 

employees who face other barriers to filing a private suit. 49 29 U.S.C. §§1001 et. seq. 

10 
54 


KING-6430 with DISTILLERInsert offset folio 33 here 23645.033

enforcement action against employers who refused to provide mandated health benefits to 

LGBTQ and unmarried pregnant or parenting employees and their families. 5° 

Title I of the ACA imposes regulatory requirements on issuers of qualified health plans 

on health insurance exchanges as well as issuers of health insurance coverage in the nonexchange individual and group markets. These regulations include provisions added to 

Title XXVII of the Public Health Service Act. 5

1 Among other things, the rules require 

insurers, agents, brokers, and insurance navigators to offer services on a 

nondiscriminatory basis. These requirements, including the requirements for health 

insurance issuers to offer coverage to anyone who applies, are enforced by HHS.52 FADA 

would restrict HHS's ability to enforce Title I. 

F ADA is written so broadly that it could even be interpreted to prevent the DOJ from 

investigating or enforcing the Shepard Byrd Hate Crimes Prevention Act, 5

3 a federal hate 

crime law, if the perpetrator of a hate crime could show that his or her actions were 

motivated by religious or moral beliefs about marriage and/or extramarital relations/sex. 

There are certainly additional otherwise-illegal acts that would be protected by F ADA; the 

list above is merely illustrative of the bill's reach. This overly broad bill threatens federal 

enforcement of nearly any law, regulation, or policy that protects American citizens without 

regard to their marital status or sexual practices. Americans who fail to conform to "traditional," 

religiously-based sex and gender norms will of course face the greatest harm. They may find 

themselves suddenly vulnerable to a range of health, housing, labor, and other violations of their 

rights and liberties, and cut off from any federal assistance in mitigating these harms. While 

couching itself as a narrow religious freedom bill, F ADA in fact creates sweeping protections for 

religious and moral objectors to violate a broad range of federal laws. 

ii. FADA Threatens Federal Judicial Enforcement of Civil Laws 

F ADA may not only limit the ability of federal agencies to enforce the law; it may also 

prevent the judiciary from enforcing federal law in suits between private parties. At first glance, 

50 ERISA also creates a private right of action, and under FADA it may remain possible for plan participants and 

beneficiaries to sue the employers or unions that sponsor those group health plans if they violate these protections. 

See 29 U.S.C § 1132. As with the FMLA, however, FADA is still significant in that it may be used as a defense 

even in private suits, and because federal enforcement provides important additional protections against ERISA 

violations. Additionally, it's worth noting that church plans are not subject to ERISA, but only to IRS enforcement 

Thus under F ADA, they would have even greater leeway to discriminate without consequence. 51 See, e.g., 42 U.S.C. §§ 300gg et seq.; l803l(c). 52 In most states, the state insurance exchange or state insurance regulator also has enforcement authority; state 

insurance regulators are the principal enforcers of these requirements against health insurance issuers. The 

introduction ofF ADA-like bills in many states, however~ may create opportunities for states to decline to take action 

against noncompliant health insurance issuers. See, e.g., H.B. 1523,2016 Leg., Res. Sess. (Miss. 2016) (signed into 

law by Governor Phil Bryant). See also H.B. 757, l53rd Gen. Assemb., Reg. Sess. (Ga. 2016); H.B. 284, 153rd Gen. 

Assemb,, Reg. Sess. (Ga. 2016); H.B. 2181, 28th Leg., Reg. Sess. (Haw. 2016); H.B. 2532, 28th Leg., Reg. Scss. 

(Haw. 2016); S.B. 2164, 99th Gen. Assemb., Reg. Sess. (Ill. 2015); H.B. 2207, 86th Gen. Assemb., Reg. Sess. (Iowa 

2016); H.B. 2211, 86th Gen. Assemb., Reg. Sess. (Iowa 2016); H.J.R. 96, 98th Gen. Assemb., Reg. Sess. (Mo. 

2016); H.J.R. 97, 98th Gen. Assemb., Reg. Sess. (Mo. 2016); S.J.R. 39, 98th Gen. Assemb., Reg. Sess. (Mo. 2016); 

H.B. 1107, 9lst Gen. Assemb., Reg. Sess. (S.D. 2016); H.B. 773, 2016 Gen. Assemb., Reg. Sess. (Va. 2016); S.B. 

41,2016 Gen. Assemb., Reg. Sess. (Va. 2016); H.B. 2631, 64th Gen. Assemb., Reg. Sess. (Wash. 2016); H.B. 2752, 

64th Gen. Assemb., Reg. Sess. (Wash. 2016). 53 18 U.S.C. § 249. 

11 
55 


KING-6430 with DISTILLERInsert offset folio 34 here 23645.034

such a reading seems overbroad. F ADA defines "discriminatory action" as actions taken "by the 

Federal Government."54 Further, the bill states that a religious or moral believer "may assert an 

actual or threatened violation of [FADA] as a claim or defense in a judicial or administrative 

proceeding ... against the Federal Government" (emphasis added). 5

5 However four circuit courts 

have held that a federal law with very similar language to F ADA may be used as a claim or 

defense in suits between private parties. Like F ADA, the Religious Freedom Restoration Act 

(RFRA) appears to constrain only governmental actions. The law states that the "Government 

shall not substantially burden a person's exercise ofreligion."56 Under a provision titled "Judicial 

Relief," it states that a person "whose religious exercise has been burdened in violation of 

[RFRA] may assert that violation as a claim or defense in a judicial proceeding ... against a 

government" (emphasis added). 5

7 While RFRA is most commonly used in suits where the federal 

government is a party, several courts have held that RFRA may be used as a claim or defense in 

some suits between private parties. 58 The Supreme Court has not addressed this issue. 59 

Considering the similarity between the basic structure and the "judicial relief' provisions 

ofF ADA and RFRA, it seems likcly that at least some federal courts will apply FADA to limit 

judicial enforcement of federal laws even in private lawsuits. If this were the case, not only 

would federal agencies be unable to enforce the laws discussed in the previous section, but 

private citizens would also be unable to enforce their rights through civil litigation. To give just 

one of many possible examples, it would mean that if an employer violated the FMLA by 

refusing to provide leave to an employee to care for his same-sex spouse or an unmarried mother 

to care for her newborn child, not only would the DOL be unable to bring a claim to enforce 

these employees' unambiguous FMLA rights-the employer could also claim FADA as a 

defense in a civil suit brought directly by the employee against their employer. Such an 

interpretation ofF ADA would even further restrict the rights and liberties of American citizens, 

especially LGBTQ persons and single parents, and would impose serious harms on many rightsholders in the name of respecting religious or moral diversity. 

iii. FADA Prohibits the Government From Denying Taxpayer Funds and 

Contracts to Organizations That Discriminate 

54 F ADA § 3(a). 55 FADA § 4(a). 56 42 u.s. c. § 2000bb-l. 

"Jd 

58 See Sara Lunsford Kohen, Relgious Freedom in Private L(Jl,t'Suits: Untangling 1Yhen RFRA Applies to Suits 

Involving Only Private Parties, 10 CARDOZO PCB. L. POL'Y & ETl!lCS J. 43 (2011); Hankins v. Lyght, 441 F.3d 96 

(2nd Cir. 2006) (holding that. at a minimum, RFRA should apply in suits brought by private parties where a 

government agency also could have sued). The Hankins court found that "pem1itting the assertion of the RFRA as a 

defense only when relief is also sought against a governmental party [] involves a convoluted drawing of a hardly 

inevitable negative implication." Hankins, 441 F.3d at 103. See also In re Young, 141 F.3d 854 (8th Cir. 1998) 

(allowing RFRA to be used as a defense within a private suit involving bankruptcy Jaw); EEOC v. Catholic 

University of America, 83 F.3d 455 (D.C. Cir. 1996) (applying RFRA equally to Title VII claims brought by EEOC 

and by a private plaintiff). The Ninth Circuit has taken a middle-of~ the-road approach, holding that RFRA applies to 

private parties acting "under color of law" as that term is defined in 42 U.S.C. § 1983. Sutton v. Providence St . 

.Joseph Medical Center, 192 F.3d 826 (9th Cir. 1999). 59 See McGill v. General Conference Corporation of Seventh-day Adventists, 563 U.S. 936, (2011) (denying writ of 

certiorari to a 6th Circuit case that held RFRA could not be used as a defense between private parties); Christians v. 

Crystal Evangelical Free Church, 525 U.S. 811 (1998) (denying writ of certiorari to an 8th Circuit case that upheld 

the use of RFRA in a suit involving private parties). 

12 
56 


KING-6430 with DISTILLERInsert offset folio 35 here 23645.035

F ADA would additionally prevent the federal government from taking any steps to 

"withhold, reduce, exclude, terminate, or otherwise make unavailable or deny any Federal grant, 

contract, subcontract, cooperative agreement, guarantee, loan, scholarship, license, certification, 

accreditation, employment, or other similar position or status" from a person or organization 

based on their religiously or morally-motivated speech or acts regarding marriage and/or 

extramarital relations/sex.60 In other words, the federal government may not disqualizy a person 

or entity from receiving taxpayer money, or administering an important state-created or -funded 

program, because they discriminate based on their religious beliefs or moral convictions.61 

Numerous provisions of federal law and policy currently impose nondiscrimination 

requirements on non-profit62 recipients of federal grants and contracts including social service 

providers, hospitals, and universities.63 Many of these laws prohibit sex (and pregnancy) 

discrimination, which, as noted previously, have been interpreted by administrative agencies and 

courts to include discrimination based on sexual orientation or marital status.64 Other laws 

explicitly prohibit sexual orientation discrimination by grantecs.65 At least one law explicitly 

discourages marital status discrimination.66 

60 See FADA § 3(b)(3). 61 Similar provisions of FADA additionally ban the federal government from withholding any "entitlement 

or benefit under a Federal benefit program, including admission to, equal treatment in, or eligibility for a degree 

from an educational program" or from withholding or denying access to "Federal property, facilities, educational 

institutions, speech fora (including traditional, limited, and nonpublic fora), or charitable fundraising campaigns 

from or to such person" based on the person's religiously-motivated acts. See FADA §§ 3(b)(4)- (b)(6). These 

provisions, along with FADA's prohibition on withholding a scholarship based on a person's religious speech and/or 

acts, may override two important Supreme Court opinions that allow the government to exercise discretion over the 

use of state resources. See Locke v. Davey, 540 U.S. 712 (2004) (holding that a state scholarship program that did 

not permit students to use the scholarship at an institution where they are pursuing a degree in devotional theology 

did not violate the Free Exercise Clause); Christian Legal Soc. v. Martinez, 561 U.S. 661 (2010) (holding that a 

nondiscrimination requirement that student groups at a public university adopt open membership policies in order to 

receive official recognition did not violate the right to free exercise or speech.). 62 For-profit contractors acting within the scope of a federal contract are not deemed "persons" in FADA. See § 

6(3)(B). 

63 See, e.g. 42 U.S.C. § 18116 ("[A]n individual shall not, on the ground prohibited under title VI of the Civil Rights 

Act of 1964 (42 U.S. C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the 

Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 794 of title 29, be excluded from participation 

in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of 

which is receiving Federal financial assistance. including credits, subsidies. or contracts of insurance ... "); 20 U.S.C. 

§ 1681 ("No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the 

benefits of~ or be subjected to discrimination under any education program or activity receiving Federal financial 

assistance"); 42 U.S.C. § 5672 (applying antidiscrimination requirements to grants funded by the Office of Justice 

Programs). 

64 See supra fns. 44-45 and accompanying text. 65 42 U.S.C. § 13925(b)(l3) ("No person in the United States shall, on the basis of actual or perceived ... sex, 

gender identity (as defined in paragraph 249(c)(4) of title 18), sexual orientation, or disability, be excluded from 

participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in 

whole or in part with li.mds made available under the Violence Against Women Act of 1994"); 42 U.S.C. § 294e-J 

("To be eligible for a grant under this section [Mental and behavioral health education and training grants], an 

institution shall demonstrate-(!) participation in the institutions' programs of indiwiduals and groups from ... 

genders and sexual orientations."). Sexual orientation discrimination by federal contractors is also prohibited by 

executive order. See Exec. Order No. 13,672, 79 Fed. Reg. 42,971 (July 23, 2014). FADA would additionally 

weaken an executive order that requires some government contractors, as a condition of eligibility, to disclose their 

13 
57 


KING-6430 with DISTILLERInsert offset folio 36 here 23645.036

FADA would prevent the federal government, including the DOL's Office of Federal 

Contract Compliance Programs, from enforcing these antidiscrimination provisions against nonprofit organizations that hold religious beliefs or moral convictions that marriage is or should be 

recognized as the union of two individuals of the opposite sex; or two individuals of the same 

sex; or extramarital relations are improper. It would also take away federal agencies' 

discretionary power to deny taxpayer money to non-profit organizations that discriminate on the 

basis of sexual orientation, even where not mandated by federal law or policy. In practice, this 

would allow organizations to apply for a grant or contract to provide particular services, and then 

refuse to perform those same services on the basis of a religious or moral belief regarding sex or 

marriage. For example, a health clinic could receive a Title X grant to provide family planning 

care, and then require that patients provide a marriage license in order to qualify for such 

services. Another health clinic could receive a Ryan White grant to provide services to people 

with HIV/AIDS and then decline to work with same-sex married couples. A domestic violence 

shelter funded by a Violence Against Women Act grant could require all residents to attest their 

opposition to marriage equality before securing housing. Placing these types of religious and/or 

moral conditions and restrictions on the use of public monies would clearly harm the intended 

beneficiaries of those funds. 

This provision of F ADA would have especially significant effects in the context of 

government contracts to provide essential services such as healthcare. For example, the federal 

government contracts with private companies to provide Medicare Advantage Plans to seniors 

and people with disabilities. 67 Even if a company had already signed a contract with the federal 

government to provide particular services to Medicare enrollees, these companies might argue 

that FADA entitles them to stop providing certain services based on their religious beliefs or 

moral convictions-such as STI testing or treatment to patients who are unmarried, or LGBTQaffirming mental and reproductive health services. 

F ADA may also limit the ability of the federal government to prevent discrimination by 

state employees. While F ADA does exempt federal employees acting "within the scope of their 

employment"68 from the bill's protections, it does not exempt state employees. Thus the DOJ and 

other federal agencies would be unable to take any action to ensure that state actors comply with 

federal law, including the Supreme Court's decision in Obergefell v. Hodges. This limitation is 

especially significant since several states have passed or attempted to pass laws that provide 

religious exemptions to state workers who are opposed to marriage equality. 69 If FADA were 

compliance with labor laws, including antidiscrimination laws. Fair Pay and Safe Workplaces Exec. Order No. 13, 

673,79 FR 45,309 (Aug. 5, 2014). 66 See 42 U.S.C, § 12639 (providing that programs that receive federal financial assistance under the National 

Service Trust Program are evaluated to determine their effectiveness in "recruiting and enrolling diverse participants 

in such programs ... based on ... marital status."). 67 See Social Security Act§ 1857,42 U.S.C. § 1395w-27. 68 FADA § 6(3)(A). 69 See H.B. 757, 153rd Gen. Assemb., Reg. Sess. (Ga. 2016) (vetoed by Governor Nathan Deal); S.J.R. 39, 98th 

Gen. Assemb., Reg. Sess. (Mo. 2016) (voted down in committee); H.B. 1523, 2016 Leg., Res. Sess. (Miss. 2016). 

Mississippi's extremely broad religious exemption Jaw was signed into law by Governor Phil Bryant. For an 

analysis of the law, see Memorandum from the Public Rights/Private Conscience Project to Interested Parties, 

Mississippi H.B. 1523 & the Establishment Clause (Apr. 5, 2015) available at 

http://web.law.columbia.edu/sites/defaultlfiles/microsites/gender-sexuality/files/memoregardingmshbl523.pdf. See 

14 
58 


KING-6430 with DISTILLERInsert offset folio 37 here 23645.037

enacted, government workers in Mississippi or Kentucky, for example, would be allowed to 

refuse to issue marriage licenses to, or to marry, same-sex couples under both state and federal 

law. This would make same-sex couples' constitutional right to marry contingent on their finding 

a willing government employee, and subject these couples to discrimination and stigma by state 

actors. 

iv. FADA Imposes Dignitary Harms on LGBTQ and Other Citizens 

Finally, by specifically singling out for special protections only religiously-motivated 

discrimination based on sexual orientation and non-marital relations/sex, F ADA will produce 

significant third party harms by increasing the likelihood that LGBTQ people and single parents 

will face bias and pejorative treatment, including by government-funded actors. In Obergefell, 

Justice Kennedy explained, 

"Many who deem same-sex marriage to be wrong reach that 

conclusion based on decent and honorable religious or philosophical 

premises... But when that sincere, personal opposition becomes 

enacted law and public policy, the necessary consequence is to put the 

imprimatur of the State itself on an exclusion that soon demeans or 

stigmatizes those whose own liberty is then denied."70 

Like bans on same-sex marriage, F ADA would lend the color of law to discrimination, 

and therefore would demean and stigmatize a class of persons whose relationships have only 

recently been formally recognized by the state. 71 This stigma is even more acute when it occurs 

in programs regulated and funded by the state, or by state actors. 

The fact that the most recent version of the bill has added an immunity for sincerely held 

religious belief or moral conviction that marriage is or should be recognized as "two individuals 

of the same sex" does not mitigate the likelihood that the bill's overall effect will be to induce 

stigma against same-sex couples. As a matter of fact, the bill's central purpose (as indicated, 

inter alia, in the Committee's Memo noticing the hearing on FADA), is to address the interests 

of "organizations and individuals that maintain a traditional view of marriage [and] have raised 

concerns that the government will usc the Supreme Court decision in Obergefell v. Hodges as a 

legal basis to discriminate against them for holding such a view of marriage, potentially 

also H.B. 130, 2016 Leg., Reg. Scss. (Ala. 2016); H.B. 236/ S.B. 120, 29th Leg., Reg. Sess., (Alaska 2016); H.B. 

401,2016 Leg., Reg. Sess. (Fla. 2015); H.B. 14,2016 Leg., Reg. Sess. (Ky. 2016); H.B. 17,2016 Leg., Reg. Sess. 

(Ky. 2016); H.B. 31,2016 Leg., Reg. Sess. (Ky. 2016); H.B. 28,2016 Leg., Reg. Sess. (Ky. 2016); S.F. 2158, 89th 

Leg., Reg. Sess. (Minn. 2015); H.F. 2462, 89th Leg., Reg. Sess. (Minn. 2016); S.B. 440, 55th Leg., Reg. Sess. 

(Okla. 2015); S.B. 478, 55th Leg., Reg. Sess. (Okla. 2015); S.B. 1328, 55th Leg., Reg. Sess. (Okla. 2016); S.B. 116, 

2016 Gen. Assemb., !21st Sess. (S.C. 2015); H.B. 3150,2016 Gen. Assemb., !21st Sess. (S.C. 2015); S.B. 40,2016 

Gen. Assemb., Reg. Sess. (Va. 2016). Two states even introduced bills to punish government workers who 

recognize same-sex marriage, ban the use of funds to enforce court orders requiring recognition of same~sex 

marriage, and instruct state courts to dismiss any legal challenges to the bills. See H.B. 1599, 55th Leg., Reg. Sess. 

(Okla. 2015); S.B. 805, 55th Leg., Reg. Sess. (Okla. 2015); S.B. 973, 55th Leg., Reg. Sess. (Okla. 2016); H.B. 3022, 

2016 Gen. Asscmb., !21st Sess. (S.C. 2016). 70 Oberg~fe/1 v. Hodges, 135 S. Ct. 2584, 2602 (2015). 71 Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 

15 
59 


KING-6430 with DISTILLERInsert offset folio 38 here 23645.038

jeopardizing a tax-exempt status or other relationships they may have with the government ... "72 

It is implausible that any party might marshal a credible claim that they are entitled to an 

exemption from federal law under F ADA on account of their religious or moral conviction that 

marriage is or should be recognized as "two individuals of the same sex." 

All of the aforementioned religious accommodations violate the Establishment Clause by 

shifting a material burden from religious actors to other private citizens. As an overly broad 

religious accommodation that will ham1 third parties, FADA violates the First Amendment's 

Establishment Clause. 

c. F ADA Violates the Establishment Clause By Endorsing Particular Religious 

Beliefs 

Finally, the government may violate the Establishment Clause if its actions tend to 

express support for a particular religious faith or belief. 73 F ADA runs the risk of violating the 

Establishment Clause by "establish[ing] an official preference for certain religious beliefs over 

othcrs"74 and improperly endorsing, or seeming to endorse, particular religious beliefs. In the 

Mississippi opinion mentioned above, the court found that HB 1523 violated non-endorsement 

principles since "the State has put its thumb on the scale to favor some religious beliefs over 

others."75 The non-endorsement principle is best articulated in several Supreme Court cases that 

involve expressive actions which may be attributed to the state, such as those taken by 

government employees, on government property, or during government-sponsored activities.76 

The applicable test in these cases is whether, in light of the context and history of the relevant 

72 Memorandum from House of Representatives Committee on Government Oversight and Reform, noticing: 

Full Committee hearing: "Religious Liberty and H.R. 2802, the First Amendment Defense Act (FADA)", dated July 

8, 2016. 73 See, e.g., Lynch v. Donnelly, 465 U.S. 668,687 (1984) ("Endorsement sends a message to nonadherents that they 

are outsidersj not full members of the political community, and an accompanying message to adherents that they arc 

insiders, favored members of the political community") (O'Connor, J., concurring); Santa Fe Independent School 

District v. Doe, 530 U.S. 290, 305 (2000) ("Contrary to the District's repeated assertions that it has adopted a 

'hands-off' approach ... the realities of the situation plainly reveal that its policy involves both perceived and actual 

endorsement of religion."); Texas Monthly, Inc. v. Bullock, 489 U.S. l, 8 (1989) ("the Constitution prohibits, at the 

very least, legislation that constitutes an endorsement of one or another set of religious beliefs or of religion 

generally"); U.S. v. Lee, 455 U.S. 252, 263 fn. 2 (1982) (Stevens, J., concurring) ("The risk that governmental 

approval of some and disapproval of others will be perceived as favoring one religion over another is an important 

risk the Establishment Clause was designed to preclude.''). 74 Barber v. Bryant, No. 3:16-CV-417-CWR-LRA at 47 (S.D. Miss. Jun 30, 2016) (order granting preliminary 

injunction). In evaluating a law very similair to FADA, the Mississipi district court found that "On its face, [the bill] 

constitutes an official preference for certain religious tenets. If ... specific beliefs are 'protected by this act,' it 

follows that every other religious belief a citizen holds is not protected by the act." I d. at 48. 75 Barber v. Bryant, No. 3:16-CV-417-CWR-LRA at 2 (S.D. Miss. Jun 30. 2016) (order granting preliminary 

injunction). 

76 See Santa Fe Independent School District, 530 U.S. 290; Lee v. Weisman, 505 U.S. 577,604 (1992) (Backmun, J., 

concurring) ("Government pressure to participate in a religious activity is an obvious indication that the government 

is endorsing or promoting religion"); McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 

(2005). See also Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 482 (2009) (Stevens, J., concurring) 

("[G]ovcrnmcnt speakers arc bound by the Constitution's other proscriptions, including those supplied by the 

Establishment and Equal Protection Clauses."). 

16 
60 


KING-6430 with DISTILLERInsert offset folio 39 here 23645.039

law or action, a reasonable observer would perceive a state endorsement of religion. 77 If so, such 

law or action amounts to a violation of the Establishment Clause. For example, if a mail carrier 

explicitly refused to deliver invitations for a same-sex couple's wedding because of his religious 

beliefs-a belief that is specifically protected by the introduced version of F ADA-this could 

cause a reasonable person to think that the government has endorsed the religious grounds for 

such opposition. 78 

What is more, providing public funds to an organization that places religious restrictions 

on the usc of those funds creates the perception that the government has endorsed the 

organization's religious beliefs.79 For example, awarding a grant to an organization that, for 

religious or moral reasons, explicitly refuses to provide services to same-sex couples and 

umnarried mothers could cause a reasonable observer to believe that the government supports the 

religious judgement that these populations are sinful or unworthy of assistance. This violates the 

Establishment Clause, which forbids the government from supporting organizations that "impose 

religiously based restrictions on the expenditure of taxpayer funds, and thereby impliedly 

endors[ing] the religious beliefs of" that organization. 80 

Conclusion: 

In summary F ADA creates overly broad religious accommodations that will impose 

manifold harms on private Americans and enable and encourage discrimination. As such, despite 

its name, it conflicts with the law and spirit of the Establishment Clause of the First Amendment. 

77 See Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 348 (1987) (O'Connor, J., concurring) ("To 

ascertain whether the statute conveys a message of endorsement~ the relevant issue is how it would be perceived by 

an objective observer, acquainted with the text, legislative history, and implementation of the statute.''); Santa Fe 

Independent School Dist. v. Doe, 30 U.S. 290, 308 (2005) ("In cases involving state participation in a religious 

activity, one of the relevant questions is whether an objective observer, acquainted with the text, legislative history, 

and implementation of the statute, would perceive it as a state endorsement of prayer in public schools") (internal 

citations omitted). 78 See generallv, Memorandum from the Public Rights/Private Conscience Project to Interested Parties, Proposed 

Conscience or Religion-Based Exemption for Public Officials Authorized to Solemnize Marriages (June 30, 2015) 

available at http://web.law.columbia.edu/sites/defaultlfiles/microsites/gendersexuality/marriageexemptionsmemojune30.pdf. The fact that the discrimination is pennissive rather than mandatory 

is not dispositive; like the students' religious speech in Santa Fe Independent School Dis/riel v. Doe, the decision of 

the state to permit such religiously-motivated conduct by government employees on government property in the 

provision of governnwnt services is "dearly a choice attributable to the State." Santa Fe Independent School District 

v. Doe, 530 U.S. 290,311 (2000). 79 Of course, the Supreme Court has held that not every grant given to a religious organization or group violates the 

Establishment Clause. The Court has typically upheld grants where secular services are provided to religious and 

secular institutions on a neutral basis. See, e.g., Mitchell v. Helms, 530 U.S. 793 (2000). Permitting religious grant 

recipients to discriminatet however, is not a matter of merely providing funds for the san1e services in a neutral way. 

Rather, by permitting grant recipients to refuse to provide funded services to certain populations based on a religious 

belief, the government allows the grant recipients to redefine state programs in religious terms, to the benefit of 

religion, and to the detriment of non-adherents and program recipients. 80 Am. Civd Liberties Union of Mass. v. Sebelius, 821 F. Supp. 2d 474, 488 (2012) (finding that it violated the 

Establishment Clause for a nonprofit to place religious conditions on the use offederal funds). See also 

Dodge v. Salvation Army, 1989 WL 53857 (S.D. Miss. 1989) ("The [government] grants constituted direct financial 

support in the forn1 of a substantial subsidy, and therefore to allow the Salvation Army to discriminate on the basis 

of religion ... would violate the Establishment Clause of the First Amendment in that it has a primary effect of 

advancing religion and creating excessive government entanglement."). 

17 
61 


KING-6430 with DISTILLERInsert offset folio 40 here 23645.040

Katherine Franke* 

Sulzbacher Professor of Law 

Columbia University 

Elizabeth Sepper 

Associate Professor 

Washington University in St. Louis School of Law 

Ariela Gross 

John B. and Alice R. Sharp Professor of Law and History 

USC Gould School of Law 

Sylvia A. Law 

Elizabeth K. Dollard Professor 

of Law, Medicine and Psychiatry 

NYU School of Law 

Martin S. Flaherty 

Leitner Family Professor of International Human Rights Law 

Founding Co-Director, 

Leitner Center ofintcmational Law and Justice 

Fordham Law School 

Suzanne Goldberg 

Herbert and Doris Wechsler Clinical Professor of Law 

Columbia University 

Carol Sanger 

Barbara Aronstein Black Professor of Law 

Columbia University 

J. Stephen Clark 

Professor of Law 

Albany Law School 

Florence Wagman Roisman 

William F. Harvey Professor of Law and 

Chancellor's Professor 

Indiana University Robert H. McKinney School of Law 

Gregory Magarian 

Professor of Law 

Titles and institutions are for identification purposes only. 

18 
62 

Ms. FRANKE. Thank you. 

We all agree, I think all of us on this panel agree and I would 

guess everyone in this room agrees that religious liberty is an important, indeed, a fundamental American value. Yet, as I’ve said, 

it receives robust protections under the U.S. Constitution in the 

First Amendment, under Federal laws including the Religious 

Freedom Restoration Act, and also including every State’s Constitution and many States, more than half of the States have enacted what we call mini-RFRAs or their own religious liberty statutes. 

In this sense FADA is a solution in search of a problem. While 

Chief Cochran’s termination raises very troubling issues for sure 

about religious liberty and public service, FADA would never address his termination. The facts of his termination don’t fall under 

any reading of FADA within the protections that it would create. 

So even more worrisome than the fact that FADA is creating a 

solution to a problem that doesn’t exist, FADA does not defend but 

rather violates the First Amendment. It does so by unsettling the 

delicate balance our Constitution and our courts have struck between protecting free—the free exercise of religion and preventing 

the establishment of religion by the Federal Government. 

So how is this so? Well, as I’ve said, and I would insist that religious liberty is very important. No court, including the Supreme 

Court, and no reasonable scholar of the First Amendment would 

hold the view that religious liberty rights are always absolute. To 

be sure, our Constitution adamantly and absolutely protects religious belief, but it does not absolutely protect every single act that 

one takes in the service of that belief. These beliefs have to be reconciled with other fundamental rights and values that we hold 

dear. 

Yet this is exactly what FADA would do. It creates an absolute 

immunity from any penalty if a person can justify their actions 

with religious beliefs or moral convictions about marriage or sexuality. This immunity would attach regardless of the good or even 

compelling reason that the Federal Government has for a law that 

might conflict with that person’s religious beliefs or moral convictions. 

As the ranking member and many of the other members of this 

committee are well aware, not so long ago, opponents of racial 

equality made arguments almost exactly similar to those being 

used to defend the need for FADA today. They relied on a theology 

of segregation, a well-developed set of religious beliefs that people 

of different races were designed by God’s will to be separate from 

one another. These religious beliefs justified resistance to an evolving norm, constitutional, political, and social norm about racial 

equality, and on the basis of those beliefs, they demanded an exemption from laws that mandated racial equality in employment, 

education, housing, and in marriage itself. 

The Supreme Court unequivocally rejected those arguments. It 

recognized that the Federal Government had a fundamental overriding interest in eradicating racial discrimination and that the 

public had an interest that substantially outweighed whatever burden may be placed on the religious beliefs the defenders of Jim 

Crow segregation. 


KING-6430 with DISTILLER
63 

And where my colleague to my right Ms. Waggoner wants to distinguish the kinds of racial violence that we witnessed in the 1960s 

or really for most of the United States history from the kinds of 

violence that lesbian and gay people and unmarried people have 

suffered in this country, I would beg to differ. As Mr. Obergefell 

has noted and Mr. Frank have noted, we live in a very violent society, and LGBT people are often the victims of that violence, disproportionately so. The statistics show that we are disproportionately the victims of that violence. So I would beg to differ with that 

differentiation. 

But now, as in the history of religious liberty being invoked to 

justify exemptions from civil rights laws, those liberty rights must 

be weighed in relationship to other interests that the government 

may have enforcing laws that secure equality and liberty for—excuse me, for all of our citizens. We have existing principles in the 

Constitution and in Federal law that allow for that balancing to 

take place in a sensitive and responsible way that owes fidelity to 

the fundamental importance of religious liberty and the fundamental importance of other dearly held rights. 

But when we miss that balance, when we balance too heavily in 

the favor of religious liberty, we risk creating another constitutional violation, and that is a violation of the Establishment 

Clause. Why is this so? Supreme Court again has been very clear 

that the religious accommodations that cause a meaningful harm 

to other private citizens violate the Establishment Clause. Protecting the religious liberty of some cannot be accomplished or purchased by sacrificing the rights and intent of others. 

And indeed, Senator Lee said just that thing in introducing the 

virtues of this bill. And if you read it closely, and I have—it is my 

job, as it is yours, to read bills closely—I would say that we have 

a rather fundamental disagreement about what the language of the 

bill says. 

So this view about causing harms to third parties is something 

that the Supreme Court upheld 2 years ago by a majority of the 

Court in the Hobby Lobby case. This is not an old idea. It’s not an 

idea of the minority of the Supreme Court. It is one that the Court 

embraces. 

So I have prepared—I won’t go through it now—but a detailed 

analysis of all of the ways in which FADA would create substantial 

material harms on third parties. It’s contained in our longer testimony, and it’s contained in a shorter version, which I have and 

have submitted to the committee and would ask be entered in the 

record. 

Thank you so much, Mr. Chairman. 

Mr. MEADOWS. Without objection, it will be included. 

[The information follows:] 

Mr. MEADOWS. Thank you for your testimony. 

Dr. Franck, you are recognized for 5 minutes. 

STATEMENT OF MATTHEW J. FRANCK 

Mr. FRANCK. Thank you, Mr. Chairman. I’d like to take just a 

moment not only to thank the entire committee, Ranking Member 

Cummings, Chairman Chaffetz who’s absent, but also to say good 

morning to my Congresswoman, Mrs. Watson Coleman. I hail from 


KING-6430 with DISTILLER
64 

Lawrenceville, New Jersey, and I’m a constituent of yours, so very 

nice to see you. 

I’d also like to correct the record, an inadvertent misstatement 

of Chairman Chaffetz that the Witherspoon Institute where I work 

is at Princeton University. It’s in the town of Princeton but it’s 

independent of the university. 

The Supreme Court’s decision in Obergefell v. Hodges in June 

2015 redefined the meaning of marriage in American law. But 

many Americans remain opposed to the Court’s imposition of samesex marriage. The reasonable belief that the true meaning of marriage is its traditional meaning, the conjugal union of a man and 

a woman, can be expected to persist among millions of our fellow 

citizens. In part, this is because that view is also supported by 

their religious faith, though moral convictions on the subject can be 

strongly held for nonreligious reasons, too. 

And so Obergefell has cast a shadow over freedom of conscience 

in our country. People who sincerely hold on religious or moral 

grounds that marriage can only be between a man and a woman 

fear that they may be compelled to betray their consciences or suffer grave consequences. Some people have already experienced this, 

people such as Chief Kelvin Cochran. 

Hence, the First Amendment Defense Act preventing the Federal 

Government from discriminating against those who act on a sincerely held and reasonable view of marriage is vitally important 

legislation. 

The Justices who wrote in Obergefell anticipated the problems 

we now confront. Quite remarkably, they spoke about religious liberty in a case that seemed to have nothing to do with religious liberty. But the dissenters explicitly mentioned the ruling’s dire consequences for religious freedom and noted that in the legislative 

arena changes in the law of marriage could have included accommodations of conscience rights, as was done in some States that 

adopted it legislatively. 

After a judicial decree, however, it could be said it becomes still 

more important for legislatures to enact what Justice Thomas 

called measures ‘‘codifying protections for religious practice.’’ In 

order to avoid the opening of what Justice Alito called ‘‘bitter and 

lasting wounds’’ in American society. 

Justice Kennedy, speaking for the Court, spoke of people’s continued freedom to believe and to express a contrary view of marriage, 

but did he rule in or rule out a freedom to act on a view contrary 

to the ruling he announced? Was his description of religious freedom a floor or a ceiling? 

Justice Kennedy had spoken elsewhere in his opinion of the ‘‘decent and honorable religious or philosophical’’ principles that undergird what people believe about conjugal marriage. And he said 

the Court should not ‘‘disparage’’ such views. He did not call defenders of traditional marriage bigots whose views deserve no respect like people who once opposed interracial marriage. He treated 

them as reasonable people who should not be considered outsiders. 

Thus, the answer to our question is that Obergefell does not foreclose accommodations by the legislatures of the land, including this 

one, of full freedom of conscience. 


KING-6430 with DISTILLER
65 

The aftermath of another controversial case decided by the Supreme Court should be our model today. After Roe v. Wade, Congress passed the Church and Weldon Amendments, which honored 

the consciences of everyone who might otherwise be coerced into facilitating or cooperating with abortions. The proposed First Amendment Defense Act likewise is an appropriate and indeed urgent response to the threats now looming against the rights of conscience 

regarding marriage. It is in keeping with America’s best traditions 

of honoring freedom of religion and the right of dissent. 

The scale of the looming threat is great. People from multiple 

faith communities and persons of no religion at all have sincerely 

held conscientious views on marriage that they cannot betray without compromising who they are. FADA would ensure that the Federal Government does not impose a self-destructive choice on these 

people. 

A few words are in order about what FADA is not. It is not a 

license to discriminate against others, least of all because of who 

they are. The act says nothing about identity, dignity, status, or 

orientation. It protects people’s core convictions about marriage as 

an institution, not any attitudes they may have about LGBT persons as persons. 

FADA does not get the Federal Government into the business of 

judging people’s relationships. To the contrary, it gets the Federal 

Government out of taking sides on the contested issue of whose 

view of marriage or sexual relations is the preferred one or the one 

everyone must conform to. 

FADA is in no way a violation of the Constitution’s equal protection principle. Even if we were to grant that it allows one person 

to discriminate against another, which I do not grant, that is conduct entirely in the private sphere of civil society, not the state action the Constitution reaches. Indeed, by clearing space for opposing viewpoints on marriage to be equally protected in the law, 

FADA is a significant step for the equal protection of the laws, not 

against it. 

Finally, FADA is not, as Professor Franke and her colleagues 

have suggested, an unconstitutional establishment of religion. It 

goes no preferred standing to any religious viewpoint over another. 

It sweeps across all faith communities, and it honors nonreligious 

moral convictions as well. Indeed, in its amended form just recently 

introduced, it is now completely viewpoint neutral, satisfying all 

reasonable concerns about its open, fair-minded, equal treatment of 

all. 

As a vital after-Obergefell measure, the First Amendment Defense Act prevents no one from getting married or from celebrating 

a joyous wedding day. It demeans no one and protects people who 

otherwise might have to choose between their conscience and their 

livelihood, their ability to serve the public, their education, or their 

freedom. The passage of FADA would be a great step towards securing the space for people of goodwill and differing views to dissent and to disagree respectfully. It would preserve a free society 

where no one’s decent and honorable views are under threat of 

being stamped out. 

In a time when pessimism is on the rise regarding our ‘‘culture 

wars’’ FADA is a significant step in the direction of peace and civilVerDate Nov 24 2008 10:22 Mar 09, 2017 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 H:\23645.TXT APRIL

KING-6430 with DISTILLER
66 

ity. I urge the committee to move this bill toward its ultimate passage by the Congress and enactment into law, and I ask the committee to enter my longer prepared testimony into the record. 

Mr. MEADOWS. Without objection, so ordered. 

[Prepared statement of Mr. Franck follows:] 


KING-6430 with DISTILLER
67 


KING-6430 with DISTILLERInsert offset folio 41 here 23645.041

The First Amendment Defense Act: 

An Appropriate Congressional Response to Real Threats to Freedom of Conscience 

Matthew J. Franck1 

Testimony prepared for the Committee on Oversight and Government Reform 

U.S. House of Representatives 

12 July 2016 

I. Ohergefell v. Hodges and its Impact 

The Supreme Court's decision in Obergefell v. Hodges in June 2015 changed the meaning of the 

Constitution in order to impose on the entire country a change in the meaning of marriage. This 

should not be regarded as a controversial characterization of the ruling. Justice Anthony 

Kennedy's. opinion for the narrow majority in the case referred to the "new insight" into 

constitutional meaning that changing circumstances vouchsafe to the justices of the Court, who 

cannot "allow[] the past alone to rule the present,"2 and he characterized marriage as an 

"institution" that has "evolved over time,"3 the implication from these observations, taken 

together, being that the Supreme Court is in charge of the evolution that both the Constitution 

and marriage are to undergo in our country. 

It is not surprising that such a sweeping decision, rendered by such a closely divided Court, lacks 

legitimacy in the minds of many Americans who believe that neither the Constitution nor the 

institution of marriage can be redefined on the motion offive members of an unclected, 

unaccountable judiciary. Today, a little more than a year later, there are many Americans who 

would reverse or overturn Obergefell, either politically or judicially, if they could. Over the 

short, medium, and long term, the numbers of such Americans may shrink or grow, and no one 

should be confident of what the long-term trend lines will be. 

To compare our current situation with other watershed moments in American constitutional 

history, this is 1974 after Roe v. Wade, or 1858 after Dred Scott v. Sandford. Whichever opinion 

is in the ascendant at any given time, and whatever the relative strength of the contending views, 

deep divisions over Obergefell are bound to continue. And they are exacerbated by the nature of 

the decision itself, which took from the people the right of self-government over some of the 

most vital questions that the law can possibly address-the meaning of marriage, the nature of 

the family, and the rights of children to a mother and father. 

While those divisions continue, how will today's victors in the struggle over marriage proceed to 

treat their fellow citizens who dissent from the ruling in Obergefe/1, and who regard it as a 

grievous error in law and morality from which they wish to keep their distance? A decent 

1 Director, William E. and Carol G. Simon Center on Religion and the Constitution, the Witherspoon 

Institute, Princeton. N.J.; Professor Emeritus of Political Science, Radford University; Visiting Lecturer 

in Politics, Princeton University. My primary employment is with the Witherspoon Institute, a 50l(c)3 

research and educational institution that takes no positions on pending legislation; therefore I am 

testifying in my personal capacity as a constitutional scholar. 

'Obergefellv. Hodges, 576 U.S. (26 June 2015), slip op. at II (Kennedy, J., for the Court). 3 Ibid., ai 6. -
68 


KING-6430 with DISTILLERInsert offset folio 42 here 23645.042

2 

respect for the consciences of other Americans should prompt them to model their treatment on 

the Church Amendments, adopted after Roe in the 1970s, which protect persons and institutions 

from any discrimination or adverse consequences of their refusal to perform or be complicit in 

any sterilization or abortion, on grounds of"religious beliefs or moral convictions" that prompt 

such refusal. 4 

The Church Amendments, and similar provisions of federal law, 5 evince a recognition on the part 

of Congress that some of our fellow citizens have legitimate, even though not universally shared, 

moral convictions about the sanctity of human life that it would be wrong to coerce them to 

betray. The freedom to follow tbe promptings of conscience in this matter is affirmed whether 

one's conscience is informed by religious faith or not-hence the typical statutory language of 

"religious beliefs or moral convictions." The proposed First Amendment Defense Act wisely 

echoes this language and partakes of the same breadth of coverage for those whose consciences 

are affected by changes in the legal landscape, but now in the context of those with a "sincerely 

held" conscientious belief, whether religious or not, that marriage is "the union of one man and 

one woman." 

The impulse that the Church Amendments reject, namely that all should be compelled to 

conform their conduct to a notion that abortion is part of the public good, should be rejected in 

this new context as well. A policy of compulsory acceptance of the redefinition of marriage 

imposed by Obergefell, under the threat of the federal government's coercive authority, would be 

both a sign of political insecurity on the part of the victors in that case, and a reality of gratuitous 

intolerance, spurring needless conflict and inflicting widespread harm with no counterbalancing 

benefit other than the satisfaction of having oppressed others who think differently than oneself. 

The justices of the Supreme Court who wrote in the Obergefell decision foresaw the issues we 

arc discussing today. In some ways this is striking, because the case had nothing in itself to do 

with religious freedom or the relation between church and state. But the historical intertwining 

of religious belief and legal principles respecting marriage placed the future of religious freedom 

prominently in the background of the ruling at hand. Chief Justice Roberts is worth quoting at 

some length: 

Today's decision ... creates serious questions about religious liberty. Many good and 

decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise 

religion is-unlike the right imagined by the majority--actually spelled out in the 

Constitution. Arndt. 1. 

Respect for sincere religious conviction has led voters and legislators in every State that 

has adopted same-sex marriage democratically to include accommodations for religious 

practice. The majority's decision imposing same-sex marriage cannot, of course, create 

any such accommodations. The majority graciously suggests that religious believers may 

4 "Church Amendments, 42 U.S.C. § 300a-7." available at 

http:!iwww.hhs.govisit<:~/_cl\:f~llll'file~<;/_oc_r/~ivjJiig!Jts'ltndcrstanding/ConscicnccProtcc_t/.'l)J!.~J00~7.pdC 

5 See "Current Federal Laws Protecting Conscience Rights;· Secretariat of Pro-Life Activities. U.S. 

Conference of Catholic Bishops, available at http: /~v:-yvv,_usccb.org:issucs-and-<~<;tionlx<iigi.Ql'Sc 

I i bcrty/ consc icnc_c-protccti on/up load' F cdcral :S: onsc i cncc-L av'2cm:lf 
69 


KING-6430 with DISTILLERInsert offset folio 43 here 23645.043

3 

continue to "advocate" and "teach" their views of marriage. The First Amendment 

guarantees, however, the freedom to "exercise" religion. Ominously, that is not a word 

the majority uses. 

Hard questions arise when people of faith exercise religion in ways that may be seen to 

conflict with the new right to same-sex marriage-when, for example, a religious college 

provides married student housing only to opposite-sex married couples, or a religious 

adoption agency declines to place children with same-sex married couples. Indeed, the 

Solicitor General candidly acknowledged that the tax exemptions of some religious 

institutions would be in question if they opposed same-sex marriage. There is little doubt 

that these and similar questions will soon be before this Court. Unfortunately, people of 

faith can take no comfort in the treatment they receive from the majority today.6 

Similarly, Justice Thomas wrote: "Aside from undermining the political processes that protect 

our libe;,7, the majority's decision threatens the religious liberty our Nation has long sought to 

protect." He observed that the First Amendment's protections were "far from the last word on 

religious liberty in this country, as the Federal Government and the States have reaffirmed their 

commitment to religious liberty by codifying protections for religious practice" such as the 

Religious Freedom Restoration Act.8 Justice Thomas continued: 

Although our Constitution provides some protection against such governmental 

restrictions on religious practices, the People have long elected to afford broader 

protections than this Court's constitutional precedents mandate. Had the majority 

allowed the definition of marriage to be left to the political process-as the Constitution 

requires-the People could have considered the religious liberty implications of deviating 

from the traditional definition as part of their deliberative process. Instead, the majority's 

decision short-circuits that process, with potentially ruinous consequences for religious 

liberty.9 

It is exactly such "ruinous consequences"-or some of them, at least-that the First Amendment 

Defense Act, in my opinion, is well designed to prevent. 

Justice Alito also observed the potentially grave consequences for religious liberty that could 

unfold from the Ohergefell decision, which he predicted 

will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the 

course of its opinion, the majority compares traditional marriage laws to laws that denied 

equal treatment for African-Americans and women. The implications of this analogy will 

be exploited by those who are determined to stamp out every vestige of dissent. 

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the 

end of its opinion, to reassure those who oppose same-sex marriage that their rights of 

6 Obergefel/, slip op. at 27-28 (Roberts, C.J., dissenting) (citations omitted). 7 Ibid., slip op. at 14 (Thomas, J., dissenting). 8 lbid., at 15. 9 Ibid., at 16. 
70 


KING-6430 with DISTILLERInsert offset folio 44 here 23645.044

4 

conscience will be protected. We will soon see whether this proves to be true. I assume 

that those who cling to old beliefs will be able to whisper their thoughts in the recesses of 

their homes, but if they repeat those views in public, they will risk being labeled as bigots 

and treated as such by governments, employers, and schools. 

The system of federalism established by our Constitution provides a way for people with 

different beliefs to live together in a single nation. If the issue of same-sex marriage had 

been left to the people of the States, it is likely that some States would recognize samesex marriage and others would not. It is also possible that some States would tie 

recognition to protection for conscience rights. The majority today makes that 

impossible. By imposing its own views on the entire country, the majority facilitates the 

marginalization of the many Americans who have traditional ideas. Recalling the harsh 

treatment of gays and lesbians in the past, some may think that turnabout is fair flay. But 

if that sentiment prevails, the Nation will experience bitter and lasting wounds. 1 

The First Amendment Defense Act gives Congress the opportunity, with respect to those 

conscience rights within its reach to protect, to mitigate the harm caused by the Supreme Court's 

decision to short-circuit the political process and decree a nationwide right of same-sex marriage. 

Justice Alito rightly observed that in the process of legislation in each state, it was possible to 

"tic" conscience rights and same-sex marriage together. Indeed, in the small number of 

jurisdictions where same-sex marriage was established by legislation rather than judicial decree, 

this is generally what did happen. 11 

Justice Alito seemed to say that such accommodation had now been rendered "impossible" by 

the decision in Obergefe/1. But he said this in a particular context-namely, his critique of the 

majority's arrogation of power to constitutionalize the question of same-sex marriage, and to 

decree a result by adjudication rather than letting legislative action take its course. Legislation 

typically involves more give and take than adjudication, and in the legislative arena it was 

possible to "tic" marriage legislation and conscience protection closely together as a single 

package subject to a vote. This isn't how courts operate, and so the justices had given a 

complete victory to one party, without necessity of compromise or accommodation. But Justice 

Alito's comment by no means ruled out the possibility, or the legitimacy, of post hoc efforts to 

accommodate conscience rights by legislation. Likewise, whereas Chief Justice Roberts 

remarked (as already quoted above) that the Court's ruling "cannot, of course, create any such 

accommodations," he by no means averred that the Court's decision rules them out as disallowed 

by the Constitution. The First Amendment Defense Act represents just such an effort at 

accommodation, responding to the newly created constitutional status of same-sex marriage by 

creating a statutory safe haven for the exercise of conscientious dissent from this redefinition of 

marriage's meaning. 

10 Ibid., slip op. at 6-7 (Ali to, J., dissenting) (citations omitted). 11 See Robin Fretwell Wilson, "The Politics of Accommodation: The American Experience with SameSex Marriage and Religious Freedom," in Religious Freedom and Gay Rights: Emerging Conflicts in the 

United States and Europe, ed. Timothy Samuel Shah, Thomas F. Farr, and Jack Friedman (New York: 

Oxford University Press, 2016), 132-80, esp. 145-50. 
71 


KING-6430 with DISTILLERInsert offset folio 45 here 23645.045

5 

In the quotations above from Obergefell, we have seen the dissenting justices remark on the 

majority's passing mention of religious liberty. And it is true that in a crucial passage the 

majority seemed to express a cramped view of our first freedom. Justice Kennedy wrote: 

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, 

may continue to advocate with utmost, sincere conviction that, by divine precepts, samesex marriage should not be condoned. The First Amendment ensures that religious 

organizations and persons are given proper protection as they seek to teach the principles 

that are so fulfilling and so central to their lives and faiths, and to their own deep 

aspirations to continue the family structure they have long revered. The same is true of 

those who oppose same-sex marriage for other reasons. In turn, those who believe 

allowing same-sex marriage is proper or indeed essential, whether as a matter of religious 

conviction or secular belief, may engage those who disagree with their view in an open 

and searching debate. The Constitution, however, does not permit the State to bar samesex couples from marriage on the same terms as accorded to couples of the opposite 

sex. 12 

This is the passage of the majority's opinion that elicited the warnings of three of the dissenters. 

Here Justice Kennedy spoke of the freedom of religion only as the freedom to believe, and to 

express a belief in, an understanding of marriage as the conjugal union of a man and a woman. 

That view, on the other hand, was entirely disabled from being embodied in the law as a 

definition of marriage inasmuch as it kept same-sex couples from enjoying the legal status of 

marriage "on the same terms." 

But what of the space in between? If religious believers, and others sharing their view on nonreligious grounds, wished to do more than merely think of marriage as a conjugal union of man 

and woman, but were now told they could not legislate that understanding, could they 

nonetheless act on that understanding in their interactions with fellow citizens in educational, 

charitable, social, and commercial settings? Could they do so, especially, because their beliefs 

about marriage are integrally bound up with their identity and integrity as believers or as morally 

conscientious persons? 

The Obergefel/ dissenters were clearly worried that such a freedom of action was endangered in 

the new order the decision called forth. Chief Justice Roberts, as quoted above, gave several 

examples of concrete threats to such freedom that could be easily foreseen. And Justice Thomas, 

immediately before his reminder (also quoted above) about our history of providing more legal 

protection for religious freedom than the judicially interpreted Constitution may be said to 

require, put his finger on the same problem: 

Religious liberty is about more than just the protection for "religious organizations and 

persons ... as they seck to teach the principles that are so fulfilling and so central to their 

lives and faiths." Religious liberty is aboutfi·eedom ofaction in matters of religion 

generally, and the scope of that liberty is directly correlated to the civil restraints placed 

upon religious practice. 13 

12 Obergeje/1, slip op at 27 (Kennedy, J., for the Court). 13 Ibid, slip op. at 15-16 (Thomas, J., dissenting) (emphasis added; citation omitted). 
72 


KING-6430 with DISTILLERInsert offset folio 46 here 23645.046

6 

Is the Obergefell majority's seemingly more restrictive reading of religious freedom in the 

passage already quoted-mentioning only belief and expression, and omitting the "exercise" of 

religion that encompasses action in the world-the whole story? Did Justice Kennedy foreclose 

the possibility that religious freedom to dissent from the redefinition of marriage could go 

beyond speech to involve those actions that conscience must constrain in a person of strongly 

held religious or moral views? 

I do not think he did foreclose that possibility. Consider the following, less frequently noticed, 

passage from his majority opinion: 

Many who deem same-sex marriage to be wrong reach that conclusion based on decent 

and honorable religious or philosophical premises, and neither they nor their beliefs arc 

disparaged here. But when that sincere, personal opposition becomes enacted law and 

public policy, the necessary consequence is to put the imprimatur of the State itself on an 

exclusion that soon demeans or stigmatizes those whose own liberty is then denied. 

Under the Constitution, same-sex couples seek in marriage the same legal treatment as 

opposite-sex couples, and it would disparage their choices and diminish their personhood 

to deny them this right14 

Although there are other passages in Justice Kennedy's opinion that drew the critical comment 

from Chief Justice Roberts that he had "sull[icd] those on the other side of the debate," 15 in this 

particular passage there is an underappreciated symmetry in Kennedy's treatment of the 

contending points of view. The views of the supporters of conjugal marriage are not only 

"sincere" and "personal," they stem from both "religious" and "philosophical premises" that are 

"decent and honorable"-i.e., reasonable and worthy of respect. Kennedy claims that 

embodying those views in the law governing who may marry whom would "disparage [the) 

choices and diminish [the] personhood" of same-sex couples wishing to marry. But by the same 

token he disavows any reading of Obergefell in which the conjugal view of marriage is 

"disparaged here." 

The five-justice majority for whom Justice Kennedy speaks has chosen a victor in this strugglewrongly, as I and many others would argue-but here he appears to enunciate an evenhanded 

"no disparagement" principle. On the one hand, he argues, it would be wrongful disparagement 

of the choices and personhood of same-sex couples to deny them the civil status of marriage. On 

the other hand, he allows that it would also be wrongful disparagement of the "decent and 

honorable" views, central to their own personhood as conscientious moral actors, that arc 

advanced by those who hold the conjugal view of marriage for religious or philosophical 

reasons, for the state to suppress those views. The possibility that Justice Kennedy neither 

considers nor rejects, but which is raised by Chief Justice Roberts and the other dissenters, is the 

potential for such suppression-amounting exactly to the "disparage[mcnt]" he disavows-when 

the government compels conduct that contradicts the dictates of conscience as it responds to 

these "decent and honorable religious or philosophical premises" about the meaning of marriage. 

14 Ibid., slip op. at 19 (Kennedy, J., for the Court). 11 Ibid., slip op. at 28 (Roberts, C.J., dissenting). 
73 


KING-6430 with DISTILLERInsert offset folio 47 here 23645.047

7 

Justice Kennedy's recognition of these "decent and honorable" views opposed to his own is 

commendable. This is not the way indefensible bigotry is discussed, even in the detached 

language of judicial opinions. 16 And in light of this passage, we can justifiably take his opinion's 

narrower expression of the scope of religious freedom, several pages later, as expressing a 

minimum of such freedom and not a maximum-a floor and not a ceiling. Thus ample room is 

implicitly conceded for congressional action such as the First Amendment Defense Act, to 

protect exactly that freedom of conduct on the meaning of marriage that is the first target of 

those who would seek to suppress as well the viewpoint informing that conduct. 

II. The Scale of the Problem 

Virtually everyone who has examined the implications of same-sex marriage for religious 

freedom, and freedom of conscience more generally, has been compelled to recognize that the 

conflicts ahead of us-some of them playing out already-are very real. In a recent book to 

which I contributed, scholars from the United States, United Kingdom, and continental Europe 

examined the issues from a variety of perspectives. Some were for same-sex marriage, some 

against it. Some of those in favor of same-sex marriage were mindful of the legitimate claims of 

dissenters; others were more dismissive or unsympathetic toward those claims. But almost 

without exception the authors were aware of the reality of the conflict, and of the nature of the 

threat to freedom as the law is brought to bear on the conduct that our consciences will pern1it us 

to undertake. 17 

As Justice Thomas remarked in his Obergefell dissent, "In our society, marriage is not simply a 

governmental institution; it is a religious institution as well." 18 By this he did not mean that the 

laws of marriage previously embodied a purely religious perspective on the institution, much less 

that they constituted an "establishment of religion." In context, he plainly meant merely the 

commonplace observation that marriage and family are central features both of our political life, 

therefore governed by public policy, and of many, perhaps the great majority of, Americans' 

religious lives, answering morally to teachings and doctrines of faith. Hence, he continued: 

Today's decision might change the former, but it cannot change the latter. It appears all 

but inevitable that the two will come into conflict, particularly as individuals and 

churches are confronted with demands to participate in and endorse civil marriages 

between same-sex couples. 19 

If anything, the cont1icts over religious liberty following in the wake of the Court's decision to 

redefine marriage threaten to be more numerous, and more acute, than those that followed the 

abortion decision in Roe v. Wade. Why is that? As I explained in the book to which I referred 

above: 

16 Compare, for instance, the accurate characterization of anti-miscegenation laws as nothing more than 

"measures designed to maintain White Supremacy," in Loving v. Virginia. 388 U.S. I (1967), at II. 17 See Religious Freedom and Gay Rights. I rely in part for what follows on my Introduction to this 

volume, "Religious Freedom, Same-Sex Marriage, and the Dignity of the Human Person." 

"Obergeje/1. slip op. at 15 (Thomas, J., dissenting). 19 lbid. 
74 


KING-6430 with DISTILLERInsert offset folio 48 here 23645.048

8 

[T]he adoption of same-sex marriage in the laws of the United States and the other 

western democracies is different in kind from previous developments that had relaxed or 

abandoned the legal enforcement of Christian (but not uniquely Christian) norms of 

sexual morality. When most of the Christian churches other than the Roman Catholic 

abandoned the historic condemnation of artificial contraception beginning some 80 years 

ago, and the laws gradually followed suit in dropping proscriptions of it, there was no 

inroad on the freedom of those who clung to the ancient teaching to continue following 

their consciences, as individuals or in their institutions. (Lately this has changed in the 

United States, with the Health and Human Services mandate for employer provision of 

contraception under the Affordable Care Act of2010.) 

Likewise, when adultery was decriminalized, or when sodomy laws fell into desuetude, 

no one who believed in the sinfulness or immorality of such acts was harmed in his own 

freedom to live conscientiously by such moral or religious norms. The American 

people's right of self-government-an underappreciated part of their liberty of acting 

together in community-was arguably harmed by the Supreme Court's invalidation of all 

sodomy laws in Lawrence v. Texas (2003), but religious freedom as such suffered no 

blow. 

Even Roe v. Wade (1973), viewed by all who hold life sacred from conception to natural 

death as a legal horror, a grievous injustice against basic human rights, was not by the 

force of its own logic a threat to the religious freedom of the ruling's opponents. To be 

sure, there were medical institutions and others in need of a shield against any coerced 

complicity in abortions they conscientiously opposed, but in the main (while there were 

and still are flashpoints here and there) such a shield was ungrudgingly provided by 

legislators. 

The redefinition of marriage, extending the civil status of the institution by law to samesex couples, propels us into very different territory. As Justice Thomas noted, the claim 

that was victorious in Obergefell was not really, in the logic of the law, a "liberty" claim 

at all. It was a demand for government recognition and inclusion in an institution whose 

definition has always included some and excluded others. And marriage is an institution 

both civil and religious, as Justice Thomas also noted. 

More than that, marriage's meaning permeates civil society generally-the economy, 

education, the structures and activities of intermediate associations generally, all of which 

are subject in varying degrees to the law's understanding of marriage and family 

relations. From schools to hospitals to social service agencies to charitable institutions to 

workplaces to market transactions of myriad kinds, any modern society presents 

countless micro-environments where conscience, moral choice, and claims of dignity 

regarding the meaning of marriage can potentially clash in ways that erupt into litigation, 

prosecution, and/or public administration of where the right should prevail.20 

The fact that marriage is so interwoven with civil society across so many dimensions, and that it 

is central and prominent in any understanding of the common good, accounts in large part for its 

2

° Franck, '·Religious Freedom, Same-Sex Marriage, and the Dignity of the Human Person," 15-16. 
75 


KING-6430 with DISTILLERInsert offset folio 49 here 23645.049

9 

centrality in religious traditions as well. All the major world religions in their most traditional or 

orthodox forms hold that marriage is a union of man and woman, because of the sexes' 

complementarity and because of the importance of the generation and upbringing of children. At 

the Humanum Colloquium, a major international, inter-religious meeting held at the Vatican in 

November 2014, prominent representatives of the Catholic, Evangelical, Anglican, Pentecostal, 

Eastern Orthodox, Anabaptist, Mormon, Jewish, Muslim, Jain, Buddhist, and Hindu faith 

communities attested to their shared understanding of the importance of sexual complementarity 

in marriage. 21 

In many, perhaps most of these faith communities, certainly in those in the historic mainstream 

of Judaism and Christianity, believers hew to doctrines on marriage and sexual relations that are 

considered central to the faith's moral teachings, coming to them with all the force and 

obligation of divine commandments. Marriage is imbued with a sacred character, even a 

sacramental one. 

This is a commonplace observation that I will not belabor further. What bears pointing out, 

however, is the nature of the consensus across all of these religious traditions. What can account 

for the agreement of the Jewish and the Jain traditions, the Mormon and the Hindu, the 

Anabaptist and the Buddhist? These traditions, while differing on so much else, arc in 

agreement on the nature of marriage as a union of complementary sexes because that 

understanding is fully defensible as a rational matter without recourse to revelation or divine 

authority. A compelling case for "what was" (in the late Justice Scalia's words), "until 15 years 

ago, the unanimous judgment of all generations and all societies"22 can be made entirely without 

employing theological categories of any kind.Z3 

The rational, non-religious case for conjugal marriage is, as it were, self-sufficient. This is why, 

as with the belief that unborn human life is deserving of protection, it is appropriate for the law 

to protect a conscientiously held "moral conviction" of no particularly religious character, as 

well as "religious belief' on the subject. And this is why Justice Kennedy, in Obergefell, was 

able to refer in the same breath to "decent and honorable religious or philosophical premises" for 

the pan-civilizational, historically normative understanding of marriage. Here religion and 

philosophy do not inhabit different domains so much as they partake of the same practical reason 

about human relationships and the common good. 

To take the tradition that I know best, the historic teachings of Christianity have been a "package 

deal" of the following interwoven elements: first, a teaching of human freedom, including 

religious freedom, springing from the imago Dei, the scriptural teaching that we are all made in 

21 See the contributions to the Humanum Colloqninm collected in Not Just Good, But Beautiful: The 

Complementary Relationship Between Man and Woman, ed. Steven Lopes and Helen Alvan\ (Walden, 

NY: Plough Publishing, 2015). 22 Obergefel/, slip op. at 7 (Scalia, J., dissenting). 23 See, e.g., Sherif Girgis, Ryan T. Anderson, and Robert P. George, What Is Marriage? Man and 

Woman: A Defense (New York: Encounter, 2012); Patrick Lee and Robert P. George, Conjugal Union: 

What Marriage Is and Why It Matters (New York: Cambridge University Press, 2014). 
76 


KING-6430 with DISTILLERInsert offset folio 50 here 23645.050

10 

the image and likeness of God, as rational creatures with free will;24 second, the understanding of 

marriage as a union of man and woman and the exclusive scene of morally permissible sexual 

relations, an ethic advanced as basic to the good of children, women, and men alike;25 and third, 

an ethic of service to others through works of charity and mercy, as well as in the marketplace 

and social relations generally. 

From the point of view of the historic mainstream of Christianity, these things arc inextricable 

parts of a whole. The religious faith that impels people to serve their neighbors, in commerce, 

social action, and good works, is the same faith that agrees with reason in concluding that our 

consciences must be free and uncoerced, and is also the same faith that reinforces and, for many, 

renders sacred the altogether reasonable moral conviction that marriage is the conjugal union of a 

man and a woman. 

Five justices of the Supreme Court have now said the law of the land is otherwise on the subject 

of marriage. But if it is treated as compulsory for those who resist this change, and who hold to 

the older view, to conform their actions in the marketplace and civil society to the new 

dispensation on marriage, in flat contradiction of their sincerely held religious and moral 

convictions on the subject, then the "new normal" will amount to an all-out assault on the whole 

package of the beliefs that constitute their identities. It will be an assault on these believers' 

ability to participate on an equal footing with others in the marketplace and civil society, and 

above all an assault on their freedom of conscience. 

On the side of coercing rather than accommodating conscientious dissenters from the redefinition 

of marriage, the claim is typically made that a "dignitarian harm" to gays and lesbians is 

remedied thereby?6 The cause of the harm to one's dignity is evidently the felt sense that others 

evince an "animus" toward one's identity. But as Robin Wilson, a supporter of same-sex 

marriage, has written: 

Refusals to assist with a same-sex marriage, however are different [from the 

discrimination targeted by earlier civil rights statutes]-they can stem from something 

other than anti-gay animus. For many people, marriage is a religious institution and 

wedding ceremonies arc a religious sacrament. ... Without explicit protection in the nondiscrimination or same-sex marriage law, many will be faced with a cruel choice: your 

conscience or your livclihood.27 

24 For an exploration of the Christian development of the idea of religious freedom, see Matthew J. 

Franck, "Two Tales of Freedom: Getting the Origins of Religious Liberty Right Matters," Touchstone: A 

Journal of Mere Christianity, July/August 2016, 19-26. See also Ronald Osborn, "The Great Subversion: 

The Scandalous Origins of Human Rights," Hedgehog Review 17:2 (Summer 2015): 90-100; Larry 

Siedentop, Inventing the Individual: The Origins of Western Liberalism (Cambridge: Harvard U.P., 

2014). 

25 On this point sec Kyle Harper, From Shame to Sin: The Christian Tran~formation of Sexual Morality in 

Late Antiquity (Cambridge: Harvard U.P., 2013). 26 See Douglas NeJaime and Reva B. Siegel, "Conscience Wars: Complicity-Based Conscience Claims in 

Religion and Politics," Yale Law.Journal124 (2015): 2516,2574-78. But see Sherif Girgis, "Nervous 

Victors, Illiberal Measures: A Response to Douglas NeJaimc and Rcva Siegel," Yale Law Journal Forum 

125 (2016): 399, available at http://www.yalclawjourn_al.org/pdf/Girgi1_j>[)f_y7w4z24v.pdf. 27 Wilson, "The Politics of Accommodation," 164. 
77 


KING-6430 with DISTILLERInsert offset folio 51 here 23645.051

II 

More pointedly, religious liberty scholar Steven Smith has written: 

Although there is no uncontroversial metric for assessing relative burdens ... it seems 

clear that the risks faced by the opposing sides are different, and asymmetrical. ... The 

major risk faced by religious conservatives ... is that of being put to the choice of 

violating their convictions or commitments-of being unfaithful to their God, as they 

perceive the matter-or instead of being increasingly relegated to the margins of society . 

. . . [P]ossibly with some minor qualifications, the secular citizen [who favors same-sex 

marriage] is permitted to act on all his beliefs and convictions, but the religious citizen 

[who opposes it] is commanded to bracket her most essential beliefs and convictions.28 

The way forward that would honor all Americans' freedom to live according to their beliefs and 

convictions, so far as it is in Congress's power to honor it, is the First Amendment Defense Act. 

The Act is fully in keeping with Justice Kennedy's "no disparagement" principle, and it will go 

far in assuaging the concerns raised by the dissenting justices in Obergefell. 

III. Answering Objections 

F ADA has been widely misunderstood and mischaractcrized in various quarters. Here I would 

like to summarize and respond to some of the most prominent criticisms lodged against it. 

Objection: That the Act would grant special protection to those who "discriminate" against 

others on the basis of their status or identity as LGBT persons, sending a message that federal 

law "disapproves" of them. 

Response: There is no ground, in the text or evident purposes ofF ADA, for concluding that the 

act offers any protection for, or expresses agreement with, discriminatory conduct toward 

persons as persons. The law protects persons and institutions from compulsory acceptance of 

the new meaning of marriage, if they have sincere religious beliefs or moral convictions about 

that. 

Such a misreading of the statute stems from the same ideological impulse that leads some people 

to see "anti-gay bigotry" in every case of wedding vendors who decline on religious grounds to 

offer their services for a same-sex marriage ceremony. But as Ryan T. Anderson has noted, none 

of the cases documented so far has involved "discrimination against gays and lesbians as such. 

None of these citizens has ever said, 'I don't serve gays.' No, each of these cases involves the 

conscientious decision not to facilitate a same-sex wedding."29 

Objectio11: That F ADA somehow involves the federal government in making judgments about or 

intruding into people's sexual morality or relationships. 

28 Steven D. Smith, "Die and Let Live? The Asymmetry of Accommodation," in Gay Rights and 

Religious Freedom, 190-92. 29 Ryan T. Anderson, Truth Overruled: The Future of Marriage and Religious Freedom (Washington, 

DC: Regnery, 2015), 92. 
78 


KING-6430 with DISTILLERInsert offset folio 52 here 23645.052

12 

R"§ponse: To the contrary, FADA would 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. F ADA would leave all those affected by it 

perfectly free to live as they please, and would deprive those who wish to impose their view on 

others of any leverage for that imposition that they can derive from the federal government's 

power. F ADA gets the government out of the discrimination business, and is the most 

significant pro-liberty legislation to be considered by Congress in recent memory. 

Objectign: That F ADA itself violates the equal protection principle of the Constitution and runs 

afoul of precedents like Romer v. Evans (1996).30 

Response: Romer was a case about the state of Colorado's placing a disability on a particular 

interest group's chances of achieving its aims in the political process. FADA, by contrast, is 

about protecting a conscientious freedom of action in the private sphere of civil society with 

respect to strongly held views on marriage. 

Some might say that the Act would create a kind of"state-sanctioned discrimination." But that 

way of talking obscures the fact that the operative field ofF ADA is entirely the field of conduct 

in the private sector that is motivated by religious or moral convictions about marriage. Even 

accepting the dubious proposition (already noted above) that FADA condones or protects 

"discrimination" against LGBT persons in the private sector, it would not follow that the Act 

itself denies equal protection of the law to anyone. Instead, F ADA should be understood as 

protecting freedom of conscience in the same way that the Church and Weldon Amendments, 

and Title VII of the Civil Rights Act do. 

F ADA would protect the traditional freedom of action in the public square of thousands of 

religious nonprofits, educational, and charitable institutions, and the millions of people who 

benefit from their good works in civil society, from compulsion to betray their religious and 

moral convictions in order to keep serving their fellow citizens. Most notably, it would lift the 

threat that Justice A lito identified in oral argument in the Obergefell case, and that Solicitor 

General Verrilli admitted could be a real one, of depriving such institutions of their tax 

exemptions for being true to their beliefs. 

Preserving the place such institutions have in our society is a blow for the equal protection of the 

laws, not against it. 

Objection: That F ADA is somehow an unconstitutional establishment of religion contrary to the 

First Amendment. 

R_e§QQ_(}S~: This is the most absurd criticism I have heard about conscience protection legislation. 

FADA goes above and beyond current interpretations of the free exercise of religion clause of 

the First Amendment, as all the justices of the Supreme Court have recognized is a legitimate 

thing for Congress to do. But giving additional legal protection to freedom of religion is in no 

way an "establishment" of religion. 

30 517 U.S. 620. 
79 


KING-6430 with DISTILLERInsert offset folio 53 here 23645.053

13 

The argument seems to be that laws like F ADA give an "official preference" to a certain set of 

religious views, informing those who do not share them that they're second-class citizens. But 

this inverts the reality. Since Obergefell, the danger has become acute that it is dissenters from 

the redefinition of marriage who are being told that their views are unwelcome, unworthy of 

good Americans. If a law that says people are free to act on their own views of marriage is an 

"establishment of religion," then obviously an even stronger case can be made that the legal 

order defining marriage is an establishment of religion-whatever the definition is. In that case 

we had an "establishment of religion" on marriage the day before Obergefell-and the day after. 

And no court has ever seriously entertained such an absurd view. 

In addition, FADA speaks of"rcligious belief or moral conviction" about marriage. As I noted 

above, strongly held moral convictions about marriage can be held on entirely non-religious 

grounds. This was recognized by Justice Kennedy, speaking for the Court in Obergefell. A view 

of marriage held across all major faith communities, and among people of no religion at all, 

which stands against the present legal definition of marriage, and only claims the freedom to 

believe and to act on that belief in private dealings with fellow citizens, is just about the furthest 

thing I can imagine from an "establishment of religion." 

Conclusion 

The First Amendment Defense Act is an altogether appropriate, indeed urgent, congressional 

response to the threats to religious liberty, and to conscience more generally, that have arisen in 

the aftermath of Obergefell v. Hodges. As more than one dissenting justice pointed out, 

legislative enactment of same-sex marriage could have been (and as we've seen, sometimes was) 

accompanied by simultaneous and linked protections of those religious and moral convictions 

about marriage that dissent from the redefinition of this key social institution. The Supreme 

Court majority decided the marriage question without any such protections accompanying its 

ruling. Nor could it really have done so. 

But the possibility, and the justification, of doing so remain open for congressional action. Many 

millions of Americans continue to believe that marriage is the conjugal union of a man and a 

woman, and some of them will find themselves (as some already have) under pressure in their 

businesses and workplaces, their schools and colleges, their charities and other vital institutions 

of civil society, to conform their actions to the redefinition of marriage, contrary to the 

constraints of their consciences. Such a controversial decision as Obergefell threatens to open 

what Justice Alito called "bitter and lasting wounds."31 Even the Court's opinion by Justice 

Kennedy remarked on the injustice of"disparaging" the "decent and honorable" views of 

conjugal marriage supporters, and thereby rejected the view that such people should be treated 

like bigots or racists. An enactment like F ADA can help immeasurably to heal some of those 

wounds, and assure that people on both sides of this issue are treated justly. 

F ADA is not about "licensing discrimination" against any persons because of who they arc, nor 

about inviting "animus" or generating "dignitarian harms." It is narrowly tailored to protect a 

"religious belief or moral conviction" about the nature of marriage, and that is all. Given the 

31 Obergefe/1, slip op. at 7 (Ali to, J., dissenting). 
80 


KING-6430 with DISTILLERInsert offset folio 54 here 23645.054

14 

central place that marriage occupies in both religious and philosophical systems of morality, 

across virtually every faith community existing today, it would be unjust for any government to 

coerce this new, post-Obergefell class of"marriage dissenters" to conform their conduct to this 

redefinition, just as it is unjust to coerce pro-lifers to facilitate abortions. 

Thanks to FADA, no one will be prevented from getting married. No one will be prevented from 

obtaining the goods and services that go into a successful wedding day. No one will be 

discriminated against by the state, and no one's personhood will be demeaned or diminished. No 

one's dignity will be affronted by a government policy, and no one will be compelled to behave 

as though he approves of moral undertakings of which he actually, conscientiously disapproves. 

As Justice Kennedy said for the majority in Obergefel/, there are "decent and honorable religious 

or philosophical premises" at work in the defense of the traditional, conjugal view of marriage, 

and our legal order should not gratuitously "disparage" that view. It is not "animus" or 

disrespect for others that drives the defenders of the now-displaced understanding of marriage, as 

even the fair-minded advocates of same-sex marriage recognize. It is the call of conscience that 

drives them. 

Finally, there is no "establishment of religion" in statutes like FADA. Only a cramped view of 

religious freedom, and an overtly or covertly hostile perspective on the place of religious faith in 

American public life, can account for such an unwarranted conclusion. The First Amendment 

Defense Act is urgent, freedom-protecting legislation. It does not establish religion in any way, 

shape, or form. It establishes only the space to dissent, free from the coercive effort to stamp it 

out that is inimical to a free society. 
81 

Mr. MEADOWS. I want to thank all of the witnesses for your testimony, very illuminating testimony. 

And the chair recognizes the gentleman from Michigan, Mr. 

Walberg, for 5 minutes. 

Mr. WALBERG. Thank you, Mr. Chairman, and thanks for the 

panel for being here. 

And, you know, I would also give credit and thanks to our Chairman Chaffetz for holding this hearing. I think it is important. We 

cannot be put off by the fact that there is disagreement and diversity of opinion. In our country today we are very much divided. 

That has to change. And we have to understand that there are 

things that we are doing and have done that will promote this disunity as opposed to recognizing the unity that comes in a free people doing free things, and sometimes accepting positions that we 

don’t agree with, but we understand the freedom that this great 

country, a country established very clearly under Judeo-Christian 

principles, a Christian nation that afforded more freedom and opportunity for anyone, anyone than any other country in the world. 

Also, I thank the chairman for holding the hearing because this 

is an issue we ought to address. I have had the privilege of performing scores of weddings and turning down some weddings of 

heterosexual couples who didn’t understand the importance of marriage and the sanctity of marriage. I have had the privilege of performing the wedding ceremony of a Rwandan and a Caucasian, an 

American, my daughter and son-in-law, and see that marriage 

blessed with now an African-American granddaughter and celebrating what I have always known to be one race, the human race, 

as God created it. 

Marriage is an important thing. We ought to discuss it, so I appreciate the panel being here. 

Mr. Cochran, congratulations on your distinguished record of 

service, which you include what you have indicated to us plus the 

fact of being the U.S. fire administrator, as well as the first African-American fire chief for Atlanta and your work in Shreveport as 

well. 

You were initially suspended without pay for 30 days by the city 

of Atlanta. Had the city conducted a review of any facts at the time 

it suspended you? 

Mr. COCHRAN. No, they did not. The investigation ensued after 

I was suspended for 30 days. 

Mr. WALBERG. So no review beforehand? 

Mr. COCHRAN. No, sir. 

Mr. WALBERG. Just suspension? 

Mr. COCHRAN. Yes, sir, without pay. 

Mr. WALBERG. Without pay. 

Mr. COCHRAN. But subsequently, the investigation cleared me of 

any discrimination of any sort and certainly no discrimination 

against a member of the department who was a part of the LGBT 

community and never discrimination against any member of the 

city of Atlanta who is a part of the LGBT community. 

Mr. WALBERG. So the city of Atlanta ultimately, maybe after 

reading the book and looking at your record, found that you discriminated against nobody else? 


KING-6430 with DISTILLER
82 

Mr. COCHRAN. That’s correct. There was an assumption from the 

outset of discovering my Judeo-Christian beliefs about marriage 

and sexuality that, because of my beliefs, I would have a propensity to hate people who had those sexual preferences and beliefs or 

discriminate against people who have those sexual preferences or 

beliefs. Their own investigation assured that I had not. 

Mr. WALBERG. In your opinion what could have happened to you 

if you self-published your devotional book when you were a Federal 

fire administrator for the U.S. Fire Administration in 2009? 

Mr. COCHRAN. It’s hard to say what would have happened at that 

time, but in my heart of hearts, I believe that if I would have published that book presently as a Federal employee, the same circumstances I’ve experienced in the city of Atlanta I would experience as a Federal employee. 

Mr. WALBERG. Okay. Regardless of your record? 

Mr. COCHRAN. Regardless of my record. 

Mr. WALBERG. Ms. Waggoner, you have heard some very powerful testimony today from Chief Cochran and others with strong beliefs and viewpoints regarding his outgoing and ongoing real-life 

experience. Are there other examples that you could share with us 

today of similar situations to Chief Cochran having their religious 

liberty infringed upon? 

Ms. WAGGONER. There are numerous examples. At Alliance Defending Freedom, we not only represent Chief Cochran but we represent a number of other individuals who, at the State level, have 

been forced to choose between their livelihoods and their religious 

beliefs, including those that have been sued personally and corporately having everything they own at issue if they lose. And all 

of our clients have willingly served everyone. There is not one case 

we’re aware of in the United States where anyone has denied goods 

or services because someone says they have a particular sexual 

preference. 

Mr. WALBERG. That includes institutions and welfare organizations —— 

Ms. WAGGONER. Absolutely. 

Mr. WALBERG.—and churches? 

Ms. WAGGONER. Absolutely it includes those. What is at issue is 

that we’re seeing some laws being used by the government to force 

people to have to participate in religious ceremonies that violate 

their religious convictions and have to express messages and create 

art that violate their core religious convictions as well. 

I would also note there not only do we have solicitor general’s 

comments threatening tax exemptions for religious institutions, we 

have a number of Executive orders that the Obama administration 

has issued or agency interpretations that threaten that, and then 

we have a number of foster care and adoption agencies who have 

lost their licenses, not to mention the American Bar Association’s 

investigation of Brigham Young University’s Law School, which is 

currently pending as well, I believe. 

Mr. WALBERG. Thank you. I yield back. 

Mr. MEADOWS. I thank the gentleman. 

The chair recognizes the ranking member of the full committee, 

Mr. Cummings. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 


KING-6430 with DISTILLER
83 

Professor Franke, as I understand this bill, it would allow any 

company to fire employees if they are in same-sex marriages without penalty from the Federal Government. This would mean these 

employees would be prevented from getting relief for their wrongful 

termination from the Equal Employment Opportunity Commission. 

Is that your understanding? 

Ms. FRANKE. That’s my reading of the bill, Mr. Cummings. It— 

the bill would prohibit the Equal Employment Opportunity Commission or any other Federal agency from inflicting a penalty. And 

penalty is a very large and vague term, but any penalty against 

someone who’s religious or moral convictions commit them to the 

view that marriage is a union of one man and one woman and/or 

anyone who has extramarital relations, also a very vague term. So 

unmarried parents may also be vulnerable to termination without 

recourse to Federal law. 

Mr. CUMMINGS. So this bill would apply to small business in 

huge corporations, private companies, and publicly traded companies. It would allow them to fire employees and take all kinds of 

other discriminatory actions against them like denying them leave 

to take care of their spouses or children under the Family and 

Medical Leave Act without penalty from the Federal Government? 

Is that correct? Is that —— 

Ms. FRANKE. That’s —— 

Mr. CUMMINGS.—your understanding? 

Ms. FRANKE. That’s correct. 

Mr. CUMMINGS. These companies could pay them less or give 

them reduced benefits like no childcare benefits for children of 

same-sex couples. Is that your understanding? 

Ms. FRANKE. That is my understanding. 

Mr. CUMMINGS. Companies could do this if their CEOs decide 

that they have religious beliefs or moral convictions that cause 

them to discriminate in this way, and the Federal Government 

would be prohibited from taking action. Is that correct? 

Ms. FRANKE. That is correct. 

Mr. CUMMINGS. Is that your understanding? So since we have a 

robust panel here today, I would like to ask each of you some basic 

questions about your views on discrimination. Please raise your 

hands if you believe it is acceptable for businesses in the United 

States to discriminate against employees because of their race. If 

you believe that, would you raise your hands? 

Raise your hand if you believe that it is acceptable for companies 

to discriminate against employees because they are black or white 

or Hispanic or Latino or Asian? 

Now, please raise your hand if you believe it is acceptable for 

businesses in this country to discriminate against employees who 

have disabilities? 

Please raise your hand if you believe it is acceptable for businesses in this country to discriminate against women, to pay them 

less than men for the same work? 

Okay. Now, raise your hand if you believe it is acceptable for 

businesses in this country to discriminate against employees who 

are in same-sex marriages. 

So, Professor Franke, this bill would allow Fortune 500, the biggest earners from the past year, including companies like 


KING-6430 with DISTILLER
84 

ExxonMobil, General Electric, Walmart to create new policies tomorrow to fire any employees in same-sex marriages, or they could 

decide not to provide health insurance, and they would face no recourse from the Federal Government. Is that your understanding? 

Ms. FRANKE. Well, that is a very broad statement. It—what the 

bill does is it allows a company like a Hobby Lobby company who 

has a view based in sincerely held religious belief or moral convictions that marriage should be between a person—one man and one 

woman or that a person should not have extramarital relations and 

take steps in their employment policies to advance those views. In 

that case, employees would be unable to bring any kind of lawsuit 

against those companies in Federal court or using Federal laws. 

Mr. CUMMINGS. Do you think that is fair? 

Ms. FRANKE. I do not think that’s fair. 

Mr. CUMMINGS. Do you think that is consistent with our Constitution? 

Ms. FRANKE. It is absolutely inconsistent with our Constitution. 

Mr. CUMMINGS. And why is that? 

Ms. FRANKE. Besides the fact that it uses religion as a way to 

justify a second run if you will at a Supreme Court decision that 

some people disagreed with. It’s unconstitutional on that level that 

the U.S. Supreme Court has the last word on what the Constitution means. But it also oversteps the Establishment Clause of the 

First Amendment and creates a violation of the prohibition of the 

State taking a position in religious matters or favoring particular 

religious views. The State is supposed to be neutral on these questions, not embrace particular religious views. So there are a number of reasons why I feel like the law is problematic. 

Mr. CUMMINGS. I see my time is expired. Thank you very much. 

Mr. MEADOWS. I thank the gentleman. 

The chair recognizes the gentleman from Ohio, Mr. Jordan, for 

5 minutes. 

Mr. JORDAN. Thank you, Mr. Chair. 

Mr. Cochran, thank you for being here. Thank you for your service, and thank you for your story. I have got two committees going 

on and so I wasn’t able to listen to your testimony, but I read 

through your written testimony, overcoming poverty. Your faith inspired you to achieve the things that you did according to your testimony here. I just want to run back through a few things. 

You were appointed by the President to be U.S. fire administrator for the United States Fire Administration back in 2009. Is 

that right? 

Mr. COCHRAN. That’s correct, Mr. Jordan. 

Mr. JORDAN. And that requires a confirmation hearing or some 

kind of hearing? 

Mr. COCHRAN. Yes, sir. It was a Senate confirmation hearing by 

the Homeland Security Committee. 

Mr. JORDAN. And what was the vote there? 

Mr. COCHRAN. It was a unanimous vote. 

Mr. JORDAN. All right. And then you did that for a while, then 

went back to the city of Atlanta to become fire chief, correct? 

Mr. COCHRAN. Yes, sir. 

Mr. JORDAN. And according to your written testimony, ‘‘I was nationally recognized,’’ fire chief of the year in 2012? 


KING-6430 with DISTILLER
85 

Mr. COCHRAN. That’s correct, sir. 

Mr. JORDAN. Anything in your background ever in your work history, your job evaluations, the things that happen each year when 

you are in this line of work, same kind of things that happen 

around here, ever have a negative on your employment record, anything like that? 

Mr. COCHRAN. No, sir. By the grace of God, it never—there’s 

never been any negative reflections throughout my career. 

Mr. JORDAN. And then you wrote a book, right? 

Mr. COCHRAN. That’s correct. 

Mr. JORDAN. You wrote a book talking about how your faith 

helped you achieve the things that you were able to achieve and 

how it was such an inspiration and so helpful in your life overcoming some of the obstacles you had overcome, is that right? 

Mr. COCHRAN. That was part of it, yes, sir. 

Mr. JORDAN. All right. And then what happened? 

Mr. COCHRAN. Well, a year after the book was published, it was 

discovered that I had written a small portion of the book about Biblical sexuality and marriage. Those few paragraphs were shared 

with the city of Atlanta, which subsequently led to my 30-day suspension without pay. During that 30-day suspension, the city 

launched an investigation. 

Mr. JORDAN. What did the investigation find? 

Mr. COCHRAN. That I had never discriminated against anyone 

throughout my career and certainly not a member of the LGBT 

community. 

Mr. JORDAN. And isn’t it true in that investigation there was ‘‘no 

interviewed witness could point to any specific instance in which 

any member of the organization had been treated unfairly by you,’’ 

is that right? 

Mr. COCHRAN. That’s correct, sir. 

Mr. JORDAN. So they find out you write something, they suspend 

you, they do an investigation, and they find you did nothing wrong 

—— Mr. COCHRAN. That’s correct. 

Mr. JORDAN.—you got this outstanding record, confirmed by the 

U.S. Senate unanimously, President appoints you fire administrator, you are fire chief of the year in 2012, and then you got 

fired? 

Mr. COCHRAN. That’s correct. 

Mr. JORDAN. You got fired. Well, here is what Atlanta City Council member Alex Wan said, according to your testimony: ‘‘I respect 

each individual’s right to have their own thoughts, beliefs, and 

opinions, but when you are a city employee, those thoughts, beliefs, 

and opinions are different from the city’s, you have to check them 

at the door.’’ 

Mr. COCHRAN. That’s correct, sir. 

Mr. JORDAN. I will tell you, Mr. Chairman, that is exactly why 

we have a First Amendment. You do not have to check your beliefs, 

right? That is what this country is about. When you talk about the 

First Amendment, you have to check your beliefs at the door? Are 

you kidding me? That is why this bill is so important. That is why 

Senator Lee and Representative Labrador have brought this bill 

and why it is so important because people like Mr. Cochran, they 


KING-6430 with DISTILLER
86 

shouldn’t have to check their beliefs at the door. Here is a guy who 

did nothing wrong, believed in strongly held religious beliefs that, 

as he says in his testimony, that Christians have held for a couple 

thousand years, and the city council member says you have to 

check them at the door. That is why we are having this hearing, 

that is why this legislation needs to pass, and that is why people 

like Mr. Cochran are heroes for his whole life experience but certainly for standing up for the fact that you don’t have to check your 

religious beliefs at the door. 

And with that, Mr. Chairman, I would yield back. 

Mr. MEADOWS. I thank the gentleman. 

The chair recognizes the gentlewoman from New York, Mrs. 

Maloney, for 5 minutes. 

Mrs. MALONEY. This law that they are discussing today would 

not apply to Mr. Cochran, but I would like to welcome my friend 

and colleague Congressman Frank back to the table. And I am concerned that 1 month, this is the anniversary, the month-long anniversary of the extreme slaughter of gay and lesbian men and 

women at a well-known nightclub in Orlando. And I personally find 

it shameful that we are holding this hearing that is looking at legislation that would further discriminate against the LGBT community on the anniversary of such a tragic, tragic event. 

And, Mr. Frank, as the former chairman of the Financial Services Committee, you spent a great deal of focus on housing policy. 

And I would like you to clear up for the committee how does this 

bill enable a not-for-profit housing organization to take Federal 

money and then discriminate against same-sex couples and deny 

them rental housing, deny them access when their dollars were literally spent to enable the program. 

Mr. FRANK. Thank you, and it is good to be back with you Representative Maloney. 

Yes, I was frankly struck that Mr. Labrador went to such great 

pains to deny this. Ordinarily, when you’re having a discussion and 

one of the people you disagree with denies something that is irrefutably true, that’s a good sign. That’s a weakness he’s trying to 

argue away. 

And I’ve read the bill many times. And his—let me read from the 

bill. Page 3, lines 14 through 16, ‘‘As used in subsection A, a discriminatory action means any action taken by the Federal Government to’’—and then go to page 4, line 1—‘‘withhold, reduce, exclude, terminate, or otherwise made unavailable, deny any Federal 

grant, contract, subcontract.’’ 

And then it says ‘‘This does not extend the protection to a Federal employee acting within the scope of employment or a Federal 

for-profit contractor.’’ Mr. Labrador acknowledged that. He said, 

well, there aren’t that many nonprofits that do the housing. Well, 

he’s wrong about that factually. He hadn’t specialized in that, and 

I understand that, but nonprofit housing groups, religious and others, are very active in doing—in building affordable housing, taking 

Federal money. 

So here’s what this indisputably means. A nonprofit contractor 

takes money from the Federal Government paid for by everybody’s 

taxes, builds rental housing, and then says no same-sex couple can 


KING-6430 with DISTILLER
87 

live there, no same-sex married couple. That’s just—I’m not making 

this up. I’m reading your bill. So don’t tell me it’s not there. No. 

If you want to protect Mr. Cochran from the city of Atlanta, 

which this bill doesn’t, as has been pointed out, if you want to protect somebody at the Federal level, that’s a different bill. 

You want to deal with tax exemption. Frankly, I understand the 

concern about tax exemption. This goes way beyond tax exemption. 

I’m willing to bet the reason is that then you’d lose jurisdiction in 

the Ways and Means Committee and going to have as much fun 

here. 

But the fact is that this bill—we’re not talking about Mr. Cochran’s right to say whatever he wants. By the way, I would agree 

that you should not be fired for your opinion if it’s not relevant to 

your job. But under this bill, you could not say that someone 

couldn’t work for the Equal Employment Opportunity Commission 

or the Justice Department’s Civil Rights Division if they disagreed 

with this Federal constitutional right. 

But let me go back to this point. It’s not disputable. A nonprofit 

contractor, and there are many of them who get tens and hundreds 

of millions of dollars to build rental affordable housing for low-income people, may under this bill deny that tenancy to the—to 

same-sex couples or, according to this bill, to people who are not 

married and are having sex. So if you’re gay, lesbian, bisexual, or 

transgender, I guess you can move in there if you can prove you’re 

celibate. That’s an interesting form that I want to see people fill 

out. 

But on same-sex couples—again, I don’t understand where you’re 

saying it doesn’t—it doesn’t—show me how it doesn’t. 

The last point I do want to note there’s been references to the 

Judeo-Christian one man, one woman, and I may be one of the few 

representatives of the Judeo half of that here, the last time I was 

in temple there was a provision about hailing the fathers, Abraham, Isaac, and Jacob, but then they noted that there were four 

guys and—three guys and four women. So I checked with the rabbi. 

Well, it turned out that Abraham had a wife and also a concubine 

with whom he had a child. So much for extramarital relations. 

Isaac appeared to be pretty conforming, but Jacob wanted to marry 

this woman, and under the rules, then he had to marry her older 

sister first. So he married her older sister and then her. 

So let’s be clear I think at least on the Judeo part the Bible does 

appear to say that you—marriages between one man and at least 

one woman. 

[Laughter.] 

Mr. FRANK. Now, I do want to say I did appreciate the reference 

to Judeo-Christian. I know Mr. Walberg isn’t here. He said this 

was a Christian nation. I appreciate your—some of you broadening 

it to let me in on the action. 

Mr. MEADOWS. I thank the gentleman for his testimony. I thank 

the gentlewoman. Her time is expired. 

Mr. Frank, just to make sure, you are reading from page 3 of the 

newest bill? 

Mr. FRANK. Yes, the current —— 

Mr. MEADOWS. So can you read paragraphs —— 

Mr. FRANK. The amendment in the nature of a substitute —— 


KING-6430 with DISTILLER
88 

Mr. MEADOWS. Yes, no—hold on. Hold on. I won’t gavel you 

down. Can you read sentences 9 through 12 —— 

Mr. FRANK. Yes. 

Mr. MEADOWS.—of your bill to make sure we are talking about 

the same one. 

Mr. FRANK. I appreciate it. You know the thing where when 

you’re losing limb, you reach for it? That’s me and the gavel, so I 

apologize. 

Mr. MEADOWS. Yes. No, that’s all right. 

Mr. FRANK. On page 3—well, on lines 9 —— 

Mr. MEADOWS. Lines 9 through 12 to make sure we are talking 

about the same bill —— 

Mr. FRANK. Right. 

Mr. MEADOWS.—as modified. 

Mr. FRANK. Marriages should be recognized as a union of two individuals of the opposite sex or two individuals of the same sex 

—— 

Mr. MEADOWS. Okay. 

Mr. FRANK.—for X amount—yes. So then you go to—I read 14, 

15 —— 

Mr. MEADOWS. That is fine. I just wanted to make sure —— 

Mr. FRANK. No, it’s the current draft. 

Mr. MEADOWS.—that is the most current version so —— 

Mr. FRANK. Mr. Chairman —— 

Mr. MEADOWS.—the chair recognizes the gentleman from —— 

Mr. FRANK. Mr. Chairman, can I just say one thing? I spent 

much too much time here to read the wrong bill. I’ve seen that result in disaster. This is the right bill. 

Mr. MEADOWS. I thank the gentleman. 

The chair recognizes the gentleman from Arizona for 5 minutes. 

Mr. GOSAR. Thank you, Mr. Chairman. I would like to thank all 

the witnesses for being here today as we work together to find 

ways to protect the fundamental rights guaranteed to all Americans under the Constitution. 

The First Amendment of the United States Constitution states 

that ‘‘Congress shall make no law respecting an establishment of 

a religion or prohibiting the free exercise thereof.’’ These two 

clauses are known as the Establishment Clause and the Free Exercise Clause respectively, and they lay out a clear fundamental right 

of the free exercise of religious faith for all Americans. 

The recent decision in Obergefell v. Hodges presents serious challenges for people of faith and those who believe marriage is between one man and one woman. I believe the Supreme Court got 

this decision wrong. The Justices and the majority allowed public 

opinion and their personal views rather than sound judicial interpretation to guide their decision. 

Chief Justice Roberts, John Roberts wrote, ‘‘The majority’s decision is an act of will, not legal judgment. The quote invalidates the 

marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of 

human society for millennia.’’ 

In an even more scathing statement, the last Justice Antonin 

Scalia opined ‘‘The Supreme Court of the United States has deVerDate Nov 24 2008 10:22 Mar 09, 2017 Jkt 000000 PO 00000 Frm 00092 Fmt 6633 Sfmt 6633 H:\23645.TXT APRIL

KING-6430 with DISTILLER
89 

scended from the disciplined legal reasonings of John Marshall and 

Joseph Story to the mystical aphorisms of the fortune cookie.’’ 

I am proud to be an original cosponsor of the First Amendment 

Defense Act introduced by my good friend Raul Labrador, and I 

commend his leadership. I encourage the House and this committee 

to pass this much-needed bill in a timely manner. 

Dr. Matthew Franck, with the barometer of public opinion and 

the opinion of the Court so varied and ever-evolving, some worry 

that important religious protection efforts like the First Amendment Defense Act are themselves contrary to the First Amendment. In your opinion, does FADA constrict or empower the First 

Amendment? 

Mr. FRANCK. On the contrary, Congressman, thank you for that 

question. FADA stands in a long tradition going back to the founding when militia acts exempted persons scrupulous of bearing arms 

for conscientious religious reasons. Of this Congress enacting laws 

that add layers to the protections, the bare-bones protection of the 

First Amendment, this is pro-First Amendment legislation that 

does not establish religion but bolsters the protection of the free exercise of religion. 

Mr. GOSAR. Thank you. The Obergefell decision has alarmed supporters of traditional marriage, and rightfully so. Many proponents 

of same-sex marriage are not content with the ruling in this case. 

Their ultimate goal is to silence opposition to their position on marriage. They see the Supreme Court’s ruling as justification for them 

to trample on the fundamental right of religious freedom that the 

First Amendment so persistently lays out. 

This was made evident almost immediately after the decision 

when opponents of traditional marriage began calling for churches 

and religious organizations that support traditional marriage to 

lose their tax-exempt status. 

Ms. Waggoner, in your testimony you mentioned the threat of 

Gordon College, its traditional view of marriage, and the threat to 

their accreditation as a result of their religious views. What sort 

of risks do other religious educational institutes face if protections 

like those in the First Amendment Defense Act are not enacted? 

Ms. WAGGONER. Well, thank you for the question. I would like 

to move to admit my written statement to the record as well, which 

includes the Gordon College as an example. 

As I mentioned earlier, the American Bar Association is been investigating Brigham Young University related to their views on 

marriage. In addition to tax exemption, we have a number of religious organizations that face the threat of losing licensures, accreditations, and being inhibited in their operations simply because 

they want to live and work and operate consistent with their beliefs, foster agencies, adoption agencies. 

And I’d like to add that we want to provide diversity in the marketplace. A single mother who’s looking to place a child should be 

able to place that child in the home that she would like and be able 

to choose from the option of ensuring that child has a mother and 

a father. 

So there are a number of property tax exemptions we’ve seen at 

issue at the State level, and then as well we’re seeing more and 

more suggestions that the Federal Government should also be inVerDate Nov 24 2008 10:22 Mar 09, 2017 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6633 H:\23645.TXT APRIL

KING-6430 with DISTILLER
90 

volved in the operation of religious organizations and in how they 

live out their faith. 

Mr. GOSAR. Thank you very much. And that is exactly why it is 

critical that Congress pass the First Amendment Defense Act. This 

commonsense legislation will protect religious freedom from hardworking Americans and businesses by preventing discrimination by 

the Federal Government. Specifically, this important bill ensures 

that a presidential administration with differing religious views 

cannot evoke a nonprofit entity’s tax-exempt status or prevent individuals and organizations from receiving a Federal contract, grant, 

or employment based on their fundamental beliefs. 

And with that, Chairman, I am going to yield back. Thank you. 

Mr. MEADOWS. I thank the gentleman. 

The chair recognizes the gentlewoman from the District of Columbia, Ms. Eleanor Holmes Norton, for 5 minutes. 

Ms. NORTON. I thank the chairman for yielding to me. 

Mr. Chairman, let me say here that on behalf of the people I represent in the District of Columbia of every sexual orientation, I am 

deeply offended by this bill because it is not only an attack on our 

own LGBTQ community whose rights we have gone very far in protecting, but it is an attack on the sovereignty of the District of Columbia itself. 

This bill was actually withdrawn and rewritten in order to include the Nation’s capital, and were it to pass, it would make the 

capital of this nation a discrimination zone for LGBTQ rights. Actually, this question is for Ms. Franke. And Mr. Frank lived in this 

city. It is for both of you. 

Already, I may note that a Federal court has found a bill much 

like this unconstitutional, a Mississippi Federal court, and I believe 

that is going to be the fate of this needless exercise if we still live 

in a constitutional democracy and one that does not allow discrimination laws to be turned on their heads. 

This new bill targets both the Federal and the D.C. government, 

and the way it gets the D.C. government is particularly offensive. 

In spite of the Home Rule Act of 1973, it declares the District of 

Columbia a colony of the Federal Government, indicating that we 

are a part of the Federal Government, an absurdity. In fact, this 

bill is more harmful to the District’s LGBT community than the 

residents of the States because the District has a comprehensive 

antidiscrimination law, and the District’s law prohibits discrimination in private and in the public sectors based, of course, on sexual 

orientation in the same manner that prohibits discrimination based 

on race and sex. 

So the bill not only prohibits the D.C. government from enforcing 

its LGBTQ antidiscrimination law but could, could prohibit private 

citizens from enforcing it, too, either by stripping courts in the District of their authority to impose penalties or by allowing defendants in private civil suits to actually raise a First Amendment defense as a defense due to discrimination. Where have we come to? 

So, Professor Franke first, please explain. Let’s see how this 

would work. Please explain how a landlord or an employer or—I 

was once chair of the Equal Employment Opportunity Commission, 

which of course these provisions are virtually nullified by this 

bill—by a landlord or employer, I don’t know, a restaurant owner 


KING-6430 with DISTILLER
91 

in the District of Columbia who discriminates against an LGBTQ 

person could avoid liability in a private suit? How would that 

work? 

Ms. FRANKE. Thank you, Ms. Norton. The bill is curiously written in a number of places. It’s vague in a number of places. I think 

the draftspersonship of it is questionable. 

Ms. NORTON. Well, for one thing, I think it is in many ways void 

for vagueness as we say. 

Ms. FRANKE. Well, extramarital relations is itself an interesting 

category. But specifically in the definition section, section 6 that 

are contained on pages 7 and 8 of the current bill, the District of 

Columbia is defined first as part of the Federal Government and 

then lastly as a State. So you are right to note —— 

Ms. NORTON. We very much are trying to become a State but we 

can’t be both. 

Ms. FRANKE. I understand that. I understand that. But for the 

purposes of this bill, any nondiscrimination laws that have been 

enacted by the District of Columbia are treated as Federal law or 

actions of the Federal Government that would be prohibited from 

enforcement —— 

Ms. NORTON. Let’s suppose a private party were involved because 

our law —— 

Ms. FRANKE. Well, from the face of the bill it doesn’t seem that 

the bill would prohibit or would reach actions between private parties. So say I wanted to rent an apartment from a private landlord 

and the landlord would only rent to people, two adults who had a 

marriage license —— 

Ms. NORTON. So you could invoke the District’s antidiscrimination law? 

Ms. FRANKE. I do know the District’s antidiscrimination law —— 

Ms. NORTON. Despite the District being declared part of the Federal Government. 

Ms. FRANKE. Right. And part of why the bill in its vagueness is 

actually quite broad is that at least three circuits have interpreted 

similar—very—the exact same language under the Religious Freedom Restoration Act as denying Federal courts of jurisdiction over 

suits between two private parties. So the Federal Government is 

not affirmatively enforcing the law, whether it be the District of 

Columbia or, let’s say, the Department of Justice. All the individuals are doing is availing themselves of Federal court in order to 

enforce rights that are created by law, but this could also apply to 

D.C. courts since the District of Columbia courts are treated as 

Federal courts under this statute—or under this bill. 

And so it wouldn’t be unreasonable for future courts to interpret 

the language of FADA to also reach private suits between a private 

tenant, prospective tenant, and private landlord brought in the 

D.C. court to enforce a nondiscrimination—housing nondiscrimination provision under D.C. law, which would be treated as Federal 

law under the—under FADA. 

If I might add, if the sponsors of this bill insist as they do that 

the law is not intended to overwrite civil rights law, then we 

should fold into the language of this bill the Do No Harm Act, 

which is also pending before this Congress, an act that says that 

religious liberty rights under RFRA and other provisions of reliVerDate Nov 24 2008 10:22 Mar 09, 2017 Jkt 000000 PO 00000 Frm 00095 Fmt 6633 Sfmt 6633 H:\23645.TXT APRIL

KING-6430 with DISTILLER
92 

gious liberty Federal law are not designed to override competing 

civil rights protections. We see none of that language in this law, 

none of that language in this law as it’s currently drafted. 

Ms. NORTON. And thus can expect confusion where such a bill— 

they will particularly never get it through the Senate. But if such 

a bill were passed, the kind of confusion you would see, especially 

in the District of Columbia, you have just laid out, and I thank you 

very much. 

Mr. MEADOWS. The gentlewoman’s time is expired. 

The gentleman from Tennessee is recognized for 5 minutes. 

Mr. DESJARLAIS. Thank you, Mr. Chairman, and I thank the 

panel for being here today to discuss this important issue. Unfortunately, as a nation we have a long history of discrimination, and 

we have made a lot of mistakes. But we strive to correct those mistakes, and I think that the bill that we are debating and discussing 

today would go a long way to correct that. 

Anybody who didn’t get a chance to listen to the testimony of Mr. 

Cochran should. It tells a great story, the story of shameful discrimination, a story of success, and then another story of failure. 

And, you know, I think that the First Amendment Defense Act is 

incredibly important because it helps preserve the constitutionally 

protected rights of religious freedom. 

I support this law, and I believe that it is imperative that we 

prevent the government from treating Americans unfairly because 

of their religious beliefs such as Mr. Cochran was and has been. 

This bill does not seek to take away rights from one group to confer them onto another, but protecting religious freedom is not a 

zero-sum game. This legislation is not designed to strip away rights 

from any group of people but rather to prevent the Federal Government from engaging in discriminating behavior. The text of the bill 

is crystal clear on this matter. 

I would like to commend Senator Lee for his work on this and 

also my friend Raul Labrador, who I find to be one of the most fairminded, honest people that I have probably ever met, and I know 

that he has no intention of discriminating, only protecting everyone’s rights equally. 

Another such person that I have had the privilege to serve with 

is Congressman Jim Jordan of Ohio, and with that, I would like to 

leave the balance of my time to him. 

Mr. JORDAN. I appreciate the gentleman yielding. 

I just wanted to follow up with Chief Cochran again. When you 

were dismissed—again, I want to go back to the statement made 

by the city council member Mr. Wan. He said you have to ‘‘check 

your beliefs at the door.’’ I think the First Amendment says, no, 

you don’t. 

But it looks like you actually did, right? When they investigated 

you, they found no discrimination. They could find no witnesses 

that said you ever did anything wrong in how you handled your operation at the department, is that accurate? 

Mr. COCHRAN. That’s accurate. I just—as an American and as a 

person of faith, I believe that our country has provided an opportunity for us to live out our faith and have our jobs at the same 

time. In the fire service I believe it’s a special calling on a person’s 

life to do what we do for a living. Based upon the fact that what 


KING-6430 with DISTILLER
93 

the fire service does for its communities is rooted in our Constitution, and there’s a clause in the preamble of the United States of 

America that is very fitting for the American fire service, in fact, 

all public safety agencies, where it says ‘‘ensure domestic tranquility.’’ And in the fire service all men and women are called to 

ensure domestic tranquility. 

And on that basis, anyone who believes in that calling on their 

life, it’s very easy to develop a doctrine whereby we all have a consensus agreement on how we should be towards one another and 

how we should be towards any people group within the scope of our 

community. 

So the Atlanta Fire Rescue doctrine that I continue to talk about 

developed a vision statement based upon all the—input from all 

the people groups on a strategic planning team that was developed 

when I took office. Two of those members happened to be members 

of the LGBT community that was a part of that process. We also 

developed a mission statement, and we developed core values that 

any firefighter under any demographic should actually embrace. 

One of those core values was we committed to have an -ism-free 

environment at work, which meant that all of us have an obligation 

to ensure that there’s no racism, sexism, nepotism, or any other 

-ism that would interfere with our duty to one another —— 

Mr. JORDAN. I think everyone needs to understand what happened here. 

Mr. COCHRAN. Yes. 

Mr. JORDAN. The city council says you have to check your beliefs 

at the door. The First Amendment says you do not. But you in fact 

it didn’t do anything wrong in your employment, and you actually 

went further. You developed a policy working with people of different beliefs in your department to come up with this Atlanta Fire 

Rescue doctrine. 

Mr. COCHRAN. Yes. 

Mr. JORDAN. And still—so understand again, check your beliefs 

at the door; no, the First Amendment says you don’t have to do 

that; you didn’t do anything to proselytize, you didn’t do any of 

that; everyone interviewed said no wrong conduct here at all; and 

you went the extra step of developing a doctrine that says we are 

going to be inclusive, and still they terminated your employment 

because something you believed and wrote outside your responsibilities as fire chief and you were fired for that. 

Mr. COCHRAN. Yes, sir. 

Mr. JORDAN. If that doesn’t underscore why we need this legislation, Mr. Chairman, I don’t know what does. 

Mr. MEADOWS. I thank the gentleman. 

The chair recognizes the gentleman from Massachusetts, Mr. 

Lynch, for 5 minutes. 

Mr. LYNCH. Thank you, Mr. Chairman, and welcome back, Barney. Good to see you again. 

Before Senator Lee and Representative Labrador left, they were 

emphatic in asking us all to read the bill. And like Ms. Franke, it 

is my job and I think all of our jobs to read these bills closely and 

oftentimes repeatedly. I know that Congressman Frank did that as 

a chairman, as a Member of Congress here quite well during his 

time. 


KING-6430 with DISTILLER
94 

So let’s go right to this bill. This was only an eight-pager, so if 

you are sitting at home, this is a pretty easy bill to read, straightforward. I usually don’t get hung up on precatory language, but in 

section 2—it has findings here—section 2, paragraph 6. I am going 

to read this. 

It says, ‘‘In a pluralistic society in which people of good faith hold 

more than one view of marriage, it is possible for the government 

to recognize same-sex marriage, as required by the United States 

Supreme Court, without forcing a person with a sincerely held religious belief or moral conviction to the contrary to conform.’’ Basically, what that is is an opt-out provision for a constitutional right. 

It basically says even though the United States Supreme Court 

says this is a right, we are going to recognize same-sex marriage, 

this bill basically says that people get to opt out. They get to opt 

out. 

However, if you go back to the Constitution and you read the 

14th Amendment and the Fifth Amendment, if equal protection 

means equal protection, then you can’t have people opting out of 

constitutional rights that are guaranteed and reinforced by the 

United States Supreme Court. 

And so this bill in its own way is at war with itself, with its own 

premise that even though there is a constitutional right, people can 

ignore it, people can opt out. That is a fundamental flaw in this 

bill. 

Let’s go to some of the other attestations that have been made 

here today, that this bill doesn’t affect any other Federal right or 

law. If you just go to section 3, the first sentence, it says ‘‘In general, notwithstanding any other provision of law.’’ So what it does, 

it establishes the primacy of this legislation over every other Federal law. 

Now, in another section that goes back to—and that includes any 

other Federal law, so FMLA, The Affordable Care Act, OSHA, EPA, 

the Federal Labor Standards Act, the Federal housing statutes that 

Mr. Frank talked about before, those are all impacted here, the 

Civil Rights Act as well. It basically requires this law to have primacy over all of those other laws, so it is flatly—the text of it is 

not consistent with the allegations of colleagues, Mr. Labrador and 

Senator Lee. 

It does provide some language here that points to this issue. It 

says ‘‘under rules of construction,’’ section 5, here is what it says: 

It says ‘‘No preemption, repeal, or narrow construction - nothing in 

this act shall be construed to preempt State law or repeal Federal 

law’’—and here is the catch—‘‘that is equally or more protective of 

free exercise of religious belief and moral conviction.’’ So if there is 

a Federal law out there that is more protective of religious freedoms, that law can stand. All other laws are subsidiary to this law. 

And that is the problem. It creates a primacy that someone with 

a firm religious or moral belief—and morals change; those are very 

subjective, the sense of right and wrong—it allows an individual 

person to basically opt out, again, of those constitutional rights 

that are recognized and upheld by the Supreme Court and embedded in our Constitution. 

Let me ask, Ms. Franke, you have read this bill. Am I wrong in 

pointing to the text of this legislation? 


KING-6430 with DISTILLER
95 

Ms. FRANKE. You’re absolutely right. You’re absolutely right. And 

I would give you a parallel example. Many people in this country 

hold their Second Amendment rights dearly, see them as fundamental, the right to bear arms, the right to carry weapons. And 

many people in this country, not only Quakers but others, who 

have religious and moral beliefs of pacifism —— 

Mr. LYNCH. Right. 

Ms. FRANKE.—who would not want someone walking into their 

school, in—if they walked into my classroom with a weapon, I 

would have a moral—deeply held moral opposition to that. 

Mr. LYNCH. Right. 

Ms. FRANKE. And by the language of this bill, I am allowed to 

opt out of what is pretty clear constitutional doctrine around the 

right to carry weapons —— 

Mr. LYNCH. Right. 

Ms. FRANKE.—the right to bear arms. 

Mr. LYNCH. Right. 

Ms. FRANKE. Right? So we’re opening a door here —— 

Mr. LYNCH. Well, I do want to point out, though, that for the 

cases Mr. Frank pointed out before where someone, a conscientious 

objector in a military situation may try to opt out from a provision 

that is mandatory and requires them to carry arms, same-sex marriage is not mandatory. 

Ms. FRANKE. Not yet, no —— 

Mr. LYNCH. No. 

Ms. FRANKE.—thankfully. 

Mr. LYNCH. Well, I see my time is almost expired. Mr. Frank, do 

you have anything you want to add here? 

Mr. MEADOWS. The gentleman’s time actually has long expired, 

and so we will let you briefly answer this question. 

Mr. FRANK. Okay. 

Mr. MEADOWS. It was a good try, Mr. Lynch. 

Mr. LYNCH. Well, thank you. 

Mr. FRANK. One other point and that is—and you pointed out the 

limitation on the anti-preemption. It allows everything else to be 

preempted. But there was one argument that said, oh, you don’t 

have to worry about housing discrimination because these other 

laws would stay in effect. Well, as you pointed out, they probably 

wouldn’t, but the point is this: There are no Federal laws at this 

point that explicitly protect you in a statutory way because you’re 

in a same-sex marriage, nor in many States is there any protection 

at all. So the only protection, the only rule that says that you have 

to treat same-sex married couples fairly and the availability of 

housing would be a Federal executive policy, which can be overridden. So, again, the argument about housing is just—is not an argument. It’s clearly not. 

Mr. MEADOWS. Okay. I thank the gentleman. 

Mr. LYNCH. I want to thank the chairman for his indulgence, and 

I yield back the balance of my time. 

Mr. MEADOWS. I thank the gentleman from Massachusetts. 

The chair recognizes the gentleman from Georgia, Mr. Hice, for 

5 minutes. 

Mr. HICE. Thank you, Mr. Chairman. 


KING-6430 with DISTILLER
96 

And, Mr. Obergefell, I want to thank you for your testimony. I 

want you to know sincerely that I am sorry for your loss, and as 

a pastor I say my prayers for comfort for you as you continue working through this. 

And, you know, I believe that we are created in the image of 

God, and every life deserves to be respected. And although we may 

have disagreements, we are here in America where we are able to 

have those disagreements here in a civil kind of way. But I sincerely want you to know prayers are with you as you work through 

this. 

Chief Cochran, I want to go back to you, fired by the city of Atlanta very clearly because of your religious beliefs. And, in fact, Mr. 

Chairman, many of us in the Georgia delegation wrote a letter of 

support on behalf of Chief Cochran to Atlanta Mayor Kasim Reed, 

and I would like to have that letter submitted to the record. 

Mr. MEADOWS. Without objection. 

Mr. HICE. Chief Cochran, the mayor of Atlanta stated, in essence, that he was disturbed by the sentiments of your book about 

marriage, is that correct? 

Mr. COCHRAN. Yes, sir. 

Mr. HICE. And, in fact, you were banned from having that book 

distributed in the city, is that correct? 

Mr. COCHRAN. Yes, after it came out that I had written a book, 

from that point forward, yes, sir. 

Mr. HICE. Right. That is what I mean. And you personally had 

to undergo sensitivity training? 

Mr. COCHRAN. It was a condition of my return to work, but regretfully, even though the investigation exonerated me of any discrimination, I did not have the privilege of resuming my employment as the fire chief of the city of Atlanta. 

Mr. HICE. So you would have had to undergo sensitivity training 

had you gone back? 

Mr. COCHRAN. That’s correct. 

Mr. HICE. And yet, as you just referred to again, you never had 

any accusations or any record whatsoever of discrimination. In fact, 

you put forward, as you describe, in essence, an antidiscrimination 

panel? 

Mr. COCHRAN. Yes, sir. In fact, because of the discrimination that 

I experienced as a firefighter coming through the ranks in the city 

of Shreveport, I just made a vow that that could not happen and 

would not happen under my watch, and I did everything I could to 

prevent it from happening. 

Mr. HICE. Did you put forth that panel as far as you appointing 

the individuals who served? 

Mr. COCHRAN. Yes. It was a consensus development of the group. 

Because I was the new guy in town, I didn’t know any of the members of the department. I relied on the counsel of the deputy chiefs 

and assistant chiefs to assemble a group of men and women that 

represented every people group within the department, and we did 

that. 

Mr. HICE. And so there were people in that group who did not 

agree with your position on marriage? 

Mr. COCHRAN. Yes, sir. 

Mr. HICE. But they were still on the panel that you put together? 


KING-6430 with DISTILLER
97 

Mr. COCHRAN. That’s correct. 

Mr. HICE. That speaks volumes as to your resistance to participating in discrimination. Do you believe that the mayor of the city 

of Atlanta discriminated against you? 

Mr. COCHRAN. Absolutely. 

Mr. HICE. So they did not express to you the same conduct that 

you had exhibited in your leadership? 

Mr. COCHRAN. That’s correct. 

Mr. HICE. Do you believe that they discriminated specifically because of your religious beliefs? 

Mr. COCHRAN. They made it perfectly clear that the actions that 

were taken against me were based upon the expressions in my 

book that I had mentioned about marriage and Biblical sexuality. 

Mr. HICE. They certainly did, and the U.S. Commission on Civil 

Rights actually wrote about your case that it is remarkable to 

claim, as the city of Atlanta does, that religious beliefs are not a 

matter of public concern and therefore are unprotected by the First 

Amendment. It is stunning to me that we can have a State like Atlanta outrightly coming forth saying that religious liberties should 

not be protected under the First Amendment. 

And again, this underscores why we need the First Amendment 

Defense Act. You do not waive your First Amendment right just because you work for the government, nor do you waive your First 

Amendment right because you go to work or you go to a church or 

you are at a school or wherever it is. The First Amendment applies 

to every citizen of this country. 

Ms. Waggoner, let me come to you real quickly. The pendulum 

of discrimination obviously swings in both directions, and what we 

are seeing now is government itself doing the discrimination. Can 

you give us real briefly some examples of that? 

Ms. WAGGONER. We have numerous cases at the State level 

where business owners, small business owners who hire LGBT people, serve LGBT people have declined to create art or to promote 

messages or celebrate and participate in same-sex ceremonies, and 

as a result, they’re faced with the loss of everything they own. We 

have a number of religious organizations who their accreditation 

and licensure has been at issue, and we also know of the tax-exemption issues. 

If you would permit me, I would also like to address some of the 

misstatements as to what this law actually does. For example, the 

suggestion that employees under the penalty provision could somehow be penalized is simply not true. It does not allow termination 

of employees. It does not change existing law. The rights that you 

would have, you continue to have under Federal and State law. 

And more importantly, while we have cited different provisions 

that are preemptory language that is not a part of what this bill 

does, if you turn to section 3, discriminatory actions are defined explicitly. They’re extremely narrow. They don’t focus on other provisions of the law. They don’t focus on housing or those types of 

things. They focus on accreditation, licensure, certification, funding, 

and government contracts, nothing more and nothing less. So 

again, these misstatements, I would encourage this committee to 

look at what the bill says. Don’t engage in conjecture about it. 


KING-6430 with DISTILLER
98 

And lastly, I would just add the Mississippi decision has been 

raised here. Mississippi’s decision is a trial court decision that was 

based on a preliminary injunction that if that decision is upheld, 

every single—virtually every single accommodation we have provided in this nation would be eviscerated by that judge’s ruling. 

We are confident it will be appealed and, although it didn’t need 

to do this, FADA is very different from the Mississippi law because 

it covers all viewpoints. You can have a strongly held viewpoint in 

same-sex marriage or a strongly held viewpoint based on religious 

and moral convictions, on opposite-sex marriage, and both beliefs 

are protected. That is about tolerance. That’s about diversity. 

That’s about protecting both sides. So again, look at what the provisions of this bill does. 

And one last point if you wouldn’t mind, Chief Cochran, if he had 

been in the Obama administration and this would have happened 

to him, there is no question FADA would protect him. Thank you. 

Mr. HICE. I thank the chairman. And I likewise just hope that 

this marriage question does not become a litmus test for functioning in American society. Thank you, sir. 

Mr. MEADOWS. I thank the gentleman. The gentleman’s time is 

expired. 

The chair recognizes the gentleman from California, Mr. Lieu, for 

5 minutes. 

Mr. LIEU. Thank you, Mr. Chair. 

America is great because we are not a theocracy, and you have 

seen the dangers of theocracies today. Some of the most repressive 

regimes in the world are based on countries that have laws based 

on religion. The reason we don’t do that in the United States is because our Founding Fathers were quite smart. They put in the 

First Amendment of the United States Constitution—and let’s just 

read that First Amendment one more time. It says ‘‘Congress shall 

make no law respecting an establishment of religion or prohibiting 

the free exercise thereof.’’ 

So the very first line in the First Amendment says ‘‘Congress 

shall make no law respecting an establishment of religion.’’ That is 

why when Barney Frank took an oath of office to be a Member of 

Congress, and when members of this committee took an oath of office, we took an oath to the Constitution, not the Bible. Many of 

us did place our hand on the Bible when we took the oath of the 

Constitution, but it was not the other way around. 

And the way we have balanced religious liberties where we respect people of any religion, respect those who don’t have any religion, is we let religions operate freely within their area. We even 

allow religions to discriminate within their sphere. We don’t allow 

religion to impose their views on others. 

So, Ms. Franke, let me ask you—and by the way, I happen to be 

Catholic. The Catholic faith, by its very own policy, just flat-out 

discriminates against women, right, by saying women cannot be in 

any leadership position? You can’t be Pope, you can’t be a bishop, 

you can’t be a priest, isn’t that correct? 

Ms. FRANKE. Well, you’re the Catholic. I assume that’s correct, 

yes. 

Mr. LIEU. And yet we allow them to have a tax-exempt status, 

isn’t that correct? 


KING-6430 with DISTILLER
99 

Ms. FRANKE. We do, but the—well, I’ll let you —— 

Mr. LIEU. Right. Islamic mosques, many of them separate men 

and women when they do their religious practices. We allow them 

to have their tax-exempt status, right? 

Ms. FRANKE. In some cases. It depends on each religious institution certainly, yes. 

Mr. LIEU. And our nation has taken this view that we are just 

going to allow religions to do whatever they want within their religion, to discriminate if they feel like it, to not discriminate. But 

when we talk about laws, they are secularly based, isn’t that right, 

that we base our laws not on religion but on government officials, 

on Members of Congress, on the President? 

Ms. FRANKE. Yes, that’s right. 

Mr. LIEU. So this bill to me is dangerous because it does exactly 

the opposite. For the first time it is actually taking one particular 

religious belief of one religion and elevating it to secular law. And 

to me the reason that that is so dangerous is that is now leading 

us down the road to theocracy. 

And I so want to make this point that—I have read the bill, and 

it is not just that this bill is leading us on the road to theocracy. 

The way it is written is just crazy. I respect the authors of the bill. 

I don’t believe they are crazy; they are reasonable people. But there 

is just some crazy language in this bill. 

So one of them is, guess what, this bill applies to extramarital 

relations. So under this bill folks who are having an affair get to 

be discriminated against under this bill for it to become law. That 

potentially applies to premarital sex, right, because it is not defined, so if you are not in a marriage and you have sex, under this 

bill you get to be discriminated against. 

We are here in the 21st century. I hope the millennials are 

watching us. This is crazy language. This is a crazy bill, taking 

really, really religious beliefs and elevating it to secular law, never 

been done in the history of the United States, never should it be 

done. 

And I am going to give my colleague Barney Frank some time 

to —— 

Mr. FRANK. Thank you. And I do reiterate if people want to talk 

about the Bible, Abraham would be excluded there. He did have a 

child with Hagar outside of his marriage. 

But I want to respond to Ms. Waggoner who reads the bill—yes, 

you read the bill; you don’t read every other line. You read every 

line. Here’s what it says on page 4. She says, oh, it’s got nothing 

to do with housing; it’s just about certification and licensing. She 

forgot a few lines. At the top of page 4, ‘‘withhold, reduce, exclude, 

terminate, or otherwise make unavailable or deny any Federal 

grant,’’ any Federal grant, contract, subcontract, et cetera. Then 

you get to license and certification. That’s what housing is about. 

You say it doesn’t deal with housing. Of course it does. You build 

housing in part with Federal grants and Federal contracts. 

So I’m just astounded that you would say, oh, it’s just about certification and licensing. You skipped the first two—the two lines 

just before that. And it is indisputable that under this bill, a nonprofit could get a Federal contract or grant to build affordable rental housing and say if you have had extramarital relations or if you 


KING-6430 with DISTILLER
100 

are in a same-sex marriage, you’re not eligible for the tenancy, and 

the Federal Government could not refuse to allow you to get that 

contract under those grounds. It’s not just about certification. 

Again, don’t just read the bill; read every line. 

Mr. MEADOWS. The gentleman’s time is expired. 

Mr. LIEU. Thank you. 

Mr. MEADOWS. I thank the gentleman. 

Mr. LIEU. I yield back. 

Mr. MEADOWS. The chairman recognizes the gentleman from 

South Carolina, Mr. Mulvaney, for 5 minutes. 

Mr. MULVANEY. Thank you, Mr. Chairman. 

Before we have a legal conversation—I hope we get a chance to 

do that—I just want to ask maybe a commonsense question or a 

gut question. 

Mr. FRANK. It’s supposed to be. 

Mr. MULVANEY. And I have heard Mr. Cochran’s story for the 

first time. It’s very compelling. To summarize what I understand 

happened is that you were dismissed from your job even though 

you didn’t discriminate against anybody because in a book you 

quoted lines out of Scripture? Is that fair, sir? 

Mr. COCHRAN. That’s correct, sir. 

Mr. MULVANEY. Does anybody think that is right, anybody on the 

panel? No? Everybody is saying no. Okay. 

I understand the criticisms today of the bill. In fact, one of the 

questions I am going to ask Mr. Lee is why he wrote it the way 

that he did it because I think you are right. I think the bill as written would not protect Mr. Cochran. But if we all agree that what 

happened to Mr. Cochran is wrong, and I happen to agree with 

that and apparently everybody else does here—in fact, I would ask 

everybody here if they think that was right—how do we fix that? 

Well, Mr. Frank, you know I am going to give you a chance to talk 

as you and I are friends and I am going to do it, but before we 

move on, I want to ask a couple other questions and then we figure 

out how to fix this because that is something that needs to be fixed. 

The next question is this: If there is a Jewish school that happens to teach traditional marriage, is there anybody here who 

thinks they should lose their tax-exempt status? 

No one is saying yes. I assume everybody says no. Someone in 

the back says no. We will talk to them later. 

Ms. FRANKE. It depends. 

Mr. MULVANEY. And I’m going to come to that in the second. And 

I’ll ask the same questions about Catholic churches. Should they 

lose their tax-exempt status if they won’t marry gay couples? I 

think the answer is no. Does anyone want to take the position that 

they should? And none of them have and I want to get to that. 

Lastly, I am going to ask the same thing about—pick a list—Islamic charities that choose not to serve homosexual couples, I don’t 

think anybody would take the position here that any of those entities should lose their tax-exempt status. Mr. Frank, I will start 

with you because I know you are interested in doing this, but —— 

Mr. FRANK. They shouldn’t lose their tax-exempt status but neither should they be able to go for a Federal grant as they would 

be under this bill. And among the religions that —— 


KING-6430 with DISTILLER
101 

Mr. MULVANEY. Yes, but you don’t get to have it both ways. And 

what you said before was that you didn’t want to have your tax 

money used to do things that you can’t participate in. 

Mr. FRANK. Right. 

Mr. MULVANEY. There are a lot of people who think that the fact 

that the Catholic Church receives tax-exempt status—one of them 

is sitting in this room—that that is using their tax money —— 

Mr. FRANK. Well, I mean, that is fine —— 

Mr. MULVANEY.—but you are now allowed to avail yourself of 

that. 

Mr. FRANK. No—well, one, I would—frankly, I’ve been told that 

the church is interested in conversions, and my understanding is 

that I’d probably be welcome. But the second point is this—and not 

only would I be welcome, the Pope wouldn’t judge me. But the 

other point, though, is this. I do guard the station. I hope you’re 

not, Representative Mulvaney, equating a tax exemption with a 

Federal grant. I think a tax exemption is a lower level of scrutiny 

that applies for a tax exemption than to getting a Federal grant. 

The distinction I would make—unless you’re equating the two and 

you’re saying that anybody eligible for an exemption should be eligible for a grant —— 

Mr. MULVANEY. And what I am saying to you, Mr. Frank, is that 

I think there are people who disagree with me, by the way, who 

might be of a different mindset on this who don’t differentiate between the two. 

Mr. FRANK. Well, I—look, there are people who think Elvis is 

alive, but I don’t think that’s accurate. I don’t think that’s the way 

the government works. 

Mr. MULVANEY. But to Mr. Lee’s —— 

Mr. FRANK. None of us act on that basis. 

Mr. MULVANEY. But to Mr. Lee’s point again, I am sorry that he 

left because I think Mr. Cummings is right. We would have liked 

to have them stay, but I am going to get a chance to ask them this. 

He pointed to an exchange during Mr. Obergefell’s campaign—during the case in front of the Supreme Court where it seems as if 

that question is very much open. 

Mr. FRANK. And if you want to make —— 

Mr. MULVANEY. Look —— 

Mr. FRANK. The bill —— 

Mr. MULVANEY. There are certain things this administration 

have said that said they are open-minded to withdrawing —— 

Mr. FRANK. I understand that —— 

Mr. MULVANEY.—the tax-exempt status. So go ahead. 

Mr. FRANK. Divide it up. This tax exemption, there’s a question 

of firing. By the way, I don’t think the fire chief should have been 

fired, but neither do I think that the Equal Opportunity Employment Commission shouldn’t be able to inquire into it. And my difference with my formal colleague Mr. Jordan is this. This is not a 

bill to protect First Amendment rights. That’s—that Atlanta City 

Council—every other First Amendment right except this one would 

be checked. So how do you protect them? You pass a bill that says 

no one can be fired because of his or her political or religious opinion that is wholly irrelevant to the job, and you don’t single out one 


KING-6430 with DISTILLER
102 

particular aspect of one particular religion. Separately—you deal 

with tax exemption separately. 

But we’ve always held a different view. Richard Nixon started 

this when he said you’re going to not get a Federal contract if you 

don’t engage in even affirmative action in the construction area, 

but—you could have your tax exemption but you couldn’t get the 

Federal grant. 

So I think there are three levels. There’s whether or not you can 

speak out. There’s tax exemption. Yes, you should be protected in 

your expression of opinion, religious or not, as long as it’s irrelevant to your job. 

Mr. MULVANEY. Well, there is a lawsuit brought to deny the Jewish school, the Catholic Church, or the Islamic charity their tax-exempt status. I hope they play that. 

Now, Ms. Franke—by the way, does anybody else think it is —— 

Mr. MEADOWS. The gentleman’s time is expired. 

Mr. MULVANEY. Oh, I am sorry. 

Mr. MEADOWS. Last question, we have been a little generous, so 

last question very quickly. 

Mr. MULVANEY. No, I —— 

Mr. FRANK. Mr. Chairman, if I was here I would yield time because I used up his time. 

Mr. MULVANEY. I could do it in just a couple —— 

Mr. MEADOWS. You have used up a lot of people’s time but that 

is all right. 

Mr. MULVANEY. It is not the first time that Mr. Frank has taken 

my time at one of these hearings, but I always enjoy the back-andforth. Thank you all for participating. Ms. Franke, I did want you 

to follow up—maybe somebody else will have a chance to do it— 

when you said that under certain circumstances you might want to 

deprive those religious institutions of their tax-exempt status. 

Maybe you will get a chance to follow through on that with somebody else. 

So I thank the chairman. I thank the panel. 

Mr. MEADOWS. All right. I thank the gentleman. I am going to 

recognize one other—there has actually been a vote called on the 

Floor, a motion to adjourn, which should be one vote. So I am going 

to recognize the gentlewoman from New Jersey, Mrs. Watson Coleman, for 5 minutes, and then we are going to take a slight recess. 

Mrs. WATSON COLEMAN. Thank you, Mr. Chairman. And thank 

you to all of you. 

And, Mr. Cochran, I don’t understand why you are here today because I don’t understand how your case is involved, but I wish you 

the best of luck because it seems like something went wrong there. 

Mr. COCHRAN. Thank you. 

Mrs. WATSON COLEMAN. Ms. Columbia Law Professor Franke, I 

have a couple of questions for you. Number one, under this proposal, is it conceivable that a woman, a single woman with a child 

could be denied housing? 

Ms. FRANKE. That can happen every day. The question is whether she can bring a complaint against her landlord before a Federal 

—— Mrs. WATSON COLEMAN. Under this —— 

Ms. FRANKE. Yes. 


KING-6430 with DISTILLER
103 

Mrs. WATSON COLEMAN.—proposal? 

Ms. FRANKE. She would have a defense under FADA, the landlord would in those cases of rendering Federal law on this issue on 

enforceable, and the District of Columbia law as well. 

Mrs. WATSON COLEMAN. So under this proposal could an employee technically refuse to allow a member of—an employee from 

a same-sex marriage or a heterosexual marriage if you are opposed 

to heterosexual marriage to not be able to do family leave for a sick 

person? 

Ms. FRANKE. Yes. 

Mrs. WATSON COLEMAN. Could an employer potentially not hire 

and/or fire someone because of their marital status? 

Ms. FRANKE. Actually, marital status discrimination is not currently prohibited under Federal law, but it is under D.C. law, and 

since it’s treated as Federal law, that would be the case. 

Mrs. WATSON COLEMAN. Okay. And the same thing goes for public accommodations to any of those issues as well, right? 

Ms. FRANKE. Yes. 

Mrs. WATSON COLEMAN. All right. Is it not hypocritical to include 

the notion that you can apply these principles that are outlined in 

this proposal to heterosexual couples and unmarried heterosexual 

couples? Is not more than a facade? 

Ms. FRANKE. Well, if I gave this legislation as a final exam question in law—at Columbia Law School, this would probably—it 

might be a failing exam. The idea that there are people who believe 

that marriage should be limited only to two people of the same sex, 

only limited to them, if they believed that out of religious or deep 

moral conviction, it’s an interesting idea, but I’m unaware of anybody that holds those views. Perhaps other members of the panel 

do. 

Mrs. WATSON COLEMAN. Okay. Thank you. You have sort of answered my question. 

Ms. FRANKE. Yes. 

Mrs. WATSON COLEMAN. I think that I just need to share this. 

First of all, I find it offensive that any day of the year that this 

proposal would be raised before us with all the important issues 

that are confronting us. I think that this is some of the worst form 

of discrimination that I have ever seen. And I believe that while 

my colleague referred to it as crazy language, I consider it more 

hurtful than anything, and that we are considering this one month 

after what happened in Orlando, Florida. And this evening there 

is going to be a vigil. It is just another element of disrespect and 

disregard. 

And I for one am sickened by having to come to OGR and to have 

these kinds of hearings that don’t move our society one bit closer 

to unifying and having respect and understanding of our individual 

and collective rights. And my right can’t infringe upon your right 

and your right can’t infringe upon my right. And my Republican 

majority colleagues just can’t seem to get that, and that is abhorrent and that is a disregard for the job that they have been asked 

to do here. 

Thank you. I yield back. 

Mr. MEADOWS. I thank the gentlewoman. 


KING-6430 with DISTILLER
104 

We will go ahead and recess. And just for planning purposes, it 

will be a short recess so hopefully no more than 5 to 10 minutes, 

but subject to the call of the chair. 

So the committee stands in recess. 

[Recess.] 

Mr. MEADOWS. The Committee on Oversight and Government 

Reform will be called back into session. I appreciate all of your 

flexibility with regards to the vote on the House Floor. I know 

other members are headed back this way, so I am going to go 

ahead and recognize the gentleman from Wisconsin, Mr. Grothman, 

for 5 minutes. 

Mr. GROTHMAN. Well, I was going to ask Mr. Cochran some questions, but we are going to have to put Ms. Waggoner on the spot. 

I assume, you know, from your biography you have represented a 

lot of people, maybe primarily but not exclusively of the Christian 

faith. Why don’t you in general give—you may be familiar—I don’t 

know what your personal religious background is, but you could in 

general just give us a Christian perspective or the belief of, say, 

many mainline Christian churches, be it Baptist, Assembly of God, 

WELS Lutheran on this issue. 

Ms. WAGGONER. Well, I can’t speak to all faiths, but I can tell 

you that I know in terms of the Abrahamic religious tradition that 

marriage is between a man and a woman. The Holy Scriptures contain many different provisions that essentially say that and that 

God created man and woman to partner together and in sexual 

complementary to create human beings in his image. And so the 

purpose of marriage in religion is to perpetuate the human race 

and to honor the dignity and equality of all human beings and create families that will be in the image of God and promote human 

flourishing in that. 

Mr. GROTHMAN. Okay. I don’t know. Do you have children? 

Ms. WAGGONER. I do. 

Mr. GROTHMAN. Good. Congratulations. 

Ms. WAGGONER. My daughter’s here today. 

Mr. GROTHMAN. Good. Good, good, good. Your mom is doing a 

good job. Do you then want—do you hope your children would—you 

are raising your children hoping they will have the same beliefs 

that you do? Is that part of the Christian faith that you want to 

raise your children to also share in that faith, share in those beliefs? 

Ms. WAGGONER. It would very much be my hope and my priority 

that my children choose to walk in the faith that we have chosen 

and that we are a part of. At the same time, though, what I so 

much appreciate about the Christian faith is that it’s a matter of 

free will, and they have that choice and need to make their—that 

decision on their own. 

Mr. GROTHMAN. Okay. I will give you a general question because 

they want me to give you a general question. Could you give us an 

oversight of what this bill does and why it is important to you? 

Ms. WAGGONER. Well, the bill is important because what we’re 

seeing at the State level and also beginning to see at the Federal 

level is that those who have the politically unpopular view now 

that marriage is between a man and a woman are being silenced, 

banished, and punished, including threatened with jail time potenVerDate Nov 24 2008 10:22 Mar 09, 2017 Jkt 000000 PO 00000 Frm 00108 Fmt 6633 Sfmt 6633 H:\23645.TXT APRIL

KING-6430 with DISTILLER
105 

tially, threatened with crippling fines, and forced to go out of their 

business and not earn a livelihood simply because they will not 

promote a message about same-sex marriage that violates their religious convictions or they won’t actually participate in a same-sex 

ceremony. There is no case in this nation that we’re aware of where 

anyone has been denied services simply because someone expressed 

a sexual preference. And instead what we have seen is truly the 

bullying and the penalization of those who just seek to live peacefully and work peacefully consistent with their beliefs. 

Mr. GROTHMAN. Okay. Just going through some of the papers we 

got to prepare today, apparently one issue out there is there are 

adoption agencies, and apparently some adoption agencies don’t 

like to place children with same-sex couples. If you were ever in a 

position to put a child up for adoption, would you prefer that your 

child not be placed with a same-sex couple? 

Ms. WAGGONER. Well, I don’t know that my personal beliefs 

would be particularly relevant —— 

Mr. GROTHMAN. Well, I will put it this way. Would a whole lot 

of people with mainstream Christian beliefs not want their child 

placed with a same-sex couple? 

Ms. WAGGONER. I don’t know what a whole lot of people would 

do, but I know that in a diverse and tolerant society, they should 

be able to have that choice. And that’s what’s so great about the 

American system. It’s also important to know that there are a 

number of religiously based adoption agencies and foster care agencies that it’s not simply that they don’t want to, it’s that they don’t 

believe it’s in the child best interest because children do best with 

mothers and fathers. They have the right to know and be loved by 

their mothers and their fathers. 

Mr. GROTHMAN. Are we in danger in this country without a bill 

similar to this of creating a situation which if you want to put your 

child up for adoption, you will not be able to assure that your 

child—if you go through a mainstream adoption agency, you 

know—you will not be able to assure that your child will be raised 

by a mother and father? 

Ms. WAGGONER. Well, we don’t even have to speak in future 

tense because that’s already happened. We can look in D.C. and Illinois and in other States where Catholic charities and other religiously based adoption agencies has been forced to close their 

doors. They’ve lost their licenses simply because they are a religious organization that wants to operate consistent with their religious beliefs on marriage. 

Mr. GROTHMAN. Okay. I don’t believe we can have the government establish a religion, but isn’t it true—you are a lawyer—that 

our forefathers anticipated America being a country in which you 

would be free to practice your Christian belief and free to raise 

your children in that belief? 

Ms. WAGGONER. Absolutely. And we know that throughout our 

history in America our Founding Fathers, as well as those in Congress and others, have successfully provided religious accommodations, balanced religious liberty interests against other important 

State interests, interests that include national security and education and health care. We can do this and there’s no reason that 

we shouldn’t here. 


KING-6430 with DISTILLER
106 

Mr. GROTHMAN. Are we headed in this country towards a place 

in which the Federal Government and State governments are hostile to parents who want to raise their children in a Christian 

faith? 

Mr. MEADOWS. The gentleman’s time is expired, but you can answer the question. 

Ms. WAGGONER. There’s no question that there is government 

hostility to those who believe that marriage is between a man and 

a woman. There’s no question that they’re being silenced, that 

they’re being banished from the marketplace simply because of 

their views. 

Mr. MEADOWS. I thank the gentleman. I thank you. 

The chair recognizes the gentleman from Oklahoma, Mr. Russell, 

for 5 minutes. 

Mr. RUSSELL. Thank you, Mr. Chairman. And thank you, panel, 

for being here today and for your testimonies. 

I am not certain whether FADA is the best means for protecting 

what is constitutionally guaranteed or not. I think it needs more 

deliberation. But one thing I am certain of, Mr. Chairman, is that 

in our current day the greatest assault on the free exercise of religion is being perpetuated by those most responsible to protect it, 

those who uphold the law. Instead of upholding the free exercise 

clause of the First Amendment, we have now seen this body continue its assault on faith in America. 

It is not enough to level accusations of injustice. Many will not 

be satisfied until their assaults of intolerance on people of faith in 

this country has produced an elimination of God in public life in 

America. We are accused of hatred, called out as shameful, and enjoined to use the whole Constitution to support an opposing view 

that embodies behavior more as an outcome that not only violates 

our conscience but have been prohibited under the laws of nature 

and nature’s God. 

In the last 50 years we have seen the Constitution used by 

ideologues to kill American children in the womb, eliminate family 

structure, elevate behavior over belief, redefine marriage, and assault into silence and in action any who oppose them. Not satisfied, 

we now see them without rest on their quest to eliminate free exercise of faith in the United States. 

Do we really want a nation without God? They would call it 

progress, yet our conscience knows different. The apostle Paul explained why when he said—and I am exercising my First Amendment right to state this—‘‘For the wrath of God is revealed from 

Heaven against all ungodliness and unrighteousness of men who 

suppress the truth in unrighteousness because what may be made 

known of God is manifest in them for God has shown it to them. 

For since the creation of the world, His invisible attributes are 

clearly seen, being understood by the things that are made, even 

His eternal power and Godhead so that they are without excuse because although they knew God, they did not glorify Him as God, 

nor were thankful but became futile in their thoughts and their 

foolish hearts were darkened. Professing themselves to be wise, 

they became fools. Therefore, God also gave them up to uncleanness in the lust of their hearts to dishonor their bodies among 


KING-6430 with DISTILLER
107 

themselves, who exchanged the truth of God for the lie and worshiped and served the creature rather than the Creator.’’ 

The Creator. Our nation has always been anchored in the Creator from its inception, throughout its history. God has been the 

foundation of our republic, as seen in the sweeping lines in the 

Declaration of Independence. None of the founders of this country 

believed that a governmental connection to religion was an evil in 

itself. They oppose the establishment of a national religion because 

it could prohibit free exercise of faith, but that faith would and 

should be freely exercised. 

The same day the Bill of Rights was introduced, July 13, 1787, 

this Congress also introduced the Northwest Ordinance to lay 

guidelines and instruction on new territory acquired by a future 

United States. Article 3 of that ordinance stated, ‘‘Religion, morality, and knowledge being necessary to good government and happiness of mankind, schools and the means of education shall be forever encouraged.’’ 

Forever be encouraged, Mr. Chairman. Some in this body today 

would believe forever stops in 2016 and should have stopped much 

sooner. They claim that Congress grants these inalienable rights 

and use the powers of government without the consent of the governed to regulate and diminish faith and eliminate it from public 

life. 

In 1798, in response to the claim that Congress could regulate 

the First Amendment freedoms without abridging them, James 

Madison condemned it saying, ‘‘The liberty of conscience and the 

freedom of the press were completely exempted from all congressional authority whatever.’’ 

Mr. Chairman, forever be encouraged. Is that where we stand 

today? Shall religious freedom, the hallmark of Columbia’s shores, 

continue to be forever encouraged? Or do we who are so humbly 

honored to serve in these chambers now step aside as we see the 

indispensible supports of our religion and morality knocked from 

under our foundation. 

Mr. Chairman, I can’t be silent. Since I was 18, I have pledged 

and defended the Constitution of the United States of this great republic. I have been moved by conscience and dictates to speak out 

against the coercion of people of faith who are being discriminated 

against because they hold to the laws of nature and nature’s God. 

Our institutions, once based on the Creator of life, have now appointed themselves to usurp the authority of God, who is the author of life, marriage, and family. 

The most elemental sovereign unit, the family, has been destroyed by our foolish decisions. We are told instead by those of us 

sworn to uphold the law that murder is not murder, marriage is 

not marriage, family is not family. We have allowed constitutional 

constructs to kill a child and call it a choice. We have seen discreet 

behaviors and private sexual preferences now promoted to public 

display while what is constitutionally guaranteed to be able to express, religion, is now publicly prohibited. This nation at its highest 

level, it seems, has taken a position against God. 

And so I close with this, Mr. Chairman, is it possible to form a 

more perfect union without God? Can we establish justice absent 

the giver of law? Can domestic tranquility be ensured when we 


KING-6430 with DISTILLER
108 

abandon His precepts? Can we provide for a common defense absent a mighty fortress and an unfailing bulwark? How do we promote the general welfare when every American is now seemingly 

unanchored, adrift to do what seems right in his own eyes? Do we 

suppose we can secure the blessings of liberty without Him? Can 

we acknowledge our prosperity and expect to obtain His blessing 

without acknowledging His existence? 

And so, Mr. Chairman, like our forebears, I will not be silent 

while it is still legal to not be. My faith directs that I act with love 

and civility and gentlemanly manner. My optimism is secured by 

eternal hope and everlasting truth. My conscience speaks to God’s 

eternal being so that I am without excuse, but His love and mercy 

cannot be separated from those who answer His call. 

Mr. Chairman, I yield back my time. 

Mr. MEADOWS. The gentleman’s time is expired. 

The chair recognizes himself for a series of questions. 

And, Dr. Franck, let me come to you. Specifically, a lot has been 

said here today about penalties and what may happen and what 

may not happen. So as it relates to this particular piece of legislation, can you speak to the penalty clause and what it is and what 

it is not? 

Mr. FRANCK. Yes. Thank you, Mr. Chairman. I regret that more 

Democratic members haven’t rejoined us because I think that some 

of them were misreading the text of the bill. I’m willing to forgive 

them for that error in light of the fact that the Columbia law professor to my right seems also to be misreading the bill and perhaps 

misleading the members. 

The word ‘‘penalty’’ appears one time in FADA as now written, 

as proposed by Congressman Labrador, and that’s in section 3 on 

page—yes on page 3, line 18, in context that refers only to tax penalties under the Internal Revenue Code. So let me go back to the 

top, the notwithstanding clause. ‘‘Notwithstanding any other provision of law,’’ what, ‘‘the Federal Government shall not take any discriminatory action against a person.’’ And discriminatory action is 

defined several lines later. The very first definition of discriminatory action is a reference to unfavorable tax treatment because of 

one’s religious or moral convictions about marriage. 

Mr. MEADOWS. So what you are saying is —— 

Mr. FRANCK. It is the only place where penalty is —— 

Mr. MEADOWS.—is that if they violate it, the IRS cannot come in 

and say you owe a penalty —— 

Mr. FRANCK. Right. 

Mr. MEADOWS.—and they cannot charge a penalty as punishment, is —— 

Mr. FRANCK. It’s unfavorable tax treatment alone. And what this 

means is that all the worries I’ve been hearing today about FADA 

undoing civil rights protection, the Family and Medical Leave Act, 

the Fair Housing Act, title VII, title IX, it’s all misplaced. 

Mr. MEADOWS. So what you are saying —— 

Mr. FRANCK. And it —— 

Mr. MEADOWS.—is the text of that bill would not support any 

undoing of the Fair Housing Act or the Civil Rights Act or anything like that? Ms. Waggoner, would you agree with that? 

Ms. WAGGONER. Absolutely. 


KING-6430 with DISTILLER
109 

Mr. MEADOWS. So if that is the case and that is obviously something of great debate, if you believed, Ms. Waggoner, that this particular bill would undo the Civil Rights Act or the Fair Housing 

Act, would you oppose this bill? 

Ms. WAGGONER. I would need to look at what the bill actually 

does, but what I can say —— 

Mr. MEADOWS. Well, let’s put it in context. Let me just tell you 

from my standpoint, if this bill undermines those foundational 

things that have served us to protect civil rights, I will oppose this 

bill. 

Ms. WAGGONER. I would agree with you very much so. 

Mr. MEADOWS. Okay. And so I guess what I am here to say is, 

Dr. Franck, if you are saying that this penalty would not actually 

be a penalty to say that we could discriminate, is that what you 

are saying? I don’t want to put words in your mouth. 

Mr. FRANCK. No, that is what I’m saying. If the Federal Government is obliged under Civil Rights, Family Medical Leave Act, Fair 

Housing Act, to assess a penalty against persons engaging in unlawful discrimination, FADA does not let those people off the hook. 

It simply doesn’t. 

Mr. MEADOWS. So those penalties would stay in place under existing law, and this bill does not do anything to undermine that? 

Is that your sworn testimony? 

Mr. FRANCK. Yes. 

Mr. MEADOWS. Okay. Ms. Waggoner, would you agree with that? 

Ms. WAGGONER. Yes, I would. 

Mr. MEADOWS. Okay. Ms. Franke, I have found that your testimony was very engaging, and I shared that with you personally. 

And here is where I would like to work with you knowing that we 

probably come from two different ideological perspectives on this 

particular issue. However, maybe at the core of that foundation is 

both of us in the belief that discrimination is something that is abhorrent and something that should not be tolerated. And would you 

agree that discrimination is something that is abhorrent and 

shouldn’t be tolerated? 

Ms. FRANKE. I think I can agree with that. 

Mr. MEADOWS. Well, I thought you might. And so in doing that, 

here is what I would like for all of us to do is let’s look at the text 

of this bill. And, Ms. Franke, you have said that your Columbia law 

students would have gotten an F if they had drafted it this way, 

so we will tell Ledge Counsel that they just got an F at Columbia 

Law School. 

Ms. FRANKE. There’s a procedure, though, for reopening a grade. 

Mr. MEADOWS. Okay. Well, let’s look at the procedure for reopening a grade because here is what I would like to do is we have had 

very robust conversations that disagree. Now, what my concern is 

is that we are at times missing each other based on misinformation 

on what the bill is, on what the bill might do, and on what the bill 

does do. And so I think it is important for us to really start to narrowly focus and start to say the narrowly focused portions of this, 

what does it protect and what does it not protect because I have 

heard a number of my colleagues on both sides of this particular 

seat suggest things that may not be entirely accurate from the context of what is there. 


KING-6430 with DISTILLER
110 

I think we can all agree, Chief Cochran, that the kind of discrimination that you had to face is not only wrong, but it goes 

against our constitutional founding principles. And even Mr. 

Frank, who may not agree with you on some of your particular positions, agrees that the way that you were treated was incorrect. 

Isn’t that correct, Mr. Frank? 

Mr. FRANK. It is, and I wish we had a bill to protect him. 

Mr. MEADOWS. Well, in doing that we can certainly look at a bill, 

but what we have is something far greater than a bill. We have the 

Constitution. In the Constitution, the same Constitution that Ms. 

Frankie will teach her law students to make sure that she upholds, 

is there to do it. 

Now, here is the interesting thing. When jurisprudence starts to 

come in and starts to look at our founding principles from a constitutional standpoint, then it is important for us to act. Then, it 

is important for us to clarify. Then, it is important for the legislative body to say this is what we will tolerate, this is what we believe is appropriate, and indeed that, I can tell you in talking to 

my good friends Senator Lee and Raul Labrador, that is their intent is not to discriminate. In fact, if anything, it is to stop discrimination. And that needs to be the underlying principle here 

today in all of the argument that goes back and forth. 

So, Ms. Waggoner, do I have your commitment that you are willing to work with this committee and indeed members of this committee perhaps individually to help us look at the language and 

make sure that it does not indirectly or directly violate the Fair 

Housing Act or the Civil Rights Act or anything like that? Will you 

be willing to do that? 

Ms. WAGGONER. We would very much appreciate that opportunity. 

Mr. MEADOWS. Well, you have a standing invitation, and my 

schedule is open to you. 

Ms. Frankie, do I have your commitment to do the same with me 

as we would sit down, without any cameras, without any reporters, 

to try to work through this to make sure that those protections are 

there? 

Ms. FRANKE. Absolutely. 

Mr. MEADOWS. Thank you, Ms. Franke. Dr. Franck, do I have 

your same assurances where you can look at this and say here is 

how we are going to work together to make sure that all rights are 

protected? Will you be willing to work with us? 

Mr. FRANCK. Absolutely. 

Mr. MEADOWS. Well, I thank each of you. 

The gentleman from Georgia has come in, and so the chair recognizes the gentleman from Georgia, Mr. Carter, for 5 minutes. 

Mr. CARTER. Thank you, Mr. Chairman, and thank all of you for 

being here. 

Chief Cochran, thank you especially. As a fellow Georgian, I have 

followed your case since its beginning, and it has saddened me. I 

will tell you that. It saddened me to hear that your 34-year career 

during which you were nationally recognized as fire chief of the 

year came to an abrupt end at the hands of the city of Atlanta, all 

because you expressed your religious beliefs. 


KING-6430 with DISTILLER
111 

After you were suspended but before you were terminated, the 

city of Atlanta determined that you had not discriminated against 

anyone for any reason. None of the witnesses interviewed by the 

city could point to a single instance in which any member of any 

organization was treated unfairly by you, is that correct? 

Mr. COCHRAN. That’s correct, sir. 

Mr. CARTER. Yet, because the city of Atlanta, the mayor of Atlanta, and city council had already publicly disagreed with your religious beliefs before the investigation, you were terminated despite 

no evidence that you discriminated against anyone, is that correct? 

Mr. COCHRAN. That’s correct, sir. 

Mr. CARTER. Do you believe that if you had published your book 

while you were employed at the Federal level as a fire administrator for the U.S. Fire Administration that you would have been 

fired from that position for your beliefs? 

Mr. COCHRAN. It’s hard to say at that time whether or not I 

would have, but I believe, based upon the tremendous radical shift 

in the atmosphere in the United States of America on this issue of 

marriage and sexuality, where I, the U.S. fire administrator, in 

these times, I would certainly be terminated from employment. 

It is my desire to see legislation at the Federal, State, and local 

level that will protect any American, in spite of or regardless of 

their belief about marriage and sexuality, be protected from adverse consequences for actually expressing that or living it out in 

their personal lives. 

Mr. CARTER. So, Chief Cochran, you believe that the First 

Amendment Defense Act will protect Federal employees from suffering the same punishment that you suffered, you, the national 

fire chief of the year suffered? 

Mr. COCHRAN. Yes, sir, I believe that it will, and I think it will 

also provide a provision whereby people who share different beliefs 

from the government on marriage and sexuality will not be withheld from employment from the Federal Government as well. 

Mr. CARTER. Mr. Chairman, opponents of this First Amendment 

Defense Act would have us believe that this is a solution in search 

of a problem and that this doesn’t happen at the Federal level. But 

here we have an example, here we have an example of an awardwinning public servant who served both at the State and the Federal level who was fired without evidence of any wrong doing other 

than elected officials didn’t like his religious beliefs. That is it. Simply, they did not like his religious beliefs, no other reason whatsoever, no indication, no proof of any kind of discrimination by anyone at any level. 

You know, if someone can get fired by one of the largest cities 

in the country for freely expressing their religion, which is a constitutionally protected right, then it is only a matter of time before 

this happens at the Federal level. And it is my belief that this is 

the reason why we need this legislation, to protect anyone, anyone 

who expresses their beliefs. 

Chief Cochran, do you agree with that? 

Mr. COCHRAN. I absolutely agree with you, sir. 

Mr. CARTER. Chief, as I said, I have followed your case closely. 

Two years ago at this time I was in State Senate of Georgia and 

I followed it very closely. In fact, you may not know, but we both 


KING-6430 with DISTILLER
112 

share the same condo complex in Atlanta, and you are a neighbor 

of mine. And I am proud to call your neighbor, and I am proud because you are a fine American. 

Thank you, Mr. Chairman. I yield back. 

Mr. WALKER. [Presiding] Thank you, Mr. Carter. 

The chair recognizes himself for 5 minutes. 

Thank you again for all the panel in being here today. We appreciate your time. I do have a couple of questions that I wanted to 

come through just in case we have, yes, about 4 or 5 minutes left. 

Let me start with Ms. Waggoner. One of the questions that I would 

like to hear from you if possible if you have time to answer it, if 

the government was to force faith communities to violate their freedom to believe or to discontinue community services, what would 

our local communities lose? 

Ms. WAGGONER. They would lose all kinds of humanitarian and 

good works. In many instances we have a number of religiously oriented foster care and adoption agencies. We have Catholic hospitals. We have Islamic hunger programs. We have Jewish food 

banks. Much of the humanitarian work that is done in the United 

States is done by those who are motivated by faith. And there’s a 

mistaken notion that they would choose to forgo their religious beliefs to stay open. We’ve seen that in other cases as well. 

Mr. WALKER. I would certainly concur. I have had the opportunity over the years of serving in the inner cities of places like 

Cleveland and New York and Baltimore, and there is no match for 

what faith-based organizations can do, specifically in some of these 

tough-to-reach places. These are the people that hold the hands of 

the sickest, that reach out. 

I am reminded in Moore, Oklahoma, you may have remembered 

the tornadoes that viciously swept through there. I was compelled 

to remember the newscast. CBS and NBC did a joint newscast 

where Harry Smith and Brian Williams both. And I remember the 

quote by Harry Smith. It says, ‘‘As you and I have seen it in so 

many different places in this country, if you are waiting for the 

government, you are going to be in for an awful long wait.’’ However, he said this: ‘‘The Baptist men, they are going to get it done 

tomorrow.’’ 

And I think about that as an over-context to make sure that as 

we look at legislation that we are protecting those who are working 

behind the scenes in places where their names aren’t recognized or 

in headlines or in the press, but they are doing the work because 

they are driven by their faith to do so.’’ 

Chief Cochran, you make us proud. You have survived discrimination both in the civil rights arena, as well as any political correctness arena. The comments that we have heard today about 

checking your beliefs at the door, you have stood up. And to use 

a passage that you might be familiar with that I am reminded of, 

I believe it was Paul that wrote, ‘‘Alexander the coppersmith did 

me much harm, but for what they meant for harm, God meant for 

good.’’ And I think your life is a story because you have kept your 

faith, and you have kept the right spirit. And now I believe that 

you are being celebrated because of that. 


KING-6430 with DISTILLER
113 

My question to Representative Frank would be this: Do you condone the harassment made by the city of Atlanta against Chief 

Cochran? 

Mr. FRANK. Well, I know you’ve kind of been in and out, but I’ve 

said several times that I don’t. 

Mr. WALKER. Okay. 

Mr. FRANK. I did also note that this a bill, of course, would do 

nothing to prevent that. And the bill, if I can use all these terms, 

it’s over-inclusive and under-inclusive. It protects only one set of 

statements, a particular religious belief about a particular issue. I 

think the bill ought to be to give protection to any statement of any 

political or religious belief as long as it’s not job-relevant. In his 

case, it wasn’t job-relevant. If it was for the Justice Department’s 

Civil Rights Division, it would be. So I think a law that protects 

any statement of religious or political belief that’s irrelevant to the 

job duties should be passed. 

Mr. WALKER. How about for elected office? 

Mr. FRANK. Oh, I do not believe that we interfere with what the 

voters can do. I’m against any—as far as elected office, in fact, 

there was a case you will remember when a Member of this body 

from South Carolina shouted something out, and the President and 

the House—unwisely in my judgment—voted to criticize him. I refused to vote on that. I think the relationship between elected officials and his or her constituents is paramount, and nobody else 

should intrude into that. 

Mr. WALKER. That was before I arrived, but I do remember that 

making news. 

My follow-up question, Mr. Frank, is that I know that there have 

been some comments that you have made in the past, former President Mitt Romney about his particular views on traditional marriage, and I think that you have found him offensive. Is that to a 

place there that you would say that these people who hold religious 

belief in traditional marriage should not be protected? 

Mr. FRANK. Of course not. In fact—I—again, you’re—when a 

preacher from Kansas, from Westboro went and started harassing 

or picketing funerals of servicemen because he said God was punishing America because it was too pro-gay, and this House voted 

400 to 3 to legally prohibit him from doing so, even when he wasn’t 

intruding on the grounds, I was one of the three and the Supreme 

Court said we were right. No, I am in favor of any opinion anywhere. I am not in favor of having money go to someone. 

And by the way, this does not protect the fair housing law, notwithstanding any other provision of law. I am not for being taxed 

so people can build housing from which people like me are excluded. 

Mr. WALKER. There may be some debate on that. And I want to 

conclude with my final question here to Dr. Franck if I could, 

please. Will FADA authorize employees of the Federal Government 

to refuse to provide services to same-sex couples and/or eliminate 

any antidiscrimination protections for LGBT employees of such 

contractors? 

Mr. FRANCK. No, not on any fair reading of the—of FADA that 

I can see. And if I may, former Congressman Frank has now twice 

referred to persons working in the Civil Right Division of the JusVerDate Nov 24 2008 10:22 Mar 09, 2017 Jkt 000000 PO 00000 Frm 00117 Fmt 6633 Sfmt 6633 H:\23645.TXT APRIL

KING-6430 with DISTILLER
114 

tice Department earlier. He also referred to persons working in the 

EEOC. And if I understood him correctly, he regarded people’s 

opinions on marriage there as so fundamentally job-related that he 

would let them go even if they did not act on those beliefs in their 

official capacity in their job performance. 

So perhaps he would like to clarify or quality —— 

Mr. FRANK. May I? 

Mr. FRANCK.—what he said, and I invite him to do so, but it 

sounded like—because I’m sure there are people—persons who believe in conjugal marriage between one man and one woman working today in the Civil Rights Division and the EEOC, and it sounded like he’d like them to lose their job. 

Mr. FRANK. May I respond? 

Mr. WALKER. Just 30 seconds. 

Mr. FRANK. Yeah. Just as I would say if you say you’d believe 

in racial discrimination or religious discrimination, any time you 

are at an agency that’s in charge of protecting and enforcing constitutional rights and you express your view that that constitutional right should not exist and it’s damaging to the country, then 

you should not be in the enforcement position there. 

Mr. WALKER. Thank you, Representative Frank. Well, let me say 

thank you to all of our witnesses for their appearance here today. 

It has been a little bit of a long hearing, but you have been patient, 

and we appreciate your testimony. 

If there is no other further business, without objection, the committee stands adjourned. 

[Whereupon, at 1:27 p.m., the committee was adjourned.] 


KING-6430 with DISTILLER
(115) 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD


KING-6430 with DISTILLER
116 


KING-6430 with DISTILLERInsert offset folio 55 here 23645.055

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 1 of 60 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

NORTHERN DIVISION 

RIMS BARBER; CAROL BURNETT; 

JOAN BAILEY; KATHERINE 

ELIZABETH DAY; ANTHONY LAINE 

BOYETTE; DON FORTENBERRY; 

SUSAN GLISSON; DERRICK JOHNSON; 

DOROTHY C. TRIPLETT; RENICK 

TAYLOR; BRAND IlL YNE MANGUMDEAR; SUSAN MANGUM; .JOSHUA 

GENERATION METROPOLITAN 

COMMUNITY CHURCH; CAMPAIGN 

FOR SOUTHERN EQUALITY; and 

SUSAN HROSTOWSKI 

PLAINTIFFS 

v. 

CAUSE NO. 3:16-CV-417-CWR-LRA 

consolidated with 

CAUSE NO. 3:16-CV-442-CWR-LRA 

PHIL BRYANT, Governor; .JIM HOOD, 

Attorney General; JOHN DAVIS, Executive 

Director of tbe Mississippi Department of 

Human Services; and JUDY MOULDER, 

State Registrar of Vital Records 

MEMORANDUM OPINION AND ORDER 

DEFENDANTS 

The plaintiffs filed these suits to enjoin a new state law. ·'House Bill 1523, .. before it goes 

into effect on July 1, 2016. They contend that the law violates the First and Foutieenth 

Amendments to the United States Constitution. The Attorney General's Office has entered its 

appearance to defend HB 1523. The parties briefed the relevant issues and presented evidence 

and argument at a joint hearing on June 23 and 24.2016. 

The United States Supreme Comi has spoken clearly on the constitutional principles at 

stake. Under the Establishment Clause of the First Amendment, a state ·'may not aid, foster, or 
117 


KING-6430 with DISTILLERInsert offset folio 56 here 23645.056

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 2 of 60 

promote one religion or religious theory against another:· Epperson v. Arkansas. 393 U.S. 97. 

I 04 ( 1968). "When the government acts with the ostensible and predominant purpose of 

advancing religion. it violates that central Establishment Clause value of official religious 

neutrality. there being no neutrality when the government's ostensible object is to take sides:· 

AfcCremy Cnty .. Kentucky v. ACLU (!f Kentucky, 545 U.S. 844, 860 (2005) (citation omitted). 

Under the Equal Protection Clause of the Fourteenth Amendment, meanwhile. a state may not 

deprive lesbian and gay citizens of"the protection of general laws and policies that prohibit 

arbitrary discrimination in governmental and private settings.·· Romer v. Evans, 517 U.S. 620, 

630 (1996). 

HB 1523 grants special rights to citizens who hold one of three '"sincerely held religious 

beliefs or moral convictions" reflecting disapproval of lesbian, gay, transgender. and unmarried 

persons. Miss. Laws 2016, HB 1523 § 2 (eff. July 1, 2016). That violates both the guarantee of 

religious neutrality and the promise of equal protection of the laws. 

The Establishment Clause is violated because persons who hold contrary religious beliefs 

are unprotected- the State has put its thumb on the scale to favor some religious beliefs over 

others. Showing such favor tells ''nonadherents that they are outsiders. not full members of the 

political community, and ... adherents that they are insiders. favored members of the political 

community." Santa Fe Indep. Sch. Dis/. v. Doe. 530 U.S. 290. 309-10 (2000) (quotation marks 

and citation omitted). And the Equal Protection Clause is violated by HB 1523's authorization of 

arbitrary discrimination against lesbian. gay. transgender, and unmarried persons. 

··It is not within our constitutional tradition to enact laws of this sort." Romer. 517 U.S. at 

633. The plaintiffs' motions are granted and HB 1523 is preliminarily enjoined. 

2 
118 


KING-6430 with DISTILLERInsert offset folio 57 here 23645.057

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 3 of 60 

I. The Parties 

A. Plaintiffs 

The plaintiffs in this matter are 13 individuals and two organizations Joshua Generation 

Metropolitan Community Church (JGMCC) and the Campaign for Southern Equality (CSE). 

All of the individual plaintiffs are residents. citizens. and taxpayers of Mississippi who 

disagree with the beliefs protected by l-IB 1523. They fall into three broad and sometimes 

overlapping categories: (l) clergy and other religious officials whose religious beliefs are not 

reflected in l-IB 1523; (2) members of groups targeted by l-IB 1523; and (3) other citizens who, 

based on their religious or moral convictions. do not hold the beliefs l-IB 1523 protects. 

The first group includes Rev. Dr. Rims Barber, Rev. Carol Bumett. Rev. Don 

Fortenberry, Brandiilyne Mangum-Dear. Susan Mangum, and Rev. Dr. Susan 1-lrostowski. Rev. 

Dr. Barber is an ordained minister in the Presbyterian church. Rev. Burnett is an ordained United 

Methodist minister. Rev. Fotienberry is an ordained United Methodist minister and the retired 

chaplain of Millsaps College. Mangum-Dear is the pastor at JGMCC. while Mangum is the 

director of worship at that church. Rev. Dr. 1-lrostowski is the vicar of St. Elizabeth's Episcopal 

Church in Collins. Mississippi. as well as an employee of the University of Southern Mississippi. 

Katherine Elizabeth Day. Anthony (Tony) Laine Boyette. Dr. Susan Glisson. and Renick 

Taylor comprise the second group ofplaintiffs. 1 Day is a transgender woman; Boyette is a 

trans gender man. Dr. Glisson. an employee of the University of Mississippi, is unmarried and in 

a long-term sexual romantic relationship with an unmarried man. Taylor is a gay man who is 

engaged to his male partner. The couple plans to marry in the summer of 2017. 

The third group of individual plaintiffs includes Joan Bailey, Derrick Johnson, and 

Dorothy Triplett. Bailey is a retired therapist whose practice was primarily devoted to lesbians. 

1 Mangum-Dear. Mangum, and Rev. Dr. Hrostowski also fall into this group. 

3 
119 


KING-6430 with DISTILLERInsert offset folio 58 here 23645.058

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 4 of 60 

Johnson is the Executive Director of the Mississippi State Conference of the NAACP. and 

Triplett is a retired government employee and a longtime activist. 

JGMCC is a ministry in Forrest County. Mississippi. whose members fall into all three 

categories. It '·welcomes all people regardless of age. race. sexual orientation, gender identity, or 

social status:· Docket No. 1, ~ 16. in Cause No. 3: 16-CV-417 [hereinafter Barber]. In particular. 

the church sponsors "a community service ministry that promotes LGBT+ equality:· Id. 

Approximately 90% of its members in Forrest County identify as LGBT. Transcript of Hearing 

on Motion for Preliminary Injunction at 168. Barber v. Bryant, No. 3:16-CV-417 (S.D. Miss. 

June 23, 2016) [hereinafter Tr. of June 23]. There are over 400 Metropolitan Community 

Churches worldwide. !d. 

CSE is a non-profit organization that works '·across the South to promote the full 

humanity and equality oflesbian, gay, bisexual, and transgender people in American life.'' 

Docket No. 2-2, at 2, in Cause No. 3:16-CV-442 [hereinafter CSE IT·l It is based in Notih 

Carolina but has worked in Mississippi since 2012.ld. CSE claims to advocate for 

Mississippians in all three categories of plaintiffs. ld. at 4. 

B. Defendants 

Governor Phil Bryant is sued in his official capacity as the chief executive of the State of 

Mississippi. State law charges him with the responsibility to ·'see that the laws are faithfully 

executed.'' Miss. Code Ann.§ 7-1-S(c). 

Attorney General Jim Hood is also sued in his official capacity. Among his powers and 

duties, he is required to "intervene and argue the constitutionality of any statute when notified of 

a challenge." ld. § 7-5-1; see In the Interest <1( R.G., 632 So. 2d 953, 955 (Miss. 1994). 

4 
120 


KING-6430 with DISTILLERInsert offset folio 59 here 23645.059

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 5 of 60 

John Davis is the Executive Director of the Mississippi Department of Human Services. 

Under Mississippi Code § 43-1-2(5). he is tasked with implementing state Jaws protecting 

children. One of the offices under his purview. the Division of Family and Children's Services. is 

·•responsible for the development. execution and provisions of services .. regarding foster care. 

adoption. licensure, and other social services. Miss. Code Ann. § 43-1-51.2 

Judy Moulder is the Mississippi State Registrar of Vital Records. She is responsible for 

•·caiTy[ing] into effect the provisions of law relating to registration of marriages."' !d. § 51-57-43. 

HB 1523 requires Moulder to collect and record recusal notices from persons authorized to issue 

marriage licenses who wish to not issue marriage licenses to certain couples due to a belief 

enumerated in HB 1523. HB 1523 § 3(8)(a). 

II. Factual and Procedural History 

A. Same-Sex Marriage 

Because HB 1523 is a direct response to the Supreme Court's 2015 same-sex marriage 

ruling, it is necessary to discuss the background of that ruling. 

This country had long debated whether lesbian and gay couples could join the institution 

of civil marriage. See, e.g.. Andrew Sullivan. Here Comes the Groom, The New Republic. Aug. 

27, 1989. The debate played itself out on the local, state. and national levels via constitutional 

amendments, legislative enactments. ballot initiatives, and propositions. 

In its most optimistic retelling, .. [i]ndividuals on both sides of the issue passionately, but 

respectfully, attempted to persuade their fellow citizens to accept their views." Obergefell v. 

Hodges, 135 S. Ct. 2584.2627 (2015) (Scalia, J.. dissenting). But see David Carter, Stonewall: 

The Riots that Sparked the Gay Revolution I 09-10, 183-84 (2004) (describing the 1966 

'During the 2016legislative session, Mississippi's lawmakers created the Department of Child Protective Services, 

a standalone agency independent of the Department of Human Services. See 2016 Miss. Laws, SB 2179. The new 

department was created upon passage, but the bill allows a transition period of up to two years. ld 

5 
121 


KING-6430 with DISTILLERInsert offset folio 60 here 23645.060

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 6 of 60 

Compton's Cafeteria riots by transgender citizens in San Francisco, and the famous 1969 

Stonewall riots in New York City). Less charitably, but also true. is the reality that every time 

lesbian and gay citizens moved one step closer to legal equality. voters and their representatives 

passed new laws to preserve the status quo. 

In the 1990s, for example, Hawaii's same-sex marriage lawsuit inspired the federal 

Defense of Marriage Act (DOMA) and a wave of state-level "mini-DOMAs." Campaign for 

Southern Equality v. B1:vant, 64 F. Supp. 3d 906,915 (S.D. Miss. 2014) [hereinafter CSE 1]. 

Mississippi's politicians joined the movement by issuing an executive order and passing a law 

banning same-sex marriage. !d. It was not until 2013 that DOMA was struck down in part. 

United States v. Windsor, 133 S. Ct. 2675 (2013). Mississippi's mini-DOMA lasted unti12015. 

CSE I, 64 F. Supp. 3d at 906. 

In the early 2000s, Lawrence v. Texas and Goodridge v. Department of Public Health, 

cases that found in favor of lesbian and gay privacy and marriage rights, respectively. resulted in 

a wave of state constitutional amendments banning same-sex marriage. CSE I, 64 F. Supp. 3d at 

915. Mississippians approved such a constitutional amendment by the largest margin in the 

nation. !d.; see Michael Foust, 'Gay Marriage' a Loser: Amendments Pass in all II States, 

Baptist Press, Nov. 3. 2004. 

The lawfulness of same-sex marriage was finally resolved in 2015. The Supreme Court 

ruled in Oberge{ell v. Hodges that same-sex couples must be allowed to join in civil marriage 

"on the same terms and conditions as opposite-sex couples." 135 S. Ct. at 2605. The decision 

applies to every governmental agency and agent in the country. "The majority of the United 

States Supreme Court dictates the law of the land. and lower courts are bound to follow it." 

6 
122 


KING-6430 with DISTILLERInsert offset folio 61 here 23645.061

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 7 of 60 

Campaignfor Southern Equalityv. Mississippi Dep 't of Human Sen·s., --- F.3d ---.2016 WL 

1306202. at* I 4 (S.D. Miss. Mar. 31. 2016) [hereinafter CSE ill]. 

Many celebrated the ruling as overdue. Others felt like change was happening too 

quickly. 3 And some citizens were concemcd enough to advocate new laws "to insulate state 

officials from legal risk if they do not obey the decision based on a religious objection.''4 Lyle 

Denniston, A Plea to Resist the Court on Same-Sex Marriage, SCOTUSblog. July 9. 2015. 

The Supreme Court's decision had taken pains to reaffirm religious rights. Its 

commitment to the fi·ee exercise of religion is important and must be quoted in full. 

Finally. it must be emphasized that religions, and those who adhere to religious 

doctrines. may continue to advocate with utmost. sincere conviction that. by 

divine precepts, same-sex marriage should not be condoned. The First 

Amendment ensures that religious organizations and persons are given proper 

protection as they seek to teach the principles that are so fulfilling and so central 

to their lives and faiths. and to their own deep aspirations to continue the family 

structure they have long revered .... ln turn. those who believe allowing samesex marriage is proper or indeed essential, whether as a matter of religious 

conviction or secular belief, may engage those who disagree with their view in an 

open and searching debate. The Constitution, however, does not permit the State 

to bar same-sex couples from marriage on the same terms as accorded to couples 

of the opposite sex. 

Obergefell, 135 S. Ct. at 2607. 

'"As the Obergefi!llmajority makes clear. the First Amendment must protect the rights of 

[religious] individuals. even when they are agents of government, to voice their personal 

objections -this, too. is an essential part of the conversation- but the doctrine of equal dignity 

prohibits them from acting on those objections, particularly in their official capacities. in a way 

that demeans or subordinates LGBT individuals ... :· Laurence H. Tribe. Equal Dignity: 

' It is fair to say that same-sex marriage rights went "from unthinkable to the law of the land in just a couple of 

decades." Nate Silver, Chunge Doesn't Csually Come This Fast. FiveThirtyEi~ht, June 26, 2015. 4 Sadly. this was predicted years ago. In 1999, four members of Congress expr~ssed concern that religious freedom 

legislation "would not simply act as a shield to protect religious liberty, but could also be used by some as a sword 

to attack the rights of many Americans, including unmarried couples, single parents. lesbians and gays.'' H.R. Rep. 

No. 106-219, at 41 (1999). ami/able at 1999 WL 462644. 

7 
123 


KING-6430 with DISTILLERInsert offset folio 62 here 23645.062

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 8 of 60 

Speaking Its Name, 129 Harv. L. Rev. F. 16 (Nov. 10. 2015). Obergelell's author, Justice 

Kennedy, had also reaffirmed this principle in Burwell v. Hobby Lobby Stores. ''[N]o person may 

be restricted or demeaned by government in exercising his or her religion. Yet neither may that 

same exercise unduly restrict other persons ... in protecting their own interests.•· 134 S. Ct. 

2751, 2786-87 (2014) (Kennedy, J., concurring). 

In the immediate wake of Obergefe/1. the Fifth Circuit issued a published opinion 

declaring that ·'Obergefell, in both its Fourteenth and First Amendment iterations. is the law of 

the land and. consequently, the law of this circuit and should not be taken lightly by actors within 

the jurisdiction of this court.'' Campaign for Southern Equality v. B1:vant, 791 F.3d 625, 627 (5th 

Cir. 2015) [hereinafter CSE II]. The court issued the mandate forthwith. !d. 

A few hours later, with this mandate in hand. this Court issued a Permanent Injunction 

and a Final Judgment enjoining enforcement of Mississippi"s statutory and constitutional samesex marriage ban. The Attorney General's Office soon advised Circuit Clerks to issue marriage 

licenses "to same-sex couples on the same terms and conditions accorded to couples of the 

opposite sex." In re 5'teve Womack, 2015 WL 4920123. at* I (Miss. A.G. July 17. 2015). 

In physics, every action has its equal and opposite reaction. In politics, every action has 

its predictable overreaction. Politicians reacted to the Hawaiian proceedings with DOMA and 

mini-DOMAs. Lawrence and Goodridge birthed the state constitutional amendments. And now 

Oberge.fellhas led to HB 1523. The next chapter of this back-and-forth has begun. 

B. House Bill1523 

Mississippi's highest elected officials were displeased with Obergefell. Governor Bryant 

stated that Obergejidl ·'usurped [states'] right to self-governance and has mandated that states 

must comply with federal marriage standards-standards that are out of step with the wishes of 

8 
124 


KING-6430 with DISTILLERInsert offset folio 63 here 23645.063

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 9 of 60 

many in the United States and that are cettainly out of step with the majority of Mississippians.''5 

Governor Phil Bryant, Governor B1:vant Issues Statement on Supreme Court Obergefell 

Decision, June 26,2015. 6 

Legislative leaders felt similarly. Lieutenant Governor Tate Reeves, who presides over 

the State Senate, called the decision an "overreach of the federal government.·· Geoff Pender. 

Lawmaker: State Could Stop Marriage Licenses Altogether, The Clarion-Ledger, June 26, 2015.7 

Speaker of the House Philip Gunn said Obergefell was "in direct conflict with God's design for 

marriage as set forth in the Bible. The threat of this decision to religious liberty is very clear." 

!d. 8 Representative Andy Gipson. Chairman of the House Judiciary B Committee, pledged to 

study whether Mississippi should stop issuing marriage licenses altogether.Jd. 9 

5 Governor Bryant's statement is only partially true. While stales have mostly been permitted to regulate marriage 

within their borders. the Supreme Court has stepped in to ensure that ··self-governance'' complies with equal 

protection. See Loring v. l"irginia. 388 U.S. 1, 12 (1967) ( .. Marriage is one of the basic civil rights of man. 

fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as 

the racial classifications embodied in these statutes ... is surely to deprive all the State's citizens of liberty without 

due process of law'"). 6 The Governor's remarks sounded familiar. In the mid-1950s, Governor J.P. Coleman said that Brown r. Board i!( 

Education '·represents an unwarranted invasion of the rights and powers of the states.'' Charles C. Bolton, William 

F. Winter and the New Mississippi: A Biography 97 (2013). ln 1962. before a joint session of the Mississippi 

Legislature- and to a "hero ·s reception··- Govemor Ross Barnett was lauded for invoking states' rights during the 

battle to integrate the University of Mississippi. Charles W. Eagles. The Price of Defiance: James Meredith and the 

!ntegration of Ole Miss 290-91 (2009) [hereinafter Price of Defiance]. 

'The State has objected to the Court's use of newspaper articles. In an Establishment Clause challenge. however. a 

District Court errs when it takes "insufficient account of the context in which the statute was enacted and the reasons 

for its passage." Sala=ar v. Buono, 559 U.S. 700.715 (2010). The Fifth Circuit agrees: "context is critical in 

assessing neutrality .. in this area of the law. Doe v. Beaumont lndep. Sch. Dist.. 240 F.3d 462,473 (5th Cir. 2001 ). 8 Using God as a justification for discrimination is nothing new. 1t was Govemor Barnett '>i\ ho proclaimed that "'[t]he 

Good Lord was the original segregationist He made us \Vhite, and he intended that we stay that way." Price of 

Defiance at 282. \Varping the image of God was not reserved to Mississippi politicians. In testimony before 

Congress during the debate on the Civil Rights Act of 1964, a Maryland businessman testified before a Senate 

committee that "God himself was the greatest segregationist of all time as is evident when he placed the Caucasians 

in Europe, the black people in Africa, the yellow people in the Orient and so tc>J1h." Linda C. McClain, The Civil 

Rights Act of 1964 and "Legislating Morality .. On Conscience, Prejudice. and Whether "State11·ap .. Can Change 

"Fo!Aouzvs ... 95 B.U. L. Rev. 891. 917 (20 15). He continued, ''Christ himself never lived an integrated life, and .. 

when he chose His close associates, they were all white. This doesn't mean that He didn't love all His creatures, but 

it does indicate that He didn't think we had to have all this togetherness in order to go to heaven.'' ld 9 The suggestion was (again) familiar. A few months after the Supreme Court's decision in Brown, Mississippians 

those \Vho were permitted to vote, that is~ ''voted two to one approving a constitutional amendment abolishing the 

state schools system if it integrated." Dennis J. MitchelL A New History of Mississippi 404 (2014). 

9 
125 


KING-6430 with DISTILLERInsert offset folio 64 here 23645.064

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 10 of 60 

The angst was not limited to the executive and legislative branches. Two Justices of the 

Mississippi Supreme Court also expressed their disgust with Obergefe1/.ln2014, a lesbian had 

petitioned that body for the right to divorce her wife in a Mississippi cowi. Czekala-Chatham v. 

State ex ref. Hood,--- So. 3d---, 2015 WL I 0985118 (Miss. Nov. 5. 2015). While her case was 

pending, the U.S. Supreme Couii handed-down Obergefell. Although a majority of the 

Mississippi Supreme Court concluded that Obergeji!ll resolved her case in her favor, Justices 

Dickinson and Coleman argued that the Obergefel/ Court had legislated from the bench and 

overstepped its authority.Jd. at *3 (Dickinson, J.. dissenting). They opined that "state courts are 

not required to recognize as legitimate legal authority a Supreme Court decision that is in no way 

a constitutional interpretation.'' and claimed ·'a duty to examine those decisions to make sure 

they indeed are constitutional interpretations, rather than ... an exercise in judicial will." !d. at 

*4, *6. 10 Oberge(e!l was·'[ w ]orthy only to be disobeyed:' they said.Jd. at *5. 

Mississippi's legislators formally responded to Obergefell in the next legislative 

session. 11 Speaker Gunn drafted and introduced HB J 523, the ·'Protecting Freedom of 

Conscience from Government Discrimination Act.'' 12 The bill overwhelmingly passed both 

chambers, and the Governor signed it into law on April 5. 2016. It goes into effect on July I. 

HB 1523's meaning is contested. A layperson reading about the bill might conclude that 

it gives a green light to discrimination and prevents accountability for discriminatory acts. 

10 But see James v. City qf Boise. Idaho. 136 S. Ct. 685. 686 (20 16) (per curiam) ("The Idaho Supreme CoUit. like 

any other state or federal court. is bound by this Court's interpretation of federal law. The state cou11 erred in 

concluding otherwise.'} 11 This had happened before in the religious liberty context. In 1994. '·[o]n a wave of public sentiment and 

indignation over the treatment of a Principal ... who allowed students to begin each school day with a prayer over 

the intercom. the Mississippi legislature passed the School Prayer Statute at issue here." Ingebretsen r. Jackson Pub. 

Sch. Dis/ .. 88 F.3d 274.277 (5th Cir. 1996). The statute was unconstitutional. Id 

"'"After the Supreme Court decision in Obergefell (v. Hodges). it became apparent that there would be a head-on 

collision between religious convictions about gay marriage and the right to gay marriage created by the decision,' 

[Speaker] Gunn said.'' Adam Ganucheau, ,\fississippi's 'Religious Freedom· La1l' Drafted Out ~{State, Mississippi 

Today. May 17. 2016. One commentator concluded that "HB 1523 was hatched" after the issuance of this Court's 

Pennanent Injunction. Sid Salter, Consritutional Ship has Sailed on Same-Sex Marriage, The Clarion-Ledger, May 

8, 2016. "Clearly, House Bi111523 seeks to work around the federal Obergefe/1 decision at the state level.'' !d. 

10 
126 


KING-6430 with DISTILLERInsert offset folio 65 here 23645.065

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 11 of 60 

Arielle Dreher. Hundreds Rally to Repeal HB 1523. State Faces Deadline Today Before Lawsuit. 

Jackson Free Press. May 2. 2016 (quoting Chad Griffin. President of the Human Rights 

Campaign, as saying. "it's sweeping and allows almost any individual or organization to justify 

discrimination against LGBT people, against single mothers and against unwed couples."). 

Someone else reading the same miicle might conclude that HB 1523 simply "reinforces" the 

First Amendment. I d. (quoting Speaker Gunn as saying the gay community ·'can do the same 

things that they could before"). So any discussion should begin with the plain text of the bill. 

HB 1523 enumerates three "sincerely held religious beliefs or moral convictions" entitled 

to special legal protection. They are. 

(a) Marriage is or should be recognized as the union of one man and one woman; 

(b) Sexual relations are properly reserved to such a marriage; and 

(c) Male (man) or female (woman) refer to an individual's immutable biological 

sex as objectively determined by anatomy and genetics at time of bitih. 

HB 1523 § 2. These will be referred to as the·'§ 2" beliefs. 

The bill then says that the State of Mississippi will not "discriminate" against persons 

who act pursuant to a§ 2 belief. !d.§§ 3-4.JJ For example. if a small business owner declines to 

provide goods or services for a same-sex wedding because it would violate his or her § 2 beliefs. 

HB 1523 allows the business to decline without fear of State ''discrimination." 

"Discrimination" is defined broadly. It covers consequences in the realm of taxation, 

employment, benefits, court proceedings, licenses. financial grants, and so on. In other words, 

the State of Mississippi will not tax you. penalize you. fire you, deny you a contract. withhold a 

diploma or license. modify a custody agreement. or retaliate against you. among many other 

HB 1523 § 9(2)-(3) defines ··state government" to include private persons, corporations. and other legal entities. 

II 
127 


KING-6430 with DISTILLERInsert offset folio 66 here 23645.066

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 12 of 60 

enumerated things, for your§ 2 belief's. I d. 1

" An organization or person who acts on a § 2 belief 

is essentially immune from State punishment. 15 

The Governor's signing statement recognized that consequences under federal law are 

unchanged. States ··Jack authority to nullify a federal right or cause of action they believe is 

inconsistent with their local policies." Jla.n1'0od \', Drown, 556 U.S. 729, 736 (2009). 

Parts of the law provide fodder for both its opponents and its proponents. One section of 

HB 1523 guarantees that the State will not take adverse action against a religious organization 

that declines to solemnize a wedding because of a § 2 belief.Jd. § 3. There is nothing new or 

controversial about that section. Religious organizations already have that right under the Free 

Exercise Clause of the First Amendment. 

Citizens also enjoy substantial religious rights under existing state law. The Mississippi 

Constitution ensures that "'the free enjoyment of all religious sentiments and the different modes 

of worship shall be held sacred," and ''no preference shall be given by law to any religious sect 

or mode ofworship.'' 16 Miss. Const., § 18. In addition, a 20141aw called the "Mississippi 

Religious Freedom Restoration Act" (RFRA) states that the government "may substantially 

burden a person's exercise of religion only if it demonstrates that application of the burden to the 

person: (i) Is in furtherance of a compelling governmental interest; and (ii) Is the least restrictive 

means of furthering that compelling governmental interest.·• Miss. Code Ann. § 11-61-1 (5)(b) 

(emphasis added). HB 1523 does not change either of these laws. 17 

14 This is more expansive than other anti-discrimination laws, such as Title VII or Title IX. 15 The broad immunity provision may violate the Mississippi Constitution. which provides that "every person for an 

injury done him in his lands, goods. person. or reputation, shall have remedy by due course of law. and right and 

justice shall be administered without sale, denial. or delay." Miss. Canst.§ 24. 

"'Despite the inclusive language just quoted. § 18 of the Mississippi Constitution then says that "[t]he rights hereby 

secured shall not be construed ... to exclude the Holy Bible from use in any public school." 17 Mississippi's RFRA is also part of the political back-and-forth on LGBT rights. "State·based RFRAs were passed 

to preemptively provide religious exemptions to people in advance of a Supreme Court ruling on gay marriage, 

[Professor Doug] NeJaime said.'' Alana Semuels, Should Adoption Agencies Be .·11/owed to Discriminate Against 

12 
128 


KING-6430 with DISTILLERInsert offset folio 67 here 23645.067

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 13 of 60 

We return to HB 1523. Several parts ofthe bill are unclear. One says the State will not 

take action against foster or adoptive parents who intend to raise a foster or adoptive child in 

accordance with§ 2 beliefs. HB 1523 § 3(3). It is not obvious how the State would respond if the 

child in urgent need of placement was a 14-year-old lesbian. 

Another section discusses a professional's right to refuse to participate in "psychological, 

counseling. or fertility services .. because of a§ 2 belief. !d.§ 3(4). But some professions· ethical 

rules prohibit .. engag[ing] in discrimination against prospective or current clients ... based on .. 

. gender. gender identity, sexual orientation. [and] marital/ partnership status,•· to name a few 

categories. American Counseling Association, Code of Ethics § C.5 (20 14). Under HB 1523, 

though. a public university's faculty must confer a degree upon, and the State must license, a 

person who refuses to abide by her chosen profession ·s Code of Ethics. 18 

Section 3(8)(a) of the law. in contrast. is crystal clear. It says that a government employee 

with authority to issue marriage licenses may recuse herself from that duty if it would violate one 

of her§ 2 beliefs. HB 1523 § 3(8)(a). The employee must provide prior written notice to the 

State Registrar of Vital Records and be prepared to ''take all necessary steps to ensure that the 

authorization and licensing of any legally valid marriage is not impeded or delayed as a result of 

any recusal.'' !d. The State· s attorneys agree that this section ·'effectively amends Mississippi 

County Circuit Clerks' Office's man·iage licensing obligations under state law by specifying 

conditions under which a clerk's employee may recuse himself or herself from authorizing or 

licensing marriages ... Docket No. 41. at 6. in Cause No. 3: 14-CV-818. 

Cay Parenrs?. The Atlantic, Sept. 23, 2015. Mississippi's RFRi\ fits this timeline perfectly. In summer 2013. the 

Supreme Comi"s ruling in lfnited ~)'tales v. 1Vindsor foreshadowed an imminent victory for same-sex marriage. A 

few months later. Mississippi's elected officials enacted the State RFRA. 18 RelatedJy, in other states, citizens have successfully sued so-called ·•gay conversion'' therapists for consumer fraud 

and professional malpractice. See Olga Khazan. The End ~f Cay Conversion Therapy, The Atlantic, June 26, 2015. 

HB 1523 § 4 would bar a Mississippi court ft·om enforcing such a verdict. 

13 
129 


KING-6430 with DISTILLERInsert offset folio 68 here 23645.068

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 14 of 60 

The significance of this section is in the eye of the beholder. The plaintiffs argue that it 

facilitates discrimination against LGBT Mississippians by encouraging clerks to opt-out of 

serving same-sex couples. 

HB 1523's defenders respond that the bill protects against discrimination by ensuring 

that clerks do not have to violate their religious beliefs. When Senator .fenifer Branning 

shepherded the bill through the Senate floor debate. she argued that the legislation actually l!fis a 

burden imposed by Oberge{ell. 19 H.B. 1523, Debate on the Floor of the Mississippi Senate. at 

7:02 (Mar. 31. 20 16) (statement of Sen .. lenifer Branning) [hereinafter Senate Floor Debate]. In 

her view. HB 1523 is ''balancing" legislation allowing those who oppose same-sex marriage to 

continue to perform their jobs with a "clear conscience." while protecting the rights of same-sex 

couples to receive a marriage license from another clerk. Jd. at 26:55, 32:27.20 

C. These Suits 

On June 3. 2016. Rev. Dr. Barber, Rev. Burnett Bailey. Day. Boyette. Rev. Fortenberry. 

Dr. Glisson, Johnson. Triplett. Taylor, Mangum-Dear, Mangum. and JGMCC filed the first suit 

encompassed by this Order. See Docket No. I, in Barber. They asserted Establishment and Equal 

Protection claims against Governor Bryant, General Hood, Executive Director Davis. and 

Registrar Moulder. !d. They requested a declaratory judgment that HB 1523 is unconstitutional 

on its face, as well as preliminary and permanent injunctive relief enjoining its enforcement. 

'"Mississippi docs not have formal legislative history; however. the Mississippi College School of Law's 

Legislative History Project archives the floor debate for bills that pass. The HB !523 videos arc available at 

http://law.mc.cduflegislature/bill_ details.php?id~4621&session~20 16. Unofficial transcripts were also introduced 

into evidence. See Docket No. 33-14. in CSE 11'. 20 These arguments are apparently in~reasingly common. SCe Douglas Nejaime & Reva B. Siegel, Conscience Wars: 

Complicity-Based Conscience Claims in Religion and Politics. 124 Yale L.J. 2516, 2560-61 (20 15) (arguing that 

proponents of traditional morality •·now emphasize different justifications for excluding same-sex couples fi·om 

marriage~- for example, that marriage is about biological procreation or that preserving 'traditional marriage' 

protects religious liberty. At the same time, in anticipation of the possibility of defeat, they argue for exemptions 

from laws that recognize same*sex marriage. In so doing, they shift from speaking as a majority enforcing 

customary morality to speaking as a minority seeking exemptions based on religious identity.''). 

14 
130 


KING-6430 with DISTILLERInsert offset folio 69 here 23645.069

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 15 of 60 

CSE and Rev. Dr. Hrostowski sued the same defendants on June I 0. 2016. See Docket 

No. I. in CSE IV. They asserted an Establishment Clause claim and sought the same relief as the 

Barber plaintiffs. I d. 

The various plaintiffs conferred and moved to consolidate. The State was prepared to 

argue Barber. but objected to consolidation to avoid an abbreviated briefing schedule and a 

hearing in CSE IV. See Docket No. 22. in Barber. During a status conference. the Court heard the 

parties' positions and granted the State its requested response deadline. The Court also delayed 

the motion hearing- which was conve1ted into a joint hearing- by two days. The State renewed 

its objection to the consolidated hearing and was overruled. These reasons follow. 

The State essentially argued that there were too many HB 1523-related lawsuits- there 

are four- to fully prepare for a hearing in CSE IV. Jt entered into the record a Mississippi Today 

article in which General Hood said. "•J and over half of our lawyers in the Civil Litigation 

Division are working overtime and weekends attempting to prepare for the hearings .... Docket 

No. 22-2. in Barber. General Hood added that budget cuts prevented him from hiring an expe1t 

to prepare "for the highly specialized area of the law seldom litigated in Mississippi-- the 

Establishment Clause:· Jd. (ellipses omitted). 

The first hurdle for the State is the substantial overlap in subject matter between Barber 

and CSE IV. The similar briefing suggests that little additional work was required to defend CSE 

IV. Barber. in fact. has a greater number of substantive claims than CSE IV. Having prepared for 

the more comprehensive hearing, it is difficult for the State to object to the narrower one. 

The second. more significant problem with the State's argument is the utter predictability 

of these lawsuits. The media started reporting the likelihood of litigation on April 5, the day the 

Governor signed HB 1523 into law. See. e.g., Ariclle Dreher. 'Totallrifi·ingement': Governor 

15 
131 


KING-6430 with DISTILLERInsert offset folio 70 here 23645.070

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 16 of 60 

Signs JIB 1523 Q;·er Protests of Business Leaders. Ci1izens. Jackson Free Press, Apr. 5, 2016 

( .. 'You will see several lawsuits filed before it becomes law if the governor signs it,'" one 

attorney said): Caray Grace, Local Residents and City Leaders React to House Bi!ll523, 

WLOX. Apr. 5, 2016 (''"the lawyers were already starting to draft up lawsuits so that as soon as 

he signed it, they could start filing them. • said [Molly] Kester.''). 

General Hood apparently knew these lawsuits were coming as early as April 5, when he 

said he would make .. case-by-case .. decisions on whether to defend the lawsuits. and warned that 

the bill doesn't override federal or constitutional rights. Legal Pressure May Be Aheadfor 

Mississippi Law Denying Service to Gays, Chicago Tribune. Apr. 5. 2016. 

The media even telegraphed the exact Establishment Clause arguments the plaintiffs 

eventually asserted. In early April, the press reported that I 0 law professors from across the 

country released a memorandum outlining several ways in which HB 1523 violates the 

Establishment Clause. See Sierra Mannie, Will Mississippi ·s "Religious Fl·eedom" Act Impact 

Children in Public and Primte Schools.?. The Hechinger Report. Apr. 8, 2016. In May. Jackson 

attorney Will Manuel, a partner at Bradley LLP, said, ... [b]y only endorsing certain religious 

thought. I believe it is in violation of the Establishment Clause of the First Amendment which 

prohibits government from establishing or only protecting one religion. That should be a fairly 

clear cut constitutional challenge." Ted Ca11er. Feds Unlike(v to lp;nore Mississippi's HB1523. 

La11:vers Say, Mississippi Business Journal, May 26. 2016; see also Arielle Dreher, JIB 1523: 

Bad.for the Business Sector, Jackson Free Press. June 8, 2016 (noting other legal concerns). 

Perhaps the State· s best argument against a hearing in CSE IV was that it would be 

unprepared to cross-examine religion experts because it did not have time to find its own 

16 
132 


KING-6430 with DISTILLERInsert offset folio 71 here 23645.071

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 17 of 60 

expert.21 Its objection fell flat when its attorneys filed the article in which General Hood said that 

budget cuts caused the lack of expert assistance.22 If budget cuts explain the State's lack of 

expert assistance. no extension of time could have helped it prepare for a hearing. 

For these reasons. the hearings were consolidated. Now. having considered the evidence 

and heard oral argument, the motions for preliminary injunction have been consolidated into this 

Order. The cases remain their separate identities pending further motion practice. 

That brings us to the State's initial legal arguments. 

III. Threshold Questions 

A. Standing 

The State first challenges the plaintiffs' capacity to bring these suits. 

The United States Constitution limits the jurisdiction offederal courts to actual cases and 

controversies. U.S. Const. art. Ill,§ 2. ''No principle is more fundamental to the judiciary's 

proper role in our system of government than the constitutional limitation offederal-couti 

jurisdiction to actual cases or controversies:· Raines v. Byrd. 52! U.S. 811, 818 (1997) 

(quotation marks and citation omitted). ''The fundamental aspect of standing is that it focuses on 

the party seeking to get his complaint before a federal court and not on the issues he wishes to 

have adjudicated.'' Flast v. Cohen, 392 U.S. 83, 99 ( 1968). 

As the party seeking to invoke this Court's jurisdiction. the plaintiffs must demonstrate 

all three elements of standing: ( 1) an injury in fact that is concrete and particularized as well as 

imminent or actual; (2) a causal connection between the injury and the defendant's conduct: and 

The Court has sought to understand what kind and amount of evidence would show a forbidden religious 

preference. In this case, it finds the plain language ofHB 1523 and basic knowledge of local religious beliefs to be 

sufficient. Today's outcome is infonned by but does not tum on the expe11 testimony heard in CSE n·. 02 It also weakens the State's objection to the Court's use of newspaper articles. 

17 
133 


KING-6430 with DISTILLERInsert offset folio 72 here 23645.072

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 18 of 60 

(3) that a favorable decision is likely to redress the injury. Lujan v. Defenders (!fWi/dl!le, 504 

u.s. 555, 560-61 (1992). 

In a standing analysis, the court ··must accept as true all material allegations of the 

complaint. and must construe the complaint in favor of the complaining pat1y.'' Warth v. Seldin. 

422 U.S. 490, 501-02 (1975). Standing is not handed out in gross. CSE III. 2016 WL 1306202, at 

*2. A case with multiple plaintiffs can move forward as long as one plaintiff has standing as to 

each claim. CSE I. 64 F. Supp. 3d at 916. 

1. Injury in Fact 

To establish an injury in fact, the plaintiffs must show ·'an invasion of a legally protected 

interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or 

hypothetical.'" Lujan, 504 U.S. at 560 (quotation marks and citation omitted). An injury is 

particularized if it "affect[ s] the plaintiff in a personal and individual way:· !d. at 560 n.l. An 

injury is concrete when it is ·•real. not abstract." Spokeo. Inc. v. Robins, 136 S. Ct. 1540, 1556 

(2016) (quotation marks and citation omitted). Intangible injuries can satisfy the concreteness 

requirement. Id. at 9. A plaintiff must demonstrate "that he has sustained or is immediately in 

danger of sustaining some direct injury ... City of Los Angeles v. Lyons, 461 U.S. 95, I 01 (1983) 

(quotation marks and citations omitted). 

a. Equal Protection Injuries 

The Barber plaintiffs in category two- i.e .. the LGBT plaintiffs and Dr. Glisson- allege 

that HB 1523 violates their rights under the Equal Protection Clause of the Fourteenth 

Amendment.23 Claims under the Equal Protection Clause can include both tangible and 

intangible injuries. As noted in Heckler v. ,l,fatthews, 

" In discussing the Equal Protection claim, references to LGBT citizens should also be read to include unmarriedbut-sexually-active citizens. The latter group may have been a collateral consequence of HB 1523. 

18 
134 


KING-6430 with DISTILLERInsert offset folio 73 here 23645.073

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 19 of 60 

discrimination itself. by perpetuating archaic and stereotypic notions or by 

stigmatizing members of the disfavored group as innately inferior and therefore as 

less worthy participants in the political community, can cause serious 

noneconomic injuries to those persons who are personally denied equal treatment 

solely because of their membership in a disfavored group. 

465 U.S. 728. 739-40 (1984) (quotation marks and citation omitted). "Stigmatic injury stemming 

from discriminatory treatment is sufficient to satisfy standing's injury requirement if the plaintiff 

identifies some concrete interest with respect to which he or she is personally subject to 

discriminatory treatment and that interest independently satisfies the causation requirement of 

standing doctrine." CSE I. 64 F. Supp. 3d at 917 (quotation marks and citation omitted). 

The State first challenges standing on the basis that the plaintiffs' injuries are speculative 

and not imminent. arguing that the plaintiffs have not alleged the denial of any right or benefit as 

a result of liB 1523. It points to Clapper v. Anmes1y International. USA. which held that 

"[a]lthough imminence is concededly a somewhat elastic concept, it cannot be stretched beyond 

its purpose, which is to ensure that the alleged injury is not too speculative for Article Ill 

purposes-that the injury is cerlain~y impending." 133 S. Ct. 1138, 1147 (2013) (quotation 

marks and citation omitted). 

This language. however. supports that the plaintiffs do have imminent injuries. If it goes 

into effect on July 1, plaintiffs say. HB 1523 will subject them to a wide range of arbitrary 

denials of service at the hands of public employees and private businesses. 

The plaintiffs also say that HB 1523 will limit the protections LGBT persons currently 

have under state, county, city. and public school anti-discrimination policies. In the City of 

Jackson. for example. a municipal ordinance provides protection from discrimination on the 

basis of religion. sexual orientation. and gender identity, among other characteristics. Docket No. 

32-17, in Barber. This ordinance protects several of the plaintiffs. !d. The plaintiffs then point to 

19 
135 


KING-6430 with DISTILLERInsert offset folio 74 here 23645.074

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 20 of 60 

University of Southern Mississippi's (USM) anti-discrimination policy, which guarantees equal 

access to "educational. programmatic and employment opportunities without regard to .. religion. 

sexual orientation, or gender identity. Docket No. 32-18. in Barber. If HB 1523 goes into effect 

USM's policy cannot be fully enforced. USM employees who invoke a§ 2 belief will enjoy 

enhanced protection to decline to serve others on the basis of sexual orientation. and USM will 

not be able to discipline those employees who violate its internal anti-discrimination policy.24 

In this context the imminent injury to the plaintiffs. other LGBT persons, and unmarried 

persons is exactly the same as the injury recognized by the Supreme Court in Romer. In striking 

down an amendment to Colorado's constitution. the Court found that: 

Amendment 2 bars homosexuals from securing protection against the injuries that 

these public accommodations laws address. That in itself is a severe consequence, 

but there is more. Amendment 2, in addition. nullifies specific legal protections 

for this targeted class in all transactions .... Not confined to the private sphere, 

Amendment 2 also operates to repeal and forbid laws or policies providing 

specific protection for gays or lesbians from discrimination by every level of 

Colorado government. 

517U.S.at629. 

A closer analogue is difficult to imagine. As in Romer, HB 1523 ·'withdraws from 

homosexuals, [transgender. and unmarried-but-sexually-active persons.] but no others, specilic 

legal protection from the injuries caused by discrimination, and it forbids the reinstatement of 

these laws and policies:· !d. at 627. If individuals had standing to file Romer before Amendment 

2 went into effect these plaintiffs may cctiainly do the same. 

The State's argument overlooks the fundamental injurious nature ofHB 1523 the 

establishment of a broad-based system by which LGBT persons and unmatTied persons can be 

subjected to differential treatment based solely on their status. This type of differential treatment 

'

4 Imagine that two USM students, who are a gay couple. walk into the cafeteria but arc refused service because of 

the worker's religious views. Could that employee be disciplined tor refusing service? It is not clear what remedy 

they would have to remove the sting of humiliation. 

20 
136 


KING-6430 with DISTILLERInsert offset folio 75 here 23645.075

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 21 of 60 

is the hallmark of what is prohibited by the Fourteenth Amendment. See New York City Transit 

Aut h. 1'. Beazer, 440 U.S. 568. 587 ( 1979) ("'The [Equal Protection] Clause announces a 

fundamental principle: the State must govern impartially."). To put it plainly. the plaintiffs' 

injuries are ··certainly impending" today, and without Court intervention, the plaintiffs will suffer 

actual injuries. Clapper. 133 S. Ct. at 1147. 

The State then argues that the plaintiffs lack standing because they are not the ·'objects'' 

of HB 1523. The argument comes from Lujan's statement that "standing depends considerably 

upon whether the plaintiff is himself an object of the" government's action or inaction at issue. 

Lujan, 504 U.S. at 561. The true objects of the law. the State claims, are those persons who want 

to freely exercise a § 2 belief. Docket No. 30, at 18, in Barber. 

The Court is not persuaded. A robust record shows that HB 1523 was intended to benefit 

some citizens at the expense of LGBT and unmarried citizens. At oral argument. the State 

admitted that HB 1523 was passed in direct response to Ober ... f!;e.fe/1, stating. "after Obergefell, 

citizens who hold the beliefs that are protected by 1523 were effectively told by the U.S. 

Supreme Court, Your belie(.5 are garbage." Transcript of Hearing on Motion for Preliminary 

Injunction at 324. Barber v. Bryant. No. 3: 16-CV-417 (S.D. Miss. June 24. 2016) [hereinafter Tr. 

of .June 24]. 

It is therefore difficult to accept the State's implausible assertion that HB 1523 was 

intended to protect certain religious libe1iies and simultaneously ignore that the bill was passed 

because same-sex marriage was legalized last summer. See Romer. 517 U.S. at 626. 

Members of the LGBT community and persons like Dr. Glisson will suffer a concrete 

and pa1iicular injury as a result ofHB 1523. Part of the injury is stigmatic. see CSE I, 64 F. 

Supp. 3d at 917, but that stigmatic injury is linked to the tangible rights that will be taken away 

21 
137 


KING-6430 with DISTILLERInsert offset folio 76 here 23645.076

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 22 of 60 

on .July l, including the tangible rights Obergefelf extended. There are almost endless 

explanations for how HB 1523 condones discrimination against the LGBT community, but in its 

simplest terms it denies LGBT citizens equal protection under the Jaw. Thus, those plaintiffs who 

are members of the LGBT community. as well as Dr. Glisson, have demonstrated an injury in 

fact sufficient to bring their Equal Protection claim. 

b. Establishment Clause Injuries 

All plaintiffs have asserted Establishment Clause claims. 

In Establishment Clause actions, the injury in fact requirement may vary from other types 

of cases. See Doe v. Tangipahoa Parish Sch. Bd.. 4 73 F.3d 188. 194 (5th Cir. 2006). ·The 

concept of injury for standing purposes is particularly elusive in Establishment Clause cases.'' ld. 

Plaintiffs can demonstrate "standing based on the direct harm of what is claimed to be an 

establishment of religion" or "on the ground that they have incurred a cost or been denied a 

benefit on account of their religion." Arizona Christian Sch. Tuition Org. v. Winn. 563 U.S. 125, 

129-30 (20 ll ). Courts also recognize that taxpayers have standing to challenge direct 

government expenditures that violate the Establishment Clause./d. at 138-39: see F!ast, 392 U.S. 

at 106. The Supreme Court has found standing in a wide variety of Establishment Clause cases 

"even though nothing was affected but the religious or irreligious sentiments of the plaintiffs:· 

Catholic League for Religious & Civil Rights v. City & Cnty. C!lSan Francisco. 624 F.3d 1043, 

1049-50 (9th Cir. 2010) (en bane) (collecting cases). 

In Crofi v. Governor a_( Texas, the Fifth Circuit concluded that a citizen had standing to 

challenge a public school's daily moment of silence because his children were enrolled in the 

school and were required to observe the moment of silence. 562 F.3d 735, 746 (5th Cir. 2009) 

22 
138 


KING-6430 with DISTILLERInsert offset folio 77 here 23645.077

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 23 of 60 

[hereinafter Croft 1). This injury was sufficient because the plaintiff and his family demonstrated 

that they were exposed to and injured by the mandatory moment of silence. !d. at 746-47.25 

In our case, the State contends that the plaintiffs" alleged non-economic injuries are 

insufficiently particular and concrete. It cites Valley Forge Christian College v. Americans 

United(or Separation o.fChurch and State. vvhich found that: 

[the plaintiffs] fail to identify any personal injury suffered by them as a 

consequence of the alleged constitutional error. other than the psychological 

consequence presumably produced by the observation of conduct with which one 

disagrees. That is not an injury sufficient to confer standing under Art. Ill. even 

though that disagreement is phrased in constitutional terms. 

454 U.S. 464. 485-86 (1982). 

In Valley Forge, an organization and four of its employees who lived in the Washington 

D.C. area challenged the constitutionality of a land conveyance from a government agency to a 

religious-affiliated education program in Pennsylvania. !d. at 468-69. The plaintiffs had learned 

of the land conveyance from a press release. !d. at 469. They merely observed the alleged 

constitutional violation from out-of-state. 

The facts in the present case are quite different. Here. the plaintiffs are 13 individuals 

who reside in Mississippi, a Mississippi church. and an advocacy organization with members in 

Mississippi. The plaintiffs may have become aware of HB I 523 from news, friends. or social 

media. but regardless of how they learned of the legislation. it is set to become the law of their 

state on July 1. It will undeniably impact their lives. The enactment of HB 1523 is much more 

than a "psychological consequence" with which they disagree, it is allegedly an endorsement and 

elevation by their state government of specific religious beliefs over theirs and all others. 

"The Fifth Circuit distinguished C'rofi from Doe 1', Tangipahoa Parish School Board, where it had declined to find 

standing in a case challenging prayers at school board meetings because the plaintiffs had never attended a school 

board meeting. 

23 
139 


KING-6430 with DISTILLERInsert offset folio 78 here 23645.078

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 24 of 60 

A more applicable case is Catholic League. There, the plaintiffs included a Catholic civil 

rights organization and devout Catholics who lived in San Francisco. 624 F.3d at l 048. They 

sued over a municipal resolution that expressly denounced Catholicism and the Catholic 

Church· s beliefs on same-sex couples. !d. at 104 7. The appellate court found that they had 

standing to bring such a case against their local govemment. 

Similarly, today·s individual plaintiffs have attested that they are citizens and residents of 

Mississippi, they disagree with the religious beliefs elevated by HB 1523. HB 1523 conveys the 

State's disapproval and diminution of their own deeply held religious beliefs, HB 1523 sends a 

message that they are not welcome in their political community. and HB 1523 sends a message 

that the state govemment is unwilling to protect them. See. e.g, Docket Nos. 32-2; 32-3; 32-5 

(all in Barber). 

Plaintiff Taylor, for example. is '·a sixth-generation Mississippian'' and •·former Navy 

combat veteran:· Docket No. 32-8, in Barber. He is also a gay man engaged to be married next 

year. !d. Taylor thinks HB 1523 is hostile toward his religious values and targets LGBT persons. 

!d. 

Dr. Glisson describes herself as ·'a member of the Southern Baptist Church co-founded 

by my grandparents" who has ·'studied and reflected upon my faith choice almost all my life.'' 

Docket No. 32-6. in Barber. ""I am convinced that the heart of the Gospel is unconditional love. 

To condemn the presence of God in another human being, especially using faith claims or 

scripture to do so, is \\Tong and violates all of the tenets of my Christian faith." !d. 

Dorothy Triplett explained her religious objections in detail. ''I am a Christian, and 

nowhere in scripture does Jesus the Christ condemn homosexuality, .. she said. Docket No. 32-9, 

in Barber. ·'He instructed us to love our neighbors as ourselves. In St. Paul's Letter to the 

24 
140 


KING-6430 with DISTILLERInsert offset folio 79 here 23645.079

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 25 of 60 

Galatians 3:28: New Revised Standard Version (NRSV): 'There is no longer Jew or Greek, there 

is no longer slave or free. there is no longer male or female; for all of you are one in Christ 

Jesus .. ,. !d. 

Based on their allegations and testimony. each individual plaintiff has adequately alleged 

cognizable injuries under the Establishment Clause. The "sufficiently concrete injur[ies]" here 

are the psychological consequences stemming from the plaintiffs' ·'exclusion or denigration on a 

religious basis within the political community ... Catholic League, 624 F.3d at l 052; see A wad. 

670 F.3d at 1123. 

Their injuries are also imminent. HB 1523 is set to become Jaw on July 1. "There is no 

need for [the plaintitTs] to wait for actual implementation of the statute and actual violations of 

[their] rights under the First Amendment where the statute" violates the Establishment Clause. 

fngebretson v. Jackson Public Sch. Dist.. 88 F.3d 274. 278 (5th Cir. 1996). 

2. Causation 

The State next argues that the plaintiffs have not shown that their injuries have a causal 

connection to the defendants· conduct. It cites Southern Christian Leadership Conference v. 

Supreme Court of Louisiana for the proposition that an injury cannot be the result of a third 

party's independent action, and instead must be traceable to the named parties. 252 F.3d 781. 

788 (5th Cir. 2001). The contention here is that any injuries will be caused by third parties -like 

a clerk who refuses to promptly issue a marriage license to a same-sex couple and therefore 

that the plaintiffs should sue those third patties. 

The argument is unpersuasive. On July 1, the plaintitTs will be injured by the statesponsored endorsement of a set of religious beliefs over all others. See Santa Fe, 530 US at 

302; A wad v. Ziriax, 754 F. Supp. 2d 1298, 1304 (W .D. Okla. 201 0). Regardless of any third25 
141 


KING-6430 with DISTILLERInsert offset folio 80 here 23645.080

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 26 of 60 

party conduct, the bill creates a statewide two-tiered system that elevates heterosexual citizens 

and demeans LGBT citizens. The plaintiffs' injuries are therefore caused by the State- and 

specifically caused by the Governor who signed HB 1523 bill into law- and will at a minimum 

be enforced by officials like Davis and Moulder. 

In addition. in similar cases under the Establishment and Equal Protection Clauses. the 

Supreme Court has found a state's governor to be a proper defendant for the causal connection 

requirement of standing. E.g .. Wallace v . .Jaffi·ee, 472 U.S. 38 (1985); Romer, 517 U.S. at 620. 

Accordingly. the plaintiffs have demonstrated that there is a causal connection between 

their injuries and the defendants· conduct. 

3. Redressability 

The final prong of standing requires the plaintiffs to demonstrate that a favorable judicial 

decision will redress their grievances. Lujan. 504 U.S. at 561. The State argues that "Plaintiffs 

would still be facing their same alleged injury tomorrow if the Court preliminary enjoins the 

named Defendants today." Docket No. 30, at 24. in Barber. It fails to support this claim vvith any 

further argument or facts. 

''[ W]hen the right invoked is that of equal treatment. the appropriate remedy is a mandate 

of equal treatment. a result that can be accomplished by withdrawal of benefits from the favored 

class as well as by extension of benefits to the excluded class:· Heckler, 465 U.S. at 740 

(quotation marks and citation omitted). "'By declaring the [statute] unconstitutional. the official 

act of the government becomes null and void." Catholic League. 624 F.3d at I 053. 

Here. the harm done by HB 1523 would be halted if the statute is enjoined. Nothing in 

the plaintiffs' briefs, oral argument. or testimony indicates that they expect a favorable ruling to 

change the hemts and minds of Mississippians opposed to same-sex marriage, transgcnder 

26 
142 


KING-6430 with DISTILLERInsert offset folio 81 here 23645.081

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 27 of 60 

equality. or sex before marriage. They simply ask the Court to enjoin the enforcement of a state 

law that both permits arbitrary discrimination based on those characteristics and endorses the 

majority's favored religious beliefs. That is squarely within the Court's ability. See A wad v. 

Ziriax. 670 F.3d llll. 1119 (lOth Cir. 2012). 

"Even more important. a declaratory judgment would communicate to the people of the 

plaintiffs' community that their government is constitutionally prohibited from condemning the 

plaintiffs' religion, and that any such condemnation is itself to be condemned." Catholic League, 

624 F.3d at 1053. 

The Court concludes that the individual plaintiffs have standing to bring these claims. 

4. Associational Standing 

In some instances, organizations may bring suit on behalf of their members. To establish 

associational standing. the organization must show that:(!) its members would have standing to 

sue on their own behalf: (2) the interests it seeks to safeguard are germane to the organization's 

purpose: and (3) neither the claim asserted nor the requested relief necessitate the participation of 

individual members. Hunt v. FVashington Stale Apple Advertising Comm 'n., 432 U.S. 333. 343 

(1977). 

JGMCC seeks associational standing as a church with many LGBT members and a 

community service ministry that promotes LGBT+ equality. Because members of the church 

have standing to bring suit on their own behalf- at least two of its members are individual 

plaintiffs the first element of associational standing is satisfied. Ensuring that its members are 

not discriminated against on the basis of sexual orientation. gender identity, or religion is 

undoubtedly germane to its purpose. And JGMCC's facial challenge does not require the 

participation of individual members. JGMCC has associational standing. 

27 
143 


KING-6430 with DISTILLERInsert offset folio 82 here 23645.082

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 28 of 60 

The same is true for CSE. That organization also has a member participating in this 

lawsuit. is aligned with the arguments and relief sought in this suit. and need not have additional 

members to assett its particular cause of action. It has associational standing. Accord CSE I. 64 

F. Supp. 3d at 918; CSE lii, 2016 WL 1306202. at * 11. 

B. Ex Parte Young 

The next issue is whether these defendants are properly named in this suit. 

1. Legal Standard 

Under the Eleventh Amendment, citizens cannot sue a state in federal court. U.S. Const. 

amend. XI; see Hutto v. Finney, 437 U.S. 678. 699 ( 1978). In Ex parte Young, however. the 

Supreme Court carved out a narrow exception to this rule. 209 U.S. 123 ( 1908). The resulting Ex 

parte Young ·•fiction" holds that "because a sovereign state cannot commit an unconstitutional 

act. a state official enforcing an unconstitutional act is not acting for the sovereign state and 

therefore is not protected by the Eleventh Amendment.'' Okpalobi v. Foster. 244 F .3d 405, 411 

(5th Cir. 2001) (en bane). When a plaintiff sues a state official in his official capacity for 

constitutional violations, the plaintiff is not filing suit against the individuaL but instead the 

official's office, and can proceed with the constitutional claims. Will v. Michigan Dep 't of State 

Police. 491 U.S. 58. 70 (1989). 

The Ex parte Young fiction requires that the state officer have "some connection with the 

enforcement of the acf' or be "specially charged with the duty to enforce the statute." and also 

that the official indicate a willingness to enforce it. Ex parte Young. 209 U.S. at 157, 158. The 

officer's authority to enforce the act does not have to be found in the challenged statute itself; it 

is sufficient if it falls within the official's general duties to enforce related state laws. 

28 
144 


KING-6430 with DISTILLERInsert offset folio 83 here 23645.083

Case 3:16-cv-00442'CWR-LRA Document 35 Filed 06/30/16 Page 29 of 60 

"In determining whether the doctrine of Lx parte Young avoids an Eleventh Amendment 

bar to suit. a court need only conduct a straightforward inquiry into whether the complaint 

alleges an ongoing violation of federal law and seeks relief properly characterized as 

prospective." Verizon Maryland. Inc. , .. Public Service Comm'n of Maryland, 535 U.S. 635, 645 

(2002) (quotation marks. citation, and brackets omitted). 

2. Discussion 

All four defendants- the Governor. the Attorney General, the Executive Director of the 

Department of Human Services, and the Registrar of Vital Records- are state officials sued in 

their official capacities. These suits are effectively brought against their various offices. All four 

defendants also have a connection to the enforcement of HB 1523. 

Although Governor Bryant is the chief executive of the State. Ex parte Young does not 

permit a suit against a governor solely on the theory that he is •·charged with the execution of all 

of its laws." Ex parte Young. 209 U.S. at 157. A more specific causal connection is required.Jd. 

That connection is satisfied here. The Governor is the manager and supervisor of his staff, so he 

is personally required to enforce HB 1523's terms prohibiting adverse action against any of his 

employees who exercise a § 2 belief. Since the Governor has also indicated his willingness to 

enforce HB 1523 to the full extent of his authority, he is a proper defendant. See CB Condez, 

Mississ1j1pi Governor: Christians Would Line up.fiJr Crucifixion Befilre Abandoning Faith, The 

Christian Times, .June 2, 2016 (""[t!B 1523's critics] don't know that if it takes crucifixion. we 

will stand in line before abandoning our faith and our belief in our Lord and Savior .Jesus Christ' 

[Governor Bryant] said.''). 

26 The Governor's remarks are reminiscent of what Circuit Judge Tom P. Brady,later Mississippi Supreme Court 

Justice Brady, warned in his infamous Black Monday Speech. Judge Brady called on others to disobey Broll'nv. 

Board of Education by saying. "We have, through our forefathers, died before for our sacred principles. We can, if 

necessary, die again.'' Stephen J. Whitfield. A Death in the Delta: The Story of Emmett Till I 0 ( 1988). 

29 
145 


KING-6430 with DISTILLERInsert offset folio 84 here 23645.084

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 30 of 60 

In Establishment and Equal Protection Clause cases in particular, governors are often 

properly included as named defendants. See Romer. 517 U.S. at 620 (Gov. Roy Romer); 

Edwards v. Aguillard, 482 U.S. 578 ( 1987) (Gov. Edwin W. Edwards): Wallace, 472 U.S. at 38 

(Gov. George C. Wallace); Crqft v. Perry, 624 F.3d 157 (5th Cir. 201 0) (Gov. Rick Perry, as the 

sole defendant) [hereinafter Croft II]: CNJji I. 562 F.3d at 735 (same). 

General Hood is the state's chief law enforcement officer. but his general duty to 

represent the state in litigation is inadequate to invoke theE' parte Young exception. Like the 

Governor. though, HB 1523 prohibits General Hood from taking any action against one of his 

employees who acts in accordance with a § 2 belief. The Attorney General's Office employs 

hundreds of people across Mississippi, so he may very well be confronted with an HB 1523 

issue. 

Executive Director Davis. until authority is formally transferred to the new Department 

of Child Protective Services. is responsible for administering a variety of social programs. See 

Miss. Code Ann. § 43-1-51. HB 1523 has at least two sections that fall under his purview. See 

HB 1523 § 3(2)-(3). Under HB 1523. for example, DHS cannot take action against a foster or 

adoptive parent who violates DHS policies based on a ~ 2 belief. Davis's attorneys have given 

every impression that he will fully enforce his duties under HB 1523. 

As discussed above, Registrar Moulder is responsible for executing state laws concerning 

registration of marriages. See Miss. Code Ann. § 51-57-43. HB 1523 adds a new responsibility to 

her existing obligations: she must record the recusal of any circuit clerk who refuses to issue a 

marriage license because of a§ 2 belief. HB 1523 § 3(8)(a). Thus, she has a connection with HB 

1523's enforcement. Her counsel has also indicated her intent to comply with her new duties. 

30 
146 


KING-6430 with DISTILLERInsert offset folio 85 here 23645.085

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 31 of 60 

Lastly. the plaintifTs' requested relief also satisfies the Eleventh Amendment and Ex 

parte Young. In both cases, they have requested declaratory and prospective injunctive relief that 

would enjoin the enforcement of HB 1523 and prevent state officials from acting contrary to 

well-established precedent. Courts frequently grant this type of relief against state officials in 

constitutional litigation. See. e.g.. Romer, 517 U.S. at 620; TVallace. 472 U.S. at 38. 

Accordingly. the Ex parte Young exception to the Eleventh Amendment applies and these 

suits may proceed to seek declaratory and injunctive relief against these defendants. 

IV. Motion for Preliminary Injunction 

A. Legal Standard 

To receive a preliminary injunction. the movant must show·'(!) a substantial likelihood 

of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not 

granted; (3) that the threatened injury outweighs any harm that the injunction might cause to the 

defendant; and (4) that the injunction will not disserve the public interest.'' Opulent Lile Church 

r. City of Holly Springs, Miss .. 697 F.3d 279, 288 (5th Cir. 2012) (citation omitted). ·'Each of 

these factors presents a mixed question offact and law." !d. (citation omitted) . 

.. A preliminary injunction is an extraordinary remedy. It should only be granted if the 

movant has clearly carried the burden of persuasion on all four ... prerequisites.•· 1\Jiss. Power & 

Light Co. v. United Gas Pipe Line Co .. 760 F.2d 618. 621 (5th Cir. 1985). 

··The purpose of a preliminary injunction is always to prevent irreparable injury so as to 

preserve the court's ability to render a meaningful decision on the merits. It often happens that 

this purpose is furthered by preservation of the status quo, but not always." Canal Aut h. ofState 

of"Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). 

31 
147 


KING-6430 with DISTILLERInsert offset folio 86 here 23645.086

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 32 of 60 

B. Substantial Likelihood of Success on the Merits 

The movant's likelihood of success is determined by substantive Jaw. Valley v. Rapides 

Parish Sch. Bd., 118 F.3d 1047. l 051 (5th Cir. 1997). ""To successfully mount a facial challenge. 

the plaintiffs must show that there is no set of circumstances under which [HB 1523) is 

constitutional. If the plaintiffs successfully show [it] to be unconstitutional in every application, 

then that provision will be struck down as invalid ... Crofi JI, 624 F.3d at 164. 

1. The Equal Protection Clause 

Under the Fourteenth Amendment, a state may not ··deprive any person of life. liberty, or 

propetiy. without due process of the law; nor deny any person within its jurisdiction equal 

protection of the laws:· U.S. Const. amend. XIV,§ 1. 

The Equal Protection Clause of this Amendment means that .. all persons similarly 

circumstanced shall be treated alike:· Plyler v. Doe, 457 U.S. 202, 216 (1982) (citation omitted). 

The primary intent of the Equal Protection Clause was to require states to provide the same 

treatment for whites and freed slaves concerning personhood and citizenship rights enumerated 

in the Civil Rights Act of 1866.27 

The Equal Protection Clause is no longer limited to racial classifications. That is not 

because racial discrimination and racial inequality haYe ceased to exist. Rather. as discrimination 

against groups becomes more prominent and understood, we turn to the Equal Protection clause 

to attempt to level the playing field. Compare Bradwell v. Illinois, 83 U.S. 130 (!872) (denying 

women equal protection of the laws) with United States v. Virginia, 518 U.S. 515 (1996) 

07 United States Senator Jacob Howard introduced the Fourteenth Amendment in the Senate. "This abolishes all 

class legislation in the States and does away with the injustice subjecting one caste of persons to a code not 

applicable to another;· he said. "It prohibits the hanging of a black man for a crime for which the white man is not to 

be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over 

the white man. Is it not time. Mr. President. that we extend to the black man ... the equal protection oflaw?'" Cong. 

Globe, 39th Cong .. 1st Sess. 2766 (1866). 

32 
148 


KING-6430 with DISTILLERInsert offset folio 87 here 23645.087

Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16 Page 33 of 60 

(recognizing that women are entitled to equal protection of the laws). "A prime part of the 

history of our Constitution ... is the story of the extension of constitutional rights and 

protections to people once ignored or excluded.'' Virginia, 518 U.S. at 557; see Cass R. Sunstein. 

Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and 

Equal Protection, 55 U. Chi. L. Rev. 1161, 1163 (1988) ("The Equal Protection Clause ... has 

been understood as an attempt to protect disadvantaged groups from discriminatory practices. 

however deeply engrained and longstanding."). One hundred and fifty years after its passage. the 

Fomtcenth Amendment remains necessary to ensure that all Americans receive equal protection 

of the laws. 

Sexual orientation is a relatively recent addition to the equal protection canon. In 1996, 

the Supreme Court made it clear that arbitrary discrimination on the basis of sexual orientation 

violates the Equal Protection Clause. See Romer. 517 U.S. at 635. Seven years later, the Court 

held that the Constitution protects LGBT adults tl·mn government intrusion into their private 

relationships. See Lawrence v. Texas. 539 U.S. 558. 578 (2003). 

"After Romer and Lmrrence. federal courts began to conclude that discrimination on the 

basis of sexual orientation that is not rationally related to a legitimate governmental interest 

violates the Equal Protection Clause.'' Gill v. Delvin. 867 F. Supp. 2d 849, 856 (N.D. Tex. 2012). 

Now. Obergefell makes clear that LGBT citizens have "equal dignity in the eyes of the law. The 

Constitution grants them that right.'' 135 S. Ct. at 2608. 

a. Animus 

·'The Constitution's guarantee of equality must at the very least mean that a bare 

[legislative] desire to harm a politically unpopular group cannot justify disparate treatment of 

33 
149 


KING-6430 with DISTILLERInsert offset folio 88 here 23645.088

Written Statement of 

David Stacy 

Government Affairs Director 

Human Rights Campaign 

To the 

Committee on 

United States House of Representatives 

Hearing Entitled: Religious Liberty and H.R. 2802, The First Amendment Defense Act 

July 12, 2016 

Mr. Chairman and Members of the Committee: 

My name is David Stacy, and I am the Government Affairs Director for the Human Rights 

Campaign, America's largest civil rights organization working to achieve lesbian, gay, bisexual, 

transgender, and queer (LGBTQ) equality. On behalf of our 1.5 million members and supporters 

nationwide, I appreciate the opportunity to submit this statement into the record for this hearing 

on the First Amendment Defense Act. However, before continuing with this statement, I must 

recognized that today marks the one-month anniversary of the tragic shooting at Pulse nightclub 

in Orlando, Florida. 49 people lost their lives, 53 were injured, and many more will spend the 

rest of their lives nursing the invisible scars of trauma and survival. Holding a hearing on 

legislation designed to undermine federal protections for LGBTQ people on this day is 

particularly insensitive to the still-grieving national LGBTQ community. It reflects an 

inexcusable disregard from our elected officials and a callous blindness to our shared humanity. 

The right of free exercise of religion is fundamental. This freedom to worship- or not- without 

fear of government intrusion or compulsion is a core American value. Recognizing this right as 

a cornerstone of American identity, our country's founders designed explicit, intentional, and 

seemingly immovable protections. The First Amendment of the U.S. Constitution provides 

meaningful and weighty safeguards of this right that have consistently been strongly upheld by 

the courts. Today's hearing isn't about the First Amendment. It's not about freedom. It's not 

about protecting the vulnerable or the innocent. Today's hearing is an attempt to manipulate our 

dearest Constitutional words into dangerous tools to undermine the patchwork of federal legal 

protections the LGBTQ community has managed to piece together over the past decade. The 

First Amendment Defense Act ignores existing Constitutional protections for religious belief and 

practice. Perhaps even more troubling, F ADA threatens to tip the delicate balance of individual 

rights and religious liberties that the founders so artfully designed, undermining decades of civil 

rights protections and leaving some of the most vulnerable members of our society open to 

unmediated discrimination. 

Although we are deeply concerned with the whole of the bill, I would like to take the opportunity 

today to first address Section 3 of the latest version circulated Monday, July 11 entitled 
150 


KING-6430 with DISTILLERInsert offset folio 89 here 23645.089

"Protection of the Free Exercise of Religious Belief and Moral Conviction." The First 

Amendment provides strong protections from government establishment of religion and for the 

free exercise of religion. It is silent, however, on protections for so-called "moral convictions." 

The U.S. Code speaks of"moral conviction" with similarly stark rarity and courts have 

consistently made clear that the protections afforded to religious belief are not, and should not, 

be conflated with those lesser protections available for secular convictions. Federal courts have 

directly addressed the important difference between moral convictions and religious belief. The 

3'd Circuit's decision in Malnak v. Yogi1

, provided the now well-established and accepted 

differentiation stating that religion is not "one question or one moral teaching; it has a broader 

scope. It lays claim to an ultimate and comprehensive 'truth'." The founders never intended to 

extend our most sacred Constitutional protections to myopic, singular convictions untethered by 

religious conviction. However, FADA does just that It's incorporation of"moral convictions" 

along-side religious belief in Section 3 Subpart (a) not only ignores the Constitution, but 

transforms a secular conviction into a religious sanctity in the eyes of the law. This creates a 

misguided and dangerous precedent that was never intended by the framers. 

We also take this opportunity to address Section 3, Subpart (a)(2), which includes the belief that 

"extramarital relations are improper" as a protected characteristic under F ADA. This section of 

F ADA runs contrary to the Constitutional principles of liberty and privacy by explicitly allowing 

for covered entities including thousands of employers and service providers operating on 

behalf of the federal government- to discriminate against individuals based on private sexual 

conduct. As described in Lawrence v. Texas, the right to liberty under the Due Process Clause of 

the 14'11 amendment gives individuals "the full right to engage in private conduct without 

government intervention."2 The Lawrence court also clearly states that laws seeking to regulate 

adult, consensual conduct-just as the federal government would hereby be condoning 

discrimination on the part of its agents -- touch "upon the most private human conduct, sexual 

behavior, and in the most private of places, the home.''3 

Subpart (a)(2) also seeks to circumvent Jaws prohibiting discrimination on the basis of marital or 

familial status that have been in place for over three decades. Currently 21 states prohibit such 

discrimination, and Federal grant-making agencies also uniformly include discrimination on the 

basis of family or marital status within grant requirements. These protections are essential and 

often protect some of the most vulnerable members in our society. Recent studies have shown 

that there is a growing marriage gap that cuts starkly across race, class, and socioeconomic 

lines.4 Under F ADA, organizations or businesses receiving federal funding could discriminate 

against families or individuals based on unmarried cohabitation or use of birth control or other 

forms of family planning. For example, an organization implementing a federal grant and 

t Ma/nakv. Yogi, 592 F.2d 197,205 (3d Cir. 1979). 2 Lawrence v. Texas, 539 U.S. 558, 578 (2003). 3 Id. at 562. 4 Pew Research Center. The Decline of Marriage and Rise c!{New Families (2010). 

2 
151 


KING-6430 with DISTILLERInsert offset folio 90 here 23645.090

otherwise bound by federal nondiscrimination provisions could be allowed to fire an unmarried 

female employee who utilizes birth control for family planning purposes simply by citing their 

sincerely held religious belief regarding sexual relations and marriage. An emergency shelter 

receiving HUD funding could turn away unmarried parents from a program designed to keep 

families just like theirs intact simply because they had engaged in extramarital sex. This 

undermines decades of civil rights case law and strips the growing number of single parent 

families of the critical protections they have come to depend on. 

The "discriminatory actions" defined in subpart (b) are also deeply troubling. Sections (b )(1) 

and (2) provide that the Federal Government may not "alter in any way the Federal tax treatment 

of, or cause any tax, penalty or payment to be assessed against, or deny, delay, or revoke an 

exemption from taxation under section SOI(a) of the Internal Revenue Code of 1986" or 

"disallow a deduction for Federal tax purposes of any charitable contribution made to or by such 

person" as a result of discriminatory behavior on the part of a covered entity. These paragraphs 

are unnecessary at best and irresponsible fear mongering at worst. Religious organizations are 

considered exempt as charitable organizations under §50l(c)(3) of the tax code. As ~Titten, 

FADA prohibits the IRS from revoking tax exempt status on the basis of a religious 

organization's beliefs on marriage or sexual behavior. 

The IRS is loath to deny or rescind a religious organization's tax-exempt status. In fact, research 

conducted by a leading tax scholar indicated that over the past 37 years the IRS only issued 88 

private letter rulings denying or withdrawing tax-exempt status. 5 Although the IRS has denied 

tax-exempt status on public policy grounds largely on the basis of race discrimination- there is 

no record that it has withdrawn an organization's tax-exempt status on these grounds. The 

Supreme Court case of Bob Jones Univ. v. United States created the standard for denying taxexempt status for organizations violating public policy. 6 In this case, the IRS determined that 

Bob Jones University, a Christian school, violated public policy by creating and enforcing 

racially discriminatory policies including a ban on interracial dating 16 years after Loving v. 

Virginia. 7 The Court's decision in Bob Jones is measured, providing an almost-clinical analysis 

of the development of the type of''fundamental public policy" that would warrant denial of taxexempt status. Here the Court provides, "An unbroken line of cases following Brown v. Board 

ofEducation establishes beyond doubt this Court's view that racial discrimination in education 

violates a most fundamental national public policy, as well as rights of individuals." 8 

Aside from blatant race discrimination like that displayed for decades by Bob Jones University, 

the IRS and the courts have not found any activity to be a fundamental violation of public policy 

beyond those addressed in criminal and civil statutes. In fact, the Court in Bob Jones concluded 

5 Sam Brunson, "The Church Will Not Lose Its Tax Exempt Status," BY COMMON CONSENT, available at 

http:/ /bycommonconsent.com/20 15/07 /09/the-church-will-not-lose-its-tax -exempt-status/. 6 Bob Jones Univ. v. United States, 461 U.S. 574 (1983). 7 Id. 

8 !d. at 593. 

3 
152 


KING-6430 with DISTILLERInsert offset folio 91 here 23645.091

that, "these sensitive determinations should be made only where there is no doubt that the 

organization's activities violate fundamental public policy."9 There is also clear federal court 

precedent that policies that discriminate on the basis of age, disability, and particularly sex are 

permissible under federal civil rights laws if they are in the context of practicing religion. These 

broad protections coupled with the IRS's well-documented aversion to denying tax exempt status 

on public policy grounds makes this provision in FADA misinformed, unnecessary, and 

irresponsible. 

The remaining "discriminatory actions'' included in Subpart (b) seek to foster state sanctioned 

discrimination under the guise of religious liberty. They severely limit the federal government's 

ability to protect vulnerable communities, and reveal a transparent attempt to co-opt the language 

of federal civil rights policies in order to undermine their effect. The bill's broad, overreaching 

language would not only prevent the federal government from combatting harmful 

discrimination, but could mandate it. Paragraph (b)(3) provides that the Federal Government 

may not "withhold, reduce, exclude, terminate, or otherwise make unavailable or deny any 

Federal grant, contract, subcontract, cooperative agreement, guarantee, loan, scholarship, 

license, certification, accreditation, employment, or other similar position or status from or to 

such person" based on a covered entity's beliefs on marriage or sexual relations (emphasis 

added). 

Under this provision, F ADA would allow non-profit organizations and businesses contracting 

with the federal government to circumvent federal protections designed to protect same-sex 

couples and their families including Executive Order 11,246. For example, despite clear 

nondiscrimination policies, this bill would require the federal government to continue to contract 

with a non-profit business with a record of discriminatory employment practices against married 

same-sex couples if that employer cited their objection to same-sex marriage as a the reason for 

the discrimination. 

Today, proponents of the bill have argued that these so-called "protections" are narrow and don't 

"focus on housing" and other critical social services. However, nothing could be further from 

the truth. Paragraph (b)(3) would also provide a de facto exemption from baseline 

nondiscrimination grant requirements -undermining access to lifeline programs and protections 

for those who need them the most Federal grant making is not an abstract idea and its reach is 

far from narrow. In 2015 alone, the federal government issued over $600 billion in federal grant 

funding- much of this going to support programs that provide housing, health care, education 

and other critical imoads to stability and success for so many in our community. In order to 

receive a federal grant, organizations must comply with a set of standards to ensure that federal 

tax dollars are being used in ways that further the mission of the federal programs they are 

helping to administer. The Department of Housing and Urban Development, for example, 

provides billions of dollars to state and local governments and organizations to provide 

9 ld. at 598. 

4 
153 


KING-6430 with DISTILLERInsert offset folio 92 here 23645.092

emergency housing and supportive services for individuals facing homelessness or housing 

insecurity. To receive these grants, organizations must comply with HUD's nondiscrimination 

requirements that not only prohibit discrimination on the basis of sexual orientation and gender 

identity, but also marital status. Under FADA however, an organization receiving funding from 

HUD to operate an emergency homeless shelter could cite this Act and provide their religious 

conviction against same-sex marriage as a reason to put a same-sex couple and their children 

back on the street. 

Subprut (c) entitled "Accreditation; Licensure; Certification" is also deeply problematic. This 

section provides that, "The Federal Govermnent shall consider accredited, licensed, or certified 

for purposes ofFederallaw any person that would be accredited, licensed, or certified, 

respectively, for such purposes but for a determination against such person wholly or prutially on 

the basis that the person believes, speaks, or acts in accordance with the sincerely held religious 

belief or moral conviction described in subsection (a)." In practice, this section would allow 

individuals or schools to practice medicine, engage in mental health counseling, or operate 

educational programs without a license while receiving public federal endorsement. This 

undermines state and local control over such licensing procedures and threatens the public 

health. For example, under FADA a psychologist practicing so-called conversion therapy or 

engaging in harassing or discriminatory behavior towards LGBTQ patients could continue to 

receive federal support despite revocation of their license from the state licensing board. 

Finally, I will address Section 6 entitled, "Definitions" and paragraph (3) entitled "Person" 

specifically. The exclusions from personhood incorporated into this section do not provide 

adequate safeguards for victims of discrimination at the hands of covered entities. Section 

(3)(A) excludes "federal employee[s] acting within the scope of employment" from coverage 

under the bill. However, hundreds of federal programs, including the State Child Healtl1 

Insurance Program and Medicaid, are administered by state and local employees. F ADA would 

empower these state and local employees who personally object to same-sex marriage to refuse 

to fully perform their jobs. For example, a state worker administering either of iliese federal 

health programs could refuse to process a same-sex couple's application for coverage under 

Medicaid or their child's SCHIP application based on the worker's belief regarding same-sex 

marriage. 

Section (3)( c) also threatens the health and well-being of same-sex couples and single parents in 

the healthcare context. Tbis section excludes from coverage under the act, "a hospital, clinic, 

hospice, nursing home, or other medical or residential custodial facility with respect to visitation, 

recognition of a designated representative for healthcare decision-making, or refusal to provide 

medical treatment necessary to cure an illness or injury." Under this section, hospitals could 

deny access to spousal counseling including grief counseling and caregiving support to a samesex spouse based on their sincerely held beliefs. This section also fails to address access to noncurative palliative care or treatment of other medical conditions including pregnancy. Under 

F ADA, a hospital or healthcare provider could refuse to care for a pregnant or laboring person 
154 


KING-6430 with DISTILLERInsert offset folio 93 here 23645.093

based solely on marital status either as a single parent or as someone in a same-sex 

relationship. This denial of care could significantly delay access to essential medical 

intervention and could have life-threatening results. 

Proponents ofF ADA today have argued that the scope and impact of the bill are exceedingly 

narrow. They have argued that any concerns regarding the rights of third parties are mere 

"conjecture." Unfortunately, this could not be further from the truth. The testimony we have 

provided today provides real examples of how this patently unconstitutional legislation would 

harm real people. LGBTQ Americans face discrimination, bias-motivated violence, and 

bullying and harassment every day. These problems are real and urgent. This Congress should 

be working to address these significant challenges rather than considering this ill-conceived 

legislation. 

I appreciate the opportunity to offer this testimony today. 

* * * 

6 
155 


KING-6430 with DISTILLERInsert offset folio 94 here 23645.094

July 6, 2016 

The Honorable Jason Chaffetz 

Chairman 

Committee on Oversight and Government Reform 

U.S. House of Representatives 

Washington, D.C. 20515 

Cancel July 12 Hearing on Discriminatory Anti-LGBT Bill 

Dear Chairman Chaffetz: 

Like millions around the world, we were heartbroken by the murder of 49 people and the 

wounding of 53 others at a gay nightclub in Orlando, Florida on June 12. The overwhelming 

majority of the victims of this attack were Latino/Latina/Latinx and LGBT. As President Obama 

movingly reminded the nation just hours after this hotTendous attack: 

The shooter targeted a nightclub where people came together to be 

with friends, to dance and sing-to live. The place where they were 

attacked is more than a nightclub -- it's a place of solidarity and 

empowerment where people have long come together to raise 

awareness, speak their mind and advocate for their civil rights. So 

this is a sobering reminder that attacks on any American --

regardless of race, ethnicity, religion or sexual orientation-- is an 

attack on all of us and on the fundamental values of equality and 

dignity that define us as a country. 1 

July 12 will mark the one-month anniversary of this tragedy. In the month since, Congress has 

not held a single hearing on the needs of the victims, their families, and survivors, or on ways to 

better protect the LGBT community from bias-motivated violence or discrimination. We are 

deeply disappointed to learn that the House Committee on Oversight and Government Reform 

plans to hold a hearing on a discriminatory, anti-LGBT bill known as the "First Amendment 

Defense Act" (H.R. 2802) on the one-month anniversary of this tragedy. We write to urge von 

to cancel this hearing. 

Rather than focusing on legislation to protect LGBT people and others in America from harm, 

FADA would permit unprecedented taxpayer-funded discrimination against LGBT people. 

Among the legislation's many harms, it could even allow any privately owned business to refuse 

to let a gay or lesbian employee take time off to care for their sick spouse, in violation of family 

and medical leave laws- a particularly appalling aspect given the many families currently caring 

for those who were injured in the Orlando shooting. A proposal like this only serves to harm a 

vnlnerable community. 

1 Pres. Barack Obama, Remarks on Mass Shooting in Orlando (Jun. 12, 2016), available at 

https:/ /www. whitehouse.gov/the-press-office/20 16/06/12/remarks-presidcnt -mass-shooting-orlando 

1 
156 


KING-6430 with DISTILLERInsert offset folio 95 here 23645.095

We have seen similar discriminatory bills introduced in state legislatures across the country this 

year- the vast majority of which were defeated after facing significant, bipartisan backlash. One 

such proposal that was signed into law in Mississippi was blocked by a federal judge on June 30 

as a violation of both the Establishment Clause and the Equal Protection Clause of the U.S. 

Constitution2 

We urge you to cancel the July 12 hearing and instead hold hearings on how best to ensure that 

no one in this country is subjected to violence or discrimination based on who they are or whom 

they love. 

Sincerely, 

National Organizations 

Advocates for Youth 

American Civil Liberties Union 

American Humanist Association 

Americans United for Separation of Church and State 

Anti-Defamation Leagne 

Association of Reproductive Health Professionals (ARHP) 

Athlete Ally 

Bend the Arc Jewish Action 

BiNet USA 

Catholics for Choice 

Center for Inquiry 

CenterLink: The Community of LGBT Centers 

Equality Federation 

Family Equality Council 

Feminist Majority Foundation 

Freedom for All Americans 

GLBTQ Legal Advocates & Defenders (GLAD) 

GLSEN 

Hadassah, The Women's Zionist Organization of America, Inc. 

Human Rights Campaign 

Institute for Science and Human Values 

Jewish Women International (JWI) 

Kcshet 

Lambda Legal 

The Leadership Conference on Civil and Human Rights 

Marriage Equality USA 

NAACP 

NARAL Pro-Choice America 

National Abortion Federation 

National Asian Pacific American Women's Forum 

2 Chris Geidner, Federal Judge Halts Mississippi Anti-LGBT Law From Going Into Effect, BuzzFEEDNEWS, Jul. 1, 

20 16, https:/ /www .buzzfeed.com/chrisgeidncr/federal-judge-ha lts-mississippi-anti-lgbt-law-from-goingint?utm_term=.krXv20Gbm#.fyVk3NJ7Y. 

2 
157 


KING-6430 with DISTILLERInsert offset folio 96 here 23645.096

National Black Justice Coalition 

National Center for Lesbian Rights 

National Center for Transgender Equality 

National Council of Jewish Women 

National LGBTQ Task Force Action Fund 

National Latina Institute for Reproductive Health 

National Organization for Women 

National Partnership for Women & Families 

National Women's Health Network 

National Women's Law Center 

PFLAG National 

People For the American Way 

Planned Parenthood Federation of America 

Population Connection Action Fund 

Pride at Work 

Religious Institute 

Secular Coalition for America 

Secular Policy Institute 

Sexuality Information and Education Council of the U.S. (SIECUS) 

Union for Reform Judaism 

Unitarian Universalist Women's Federation 

State/Local Organizations 

AIDS Alabama 

Equality Alabama 

Equality California 

Equality Florida 

Equality lllinois 

EqualityMaine 

Equality Michigan 

Equality New Mexico 

Equality North Carolina 

Equality Ohio 

Equality South Dakota 

Equality Texas 

Fair Wisconsin 

Fairness Campaign 

Georgia Equality 

One Colorado 

OutFront Minnesota 

PROMO 

The Los Angeles LGBT Center 

Whitman-Walker Health 

Cc: The Honorable Elijah Cummings, Ranking Member, Committee on Oversight and 

Government Reform 

3 
158 


KING-6430 with DISTILLERInsert offset folio 97 here 23645.097

July 12,2016 

The Honorable Jason Chaffetz 

Chairman 

U.S. House Committee on Oversight 

& Government Reform 

Washington, D.C. 20515 

nt=a.•- p_.,..., -· 1 nc ·-......... • ar _. 

jewish action 

The Honorable Elijah Cummings 

Ranking Member 

U.S. House Committee on Oversight 

& Government Reform 

Washington, D.C. 20515 

Re: Bend the Arc Jewish Action and Faith Leaders oppose the First Amendment 

Defense Act (H.R. 2802) 

Dear Chairman Chaffetz and Ranking Member Cummings: 

As the CEO of Bend the Arc Jewish Action, I submit this letter to you today for the 

record of this Committee's hearing on "Religious Liberty and H.R. 2802, The First 

Amendment Defense Act (FAD A)." Bend the Arc opposes the so-called First 

Amendment Defense Act (H.R. 2802) outright, but it is all the more appalling, 

disgraceful and offensive that a hearing on this legislation was scheduled for the one 

month anniversary of the tragic mass murder of 49 LGBTQ people and allies in 

Orlando, Florida. 

Within the faith community, there is broad and diverse opposition to this legislation. 

This is illustrated in the attached letter, which was sent to this Committee in July, 2015, 

in advance of a possible hearing on this legislation. It is signed by more than 3,000 

clergy and faith leaders that Bend the Arc organized with our partners at Auburn 

Seminary. These faith leaders serve communities across the United States-Baptists, 

Jews, Muslims, Catholics, and so many others-and are unified by the belief that this 

legislation docs nothing to protect religious liberty. Rather, we believe that draconian 

legislation like this actually undermines the true spirit of religious liberty by favoring 

one religious viewpoint over another and, in the process, discriminating against LGBTQ 

people, single mothers and unmarried couples. Such legislation will open the door to 

unprecedented taxpayer-funded discrimination, but it will do nothing to support real 

religious liberty. 

Thank you for your consideration. 

Sincerely~ 

~c~ Stosh Cotler 

CEO 

Bend the Arc Jewish Action 
159 


KING-6430 with DISTILLERInsert offset folio 98 here 23645.098

July 21,2015 

The Honorable Jason Chaffetz 

Chairman 

U.S. House Committee on Oversight 

& Government Reform 

Washington, D.C. 20515 

The Honorable Elijah Cummings 

Ranking Member 

U.S. House Conm1ittee on Oversight 

& Government Reform 

Washington, D.C. 20515 

Re: Faith Leaders Oppose the First Amendment Defense Act (H.R. 2802) 

Dear Chairman Chaffetz and Ranking Member Cunm1ings: 

As clergy and faith leaders who serve diverse communities across the United States and 

arc dedicated to affirming the religious freedom of every individual, we write to express 

our opposition to the First Amendment Defense Act (H.R. 2802). 

The religious liberty upon which our nation was founded has allowed our country's 

diverse religious landscape to flourish. Recently, however, what we have seen promoted 

as defending religious liberty too often reflects one particular religious perspective that 

does not at all respect that diversity of faith and belief, or the intent of our Founders. 

We believe that the First Amendment Defense Act does not respect the spirit of 

religious liberty-nor does it reflect fundamental values of treating all people with 

fairness and equality-and we therefore strongly oppose this legislation. Further, 

though people of faith are not a monolith and all are not in agreement on whether their 

faith sanctions LGBT relationships, we cannot in good conscience support legislation 

that favors one religious viewpoint over another and in the process discriminates against 

LGBT people, single mothers and unmarried couples. 

The religious freedom of individuals and organizations, including clergy and houses of 

worship, who object to same-sex marriage are already protected by the First 

Amendment and federal law-and we, as clergy and faith leaders, continue to stand by 

the right of others to hold beliefs that may differ from our own while recognizing that 

for many of us, supporting LGBT individuals and families is a principle of our faith. 

Rather than protecting the First Amendment, this legislation actually undermines true 

religious liberty. The religious liberty on which our nation was founded guarantees us 

the freedom to hold any belief we choose and the right to act on our religious beliefsbut it does not allow us to harn1 or discriminate against others or to infringe on the 

religious beliefs of others. 

By opening the door to unprecedented taxpayer-funded discrimination against LGBT 

people, single mothers and unmarried couples, this legislation does nothing to protect 

our rights as people of diverse faith traditions and it has the potential to do considerable 

harm in the name of religion. For example, were this bill to become law it would: 
160 


KING-6430 with DISTILLERInsert offset folio 99 here 23645.099

• allow an organization to accept federal funds to run a homeless shelter or drug 

treatment program but then tum away from that program LGBT people or anyone 

who has a sexual relationship outside of marriage; 

• allow hospitals to refuse dying patients visitation from their spouse or designated 

support person; and 

• permit a government employee to deny services they have a duty to provide, 

including Veterans or Social Security benefits to a surviving member of a samesex couple. 

We are also troubled that this bill is so broad it could even prevent the federal 

government from enforcing longstanding laws designed to combat discrimination and 

promote equality. For example, it would let commercial landlords violate fair housing 

Jaws by refusing housing to a single mother based on the landlord's religious beliefs and 

allow businesses to violate family medical leave laws by refusing to let a gay or lesbian 

employee care for a sick spouse. 

As people of deep faith committed to a country that supports diverse, robust, and 

healthy religious expression and in the spirit of equality and justice, we urge you to 

oppose the First Amendment Defense Act. 

Thank you for your consideration. 

Sincerely, 

Imam Daayiee Abdullah, DC Marie Alabiso, MA 

Sally Abrams, CA Donna Aladeen, CA 

Bishop Bishop Allyson Abrams, Priest Stacy Alan, IL 

MD 

Christine Abrams, P A 

Michael Abrams, P A 

Dwight Adair, TX 

Daryl Adams, AZ 

Cheryl Adams, CA 

Pastor Katherine Adams, IL 

Minister Timothy Adams, NE 

Reverend Joseph Adams, NY 

Marty Adams, W A 

Michael Adams Sr, NC 

Darley Adare, NC 

Minister Michael Adee, N'M 

David Adelson, NY 

Lisa Adolf, W A 

Priest Daniel Aerts, MI 

Christa Agostino, AZ 

Casandra Agustin, AR 

Jed Aicher, NY 

Donald Albert, DC 

Lonnie Albrecht, FL 

Jill Alcantar, CA 

Anita Alcantara, IL 

Judy Alexander, CA 

Joseph Alfano, NY 

Marie Alford-Harkey, CT 

Matthew Algren, OH 

Babs Allen, AL 

Tamara Allen, AZ 

Terrie Allen, CA 

Richard Allen, CT 

Susan Allen, NC 

Kendra Allen, OH 

Rabbi Adam Allenberg, CA 

Veronica Alleyne, NY 

Katy Allie, CT 

Shirley Allison, CO 

Kelly Allison, MD 

Jim Allyn, WA 

Gregg Alpert, CA 

Gloriamarie Amalfitano, CA 

Bruce Ambuel, WI 

Reverend David Ames, RI 

Martha H. Ames, RI 

Lorenza Amico, VA 

Kara Ammon, NH 

Jon Anderholm, CA 

Kristen Andersen, CO 

Dan Anderson, CA 

Dina Anderson, CO 

Rev. Chaplain PJ Anderson, 

MI 

Diane Andrulonis, MD 

Danice Andrus, CA 

JoAnn Anglin, CA 

Billy Angus, MT 

Louis Anipen, FL 

Jennifer Anthony, OR 

Stephen Appell, NY 

Susaan Aram, CA 
161 


KING-6430 with DISTILLERInsert offset folio 100 here 23645.100

Chris Archer, TX 

Beverly Archibald, TX 

Janice Ardell, CA 

Lucille Arenson, CA 

Cristine Arlet, FL 

Shirley Armand, IL 

Bob Armintor, CO 

Chris Armitage, UT 

James Armour, MO 

LeRoi Annstead, NY 

Gina Annstrong, AL 

Peter Amcson, NY 

Marge Amold, FL 

Kay Amold, TX 

John Amott, NY 

Ardith Arrington, W A 

Fran As beck, MD 

Julie Ashmead, MI 

Mary Ann Aspan, WI 

Ellen Asprooth, NY 

Minister Jay Atkinson, CA 

Reverend Joy Atkinson, CA 

Holly Atkinson, NY 

Fred Attebury, MI 

Reverend Anne Atwell, FL 

Kimberly Au, CA 

Pastor jolm aucr, CA 

Pastor Gerry Auger, NH 

Linda Auld, CO 

Samuel Austin, CA 

Pastor Priscilla Austin, W A 

Darryl Autry, VA 

Sara Avery, CO 

John Avett, KS 

Susan Ayarbe, NV 

Loretta Ayrer, SC 

Yvonne Baab, VT 

Bmee Babcock, CA 

Carla Babrick, MO 

Harriet Bachner, KS 

Meghan Backhouse, MA 

Karen Hedwig Backman, W A 

Linda Bader, IA 

Carolyn Bagby, CO 

Ann Bailey, CA 

Annette Bailey, NY 

Clifton Bain, AL 

Matthew Bain, CA 

Minister Steven Baines, VA 

Sharon Baker, CO 

Gerritt Baker-Smith, PA 

Elizabeth Baker-Smith, P A 

Robert Ballard, TX 

Lynn Ballen, CA 

Wanda Ballentine, MN 

Dan Ballinger, CA 

Marie BaUmann, KS 

Jonathan Banks, MA 

Tamara Bannan, MI 

CJ Bmmochie, GA 

Michelle Baptiste, CA 

Clayton Barbeau, CA 

Mary Barbezat, IL 

Reverend Kay Barckley, WA 

Nick Barcott, W A 

Joan Bard, CA 

Diane Barense, RI 

Linda Barger, MI 

Lisa Barker, CA 

Howard Barker, NY 

Jean Barker, PA 

Sylvia Bamard, NY 

Kathy Bamarr, NM 

Sharon Bames, CA 

Susan Bames, CA 

Tracy Bames, FL 

Adam Bames, VA 

Paul Barnett, NJ 

Bemadette Bamhurst, P A 

William Bamhurst, PA 

Karen Barr, VA 

Donna Barrett, IL 

Carolyn Barrett, NJ 

PatBarry,MA 

Deacon Jean Barry, RI 

Jeanette Bartz, MI 

Eric Bass, CA 

Rick Bassett, CT 

Madeleine Bateman, OR 

Jaime Bateman, TN 

Minister Rev. Henry Bates, 

CA 

Reverend Lindsay Bates, IL 

Father J. Barrington Bates, NJ 

Melvin Bautista, AZ 

Corrine Bayley, W A 

Richard Beal, NY 

Reverend Dave Bean, OR 

Lisa Bearden, MI 

William Beasley, GA 

Diane Beaty, FL 

Ervin Beaulier, IL 

Shirley Beaupre, NM 

John A Beavers, IL 

Patrice Beck, W A 

Rabbi Shelley Kovar Becker, 

NY 

Stanley Becker, NY 

William Becker, OR 

Elaine Becker, VA 

Brice Beckham, CA 

John Beckman, CA 

Carla Behrens, CO 

Ann Bein, CA 

Bemadette Belcastro, NY 

Joseph Belisle, MA 

Linda Belisle, NH 

Bobby Belknap, MI 

Robert Belknap, NC 

Mother Candace Bell, AK 

Minister Rev Renwick Bell, 

FL 

Cari Bell, WI 

Angela Bellacosa, W A 

Jerry Bellows, MA 

Daniel Beltran, CT 

Judith Beltz, IN 

Reverend Virginia Bemis, OH 

CLARA BENIC, OH 

Nelly Benko-Hakim, LA 

Priest Mandy Bennett, CA 

Richard Bennett, MA 

Linda Bennett, MI 

Henry Bennett, OR 

Stuart Bennett, VA 

Helen Benson, CT 

Pastor Steven Benson, MT 

Joan Beregi, P A 

Nick Berezansky, NJ 

Priest Frank Bergen, AZ 

Pat Berger, ME 

Judith Bergson, MA 

Marjorie Berk, NY 

Rabbi Donald R Berlin, MD 
162 


KING-6430 with DISTILLERInsert offset folio 101 here 23645.101

Ted Bernard, TX 

Patrick and Connie Berry, NM 

Craig Bert, CO 

Linda Bescript, AZ 

Herb Bettin, CA 

Terri Betz, OR 

Pastor Claire Beutler-Cruise, 

WI 

Emma Beverage, TX 

Rabbi Binyamin Biber, MD 

Sara Bible, MN 

Josh Billings, GA 

Gene Binder, NY 

Gary Binderim, TX 

Sammie Birdsall, MI 

Cori Bishop, NJ 

Nancy Bishop, OR 

Scott Bishop, W A 

Hal Bitner, PA 

Alan Bixler, NM 

Joanne black, NY 

Sandra Blackburn, CA 

William Blackshear, CO 

Katherine Blackwood, VA 

Sarah Blain, CA 

Anna Blake, W A 

Pastor Max Blalock, VA 

Rosemary Blanchard, NM 

Reverend Tsukina Blessing, 

WA 

Patricia Blevins, CA 

Steve Bloom, NY 

Sharon Bodman, OR 

Brian Boettcher, WI 

Phyllis Bogartz, CA 

Matthew Bognske, WA 

Sonua Bohannon, TN 

Scott Boileau, SC 

Kathryn Boland, MA 

Miss Crystal J Boles, AZ 

dan bolger, CA 

Ronnie Bolling, FL 

Priest Charles Bolser, IL 

Barbie Bolt, TN 

Mona Bomgaars, HI 

Juliana Boner, MN 

Christine Bonn, SC 

Julia Bonnell, NY 

Reverend James J. Boone, Jr., 

MA 

Dave Boorse, P A 

Ray Bordine, OH 

Bishop Most Rev. Mel 

Borham DD, MA 

Deborah L Born, FL 

Atme Borreggine, ME 

Francy Pavlas Bose, WA 

Father Allan Bouley, MN 

Jeremy Bourget, RI 

David Bowles, CA 

Jason Bowman, CA 

Marci Bowman, CO 

Karen Boyd, MN 

Malaika Boyd, TX 

Susan Boyer, GA 

Frances Boyle, PA 

Sandra Boylston, FL 

Lorraine brabham, NJ 

Gregg Bracke, KY 

Rhonda Bracken, NC 

Kathy Bradley, SC 

Anita Lynn Brady, CA 

Sandra Brady, FL 

Mike Brahan, KS 

Judy Brahan, KS 

Georgia Braithwaite, AZ 

Marian Brand, NY 

Daniel Brant, W A 

Barbara Brass, CA 

Valorie Bratcher, MO 

Deborah Bratcher, TX 

Jim Brauner, MO 

Priest Ellen Brauza, NY 

James Bray, WI 

Elana Brazile, OR 

Pastor James Brehler, OH 

Dianne Brehmer, NM 

Kathleen Brendel, IL 

Jane Brennan, P A 

Pastor Don Brenneman, CO 

Swanson Brent, ID 

Thomas Brewster, FL 

Deborah Brewster, IL 

Margaret Brick, P A 

Merlin Brinkerhoff, MT 

Mary Brinton, IL 

Patricia Briones, CO 

Heather Broadfoot, NY 

Minister Judy Brock, TX 

Father Blaise Brockman, CA 

Diana Brodscholl, NJ 

Priest Rev. Ruth Broeski, OR 

David Brokaw, NY 

Alan Bromborsky, MD 

Ruth Brooker, MN 

Rev. James E Brooking, CA 

Claire Broome, CA 

Sister Magdalen Broussard, 

LA 

Tina Brown, AR 

Bernard Brown, AZ 

Dnncan Brown, AZ 

Minister Molly Brown, CA 

Rabbi Jerry Brown, CA 

Reverend Rachelle Brown, IL 

Sandra S. Brown, MA 

Craig Brown, MN 

Linda Brown, NV 

Brandye Brown, TX 

BONNIE BROWN, UT 

Robert Brown, W A 

Phyllis Browne, MA 

Frederick Browne, MO 

Minister Geoff Browning, CA 

Felicia Bruce, FL 

Maureen Brucker, CO 

Jim Brunner, CA 

Babette Bruton, FL 

Stan Bryant. CO 

Cade Bryant, FL 

Rabbi Shawna BrynjegardBialik, CA 

Ken and Donna Bubb, NV 

Laura Buccola, CA 

Eben Buchanan, GA 

Kathleen Buckley, NM 

Stephanie Budwey, MA 

Stephan Bugaj, CA 

Kelly Bull, WI 

George Bullwinkle, P A 

Gail Bumala, OR 

Bishop Rev. Pat Bumgardner, 

NY 

Mary Bunker, MD 
163 


KING-6430 with DISTILLERInsert offset folio 102 here 23645.102

Robert Burch, OR 

Reverend Rev. Max Burg, IL 

Patricia Burgert, NC 

Bridget Burke, AZ 

LBurke, NY 

Caroline Burkett, CA 

Scott Burkett, OH 

Lou Ann Burkle, IA 

Carol Burnett, OR 

Pastor Stephanie Burns, FL 

Reverend Susan Burns, MN 

Ian Burns, NY 

Bruce Burns, TX 

Minister Suzanne Burris, SD 

Pastor Victoria Burson, MD 

Arthur Burzykowski, IL 

Michael Busby. ID 

Roberta Bushman, NM 

Julie Bushnell, NY 

Michael Bussee, CA 

Reverend Barbara BustardBurnside, MD 

Mike Butche, IL 

Carolyn Sue Butler, NC 

Thomas Butler, RI 

Kathleen Button, NY 

Grace Byerly, MD 

Ted Byers, WA 

Rich Caccamo, NJ 

Randal Caffarel, GA 

Katherine Cagle, NC 

Brian Cahill, CA 

Charles Calati, MI 

Annette Calderone, PhD, RN, 

PA 

Nancy Caldwell, MD 

Debra Calkins, W A 

Bridget Callahan, P A 

Reverend Clark Callender, VT 

Mary Calvanese, P A 

Priest Roland Calvert, MI 

Theresa Cameranesi, CA 

Reverend Rebecca Cameron, 

CA 

Scott Cameron, FL 

Jean Cameron, TX 

Michele Camilleri, MI 

Pat Camobell, CT 

Rich Camp, CA 

Minister Charles Camp, TX 

John Campbell, AL 

Jaden Campbell, CA 

Sister Simone Campbell, DC 

Linda Campbell, FL 

Julie Campbell, MI 

Patricia Campbell, PA 

Cantor Russell Campbell, W A 

Marilyn Campbell, WA 

Henri Campo, CA 

Roque Candia Osorio, MA 

John Canepa, NH 

Roe! Canti, TX 

John Capalbo, NJ 

Reverend Philip L. Capp, WA 

Mark Cappetta, CA 

Virginia Caraco, SC 

Dena Carani-Spire, IL 

Susan Caravello. NY 

Ann Carberry, CA 

Phyllis Cardozo, CA 

Deacon Paul Cardwell, TX 

Alice Carli, NY 

Reverend Ann Carlisle, CO 

Helen Carls, TN 

Patricia Carlson, CA 

Matthew Carlson, P A 

Reverend Carole Carlson, VT 

Heather Cannan, NY 

Carl Carmichael, WY 

Tom Carpenter, CA 

Reverend Robert Carpenter, 

FL 

Laura Carrico, KY 

Joan Carrier, ME 

Sally Carroll, CA 

Reverend Mary Carson, OH 

Keren Carter, CA 

Jacqueline Carter, TX 

Sarah Cascarino, P A 

Priest Kelly Casey, MN 

Joseph R Cash, NY 

Charles Casper, NY 

Leslie Cassidy, NY 

Susanne Cassidy, P A 

Jamie Castaneda, CA 

Kicab Castaneda-Mendez, NC 

Jon Catanese, OH 

Lori Caudill, CA 

Lindsey Caudill, TX 

Pastor Reverend Dr Neil 

Cazares-Thomas, TX 

Barbara Cerridwen, NC 

D. Chalfin, MA 

Mikki Chalker, NY 

James Chambers, AZ 

Minister Tricia Chandler, CO 

Susan Chandler, FL 

John Chaney, W A 

Reverend Mark Charlton, CA 

Patti Charlton, TX 

Marim Charry, NY 

Donna Charter, TX 

Tom Chase, IA 

Tania Chavez, NM 

Melvin D. Cheitlin, CA 

G.W. Cheney, NC 

Leslie Chester, OR 

Susan Chesterman, CA 

Noreen Chiaramonte, IL 

Anthony Chico, CA 

Eileen Chieco, OR 

Margaret Chinappi, MA 

Andrea Chinn, NY 

Mary Chmielowiec, CO 

Rikesh Chouhan, MA 

She'ree Choy, 1'-.'Y 

John Christensen, MO 

Jan Christensen, NY 

Sharon Christenson, NJ 

Danielle Christmas, NC 

Logan Chrysler, W A 

Mark Chudzik, OH 

Marianne Ciardullo, CT 

Darlene Cieri, NY 

Karen Cignoli, NY 

Edna Ciurleo, MN 

Maria Clair-Howard, NY 

Michael Clancy, NY 

Gary Clark, CA 

Mary Clark, IN 

Morgan Clark, NJ 

Cate Clark, NM 

Carol Clark, NY 

Jacquelyn Clark, OR 
164 


KING-6430 with DISTILLERInsert offset folio 103 here 23645.103

Cameron Clark, TN 

Charles Clark, WI 

Victoria Clark, WI 

Julia Clarke, WA 

Thad Clarksoles, TX 

Gayle Clark-Taylor, WI 

Ann Clark-Whitlock, FL 

Gretchen Clay, W A 

James Cleek, TX 

Elise Cleva, VA 

Minister Maureen ClevelandRyan, VT 

Donna Clifford, MA 

Minister Rev. Robert Coats, 

VA 

Pastor Rev. Joe Cobb, VA 

Deborah Coble, NY 

John Cochrane, OR 

Patricia Cockrell, MI 

Catherine Coco, CT 

Margo coffer, MT 

Ashley Coffman, IN 

Albert Coffman, P A 

Minister Marian Coger, NY 

Janice Cohen, KY 

Shelly Cohen, W A 

Craig Colclough, CA 

Michele Cole, NY 

Nadina Cole-Potter, AZ 

Beverly Colgan, NV 

Angel Collie, NC 

Blythe Collier, CA 

Tim Collingwood, OH 

Nancy Collins, GA 

Peggy S. Collins, MI 

Karen Colson, FL 

Pastor Rev. CC Coltrain, OH 

Albert Coltrane, GA 

William Combs, CA 

Mary Jo Comerford, IL 

Rene Compean, CA 

Virginia (Ginger) Comstock, 

NY 

Mariama Congo, MA 

Crystal Conklin, OR 

Minister Rev.Jim Conn, CA 

Reverend Jeffrey Conn, P A 

Jan Conner, MN 

Adam Conner-Sax, NY 

Mindy Connolly, IA 

Debra Connolly, NJ 

Arthur Connor, CA 

Bob Conrich, FL 

JoAnn Consiglieri, CA 

Patricia Constantino, NY 

Sister Elizabeth Conyers, RI 

Pastor Jerry Cook, AR 

Carol Cook, CA 

Beth Cook, MN 

Elizabeth Cook, NC 

Kathleen Cook, NY 

Catherine Cook, TX 

Marian Cooley, IN 

Laura Cooley, NH 

Richard E Cooley, NM 

Margaret Coons, SC 

Nathan Cordell, TX 

Diane Cordelle, NH 

Guy Cordelle, NH 

Sandra Corder, VA 

Joanne Corey, NY 

Jared Cornelia, DE 

Scott Coronet, lA 

Dance Costa, AL 

Mary Costello, MD 

Mark Costner, NC 

Stosh Cotler, NY 

Barbara Cotter, VA 

Rita Cotterly, TX 

Scott Cottrill, NM 

John Coughlin, IL 

Stephen Courim, TX 

Susan Courtney, FL 

Arthur Couture Jr, MA 

Leonard Cowan, CA 

Sister Mary Macrina Cowan, 

OK 

Reverend David Cowell, CA 

KaraCox, VA 

Minister John Coyle, NC 

Reverend Charlotte Coyle, TX 

Jerry Coyle, TX 

Bob Craft, CA 

Reverend Ann Craig, NY 

Elizabeth G. Craig, TX 

Betsy Crane, P A 

Amy Crawford, CA 

kaye Crawford, CA 

Sheilagh Creighton, CA 

Richard Creswell, CO 

Reverend Rylie Crine, OH 

Aaron Cristaldi, NY 

Robert Criste-Troutman, PA 

John Cronin, CA 

Bernadette Cronin-Geller, P A 

Norman Crouter, W A 

Rita Crowley, IL 

William Crum, NY 

Ruth Crump, MD 

Reverend Jennifer Crumpton, 

NY 

Cindy Cruz, CA 

Drew Cucuzza, CT 

Minister Jack Cuffari, NJ 

Rachel Cullar, CA 

Sarah Cullen, FL 

John Culley, TN 

Suzanne Cunliffe, WA 

tish cunningham, FL 

Judy Curcuru, MI 

Minister Michael Curd, NE 

Peter Curia, AZ 

Joshua Curnutt, NY 

donna curry, ME 

Michael Curry, TX 

Anna Cushman, MI 

Michael Cutter, AK 

Joanna Cutting-Brady, MA 

maureen czick, CT 

Thomas Dahl, FL 

Mother Mary Dahl, WI 

Susan Dailey, CA 

Mitch Dalition, CA 

Brother Br. Martin Dally, 

O.S.B.,MI 

Niloofar Damavandi, TX 

Lisa D'Ambrosio, MA 

Mary Danhauer, KY 

David Daniel, TX 

Lo Daniels, MO 

Susan Danner, CO 

SILVIO DARCO, AZ 

Michael Darling, CA 

Charles Davids, FL 
165 


KING-6430 with DISTILLERInsert offset folio 104 here 23645.104

Howard Davidson, CA 

Minister The Rev. Fred Davie, 

NY 

Stephen Davie, NY 

Carol Davies, KY 

Valerie Davies, W A 

Dr. Thomas M. Davies, Jr., 

NM 

Jill Davine, CA 

Florence V Davis, AZ 

Glenda Davis, AZ 

Patricia Davis, CA 

Sharon Davis, FL 

Father Clem Davis, IN 

Elmo M. Davis, KS 

Nancy L Davis, ME 

Barbara Davis, NM 

Wayne Davis, TX 

Justin Davis, VA 

Robert Daws, AL 

Cris Day, FL 

Pastor Constance Day, ID 

Signe Dayhoff, NM 

Deacon Susan De Antonio, 

CA 

Ken De La Rosa, CA 

Cantor Brian De Young, MI 

Lisa Dean, GA 

Patrisha Dean, IA 

Janice Dean, VA 

Patricia Deane, NY 

John Dearing-Brisk, ME 

Bartley Deason, MT 

Suzanne DeBenedittis, CA 

Anita DeBias, FL 

Randolph Decker, AZ 

Kendra Decker, MI 

Diana Dee, CA 

Shelly Degenhardt, KS 

Bob Delaney, MO 

Elizabeth Deligio, IL 

Mother Patricia Dell era, NV 

Loretta DeMarco, P A 

Joanna DeMaris, AZ 

Sheila Denion, CT 

Cantor Gary Dcnk, CA 

Frances Dennis, NC 

Paul Densmore, MN 

Cantor Brian Denton, AL 

Michael Denton, CA 

Genevieve Deppong, CA 

DonDer, TN 

Mary Detrick, FL 

Pastor Jeanne Devine, TX 

Felicity Devlin, WA 

AE DeWitt, GA 

Ainsley Dewitte, NY 

Donna R. D'Fini, MA 

Rainbow Di Benedetto, TX 

Robert Di Censo, RI 

Donald Di Russo, MA 

James Dias, MN 

Melinda DiCarlo, VA 

Geraldine Dickel, CT 

Kathleen Dickeman, W A 

Rebecca Dickinson, AZ 

Josal Diebold, NY 

Diana Diggin, VT 

Michael Diggs, KS 

Christine Dillon-Puchalsky, 

WI 

Christopher DiMaio, CA 

Minister Carol Dimmett, TX 

Maryann D'Imperio, IL 

Tbu Dirks, NY 

Bob Dittmeier, NY 

Joanne Dixon, CO 

Rosemary Dixon, IL 

Timothy Dobbins, CA 

Dorothy Dobbyn, DE 

Kevin Dockery, NC 

Lisa Doetz, NC 

Karen Doherty, NY 

Elaine Dolan, W A 

Garry M. Doll, P A 

Michael Dolloff, IA 

William Donald, MO 

Pastor Kathy Donley, NY 

Sheila Donnelly, NY 

Liz Donohue, NY 

Robert Donohue, NY 

ED DORNAN, MI 

James Dorr, IN 

Susan Dorris, MO 

Kelly Doss, MN 

Julie Doss, NV 

Edward Doss, VA 

Cantor James Doten, MD 

Mary Dougherty, OH 

Manetric Douglas, IN 

Marijo Douglass, NV 

Bruce Douglass, NV 

Gary Dowling, CA 

John Downing, VA 

John Doyle, NY 

Heather E. Drees, ND 

Tamara Dreier, IL 

Sharyn Dreyer, CO 

Eileen Dreyer, Mo 

Rabbi Ellen Dreyfus, IL 

Robert Droeszler, WI 

David Drukaroff, NJ 

Philip Drumm, NJ 

Chris Drumright, TN 

Lucia Dryanski, IA 

Caroln Drymon, FL 

Sara DuBois, W A 

TimDuda, TX 

Marianne Duddy-Burke, MA 

Lloyd Dudney, VA 

Priest John Duffell, NY 

JoAnn Duman, TX 

Sylvia Duncan, TX 

Nancy Dunkly, CO 

Kathleen Dunlap, P A 

Lorian Dunlop, CA 

Sara Dunn, IN 

Tricia Dunne-Silvetti, NY 

Colin Dum1igan, AZ 

Erica Durante, NJ 

Robert Durfee, NY 

Alia Durfee, WI 

Erma Durkin, MD 

Brother Frank Dwyer, NC 

Mary Dyer, IA 

Cheryl Dykstra, NY 

Cheryl Dzubak, NJ 

Susan Earle, MA 

Sister Nancy Earle, ME 

Brian Eason, AZ 

Janet Easton, NY 

Wendell Eatherly, AL 

Lorrie Eaton, W A 

Marcus Ebenhoe, NY 
166 


KING-6430 with DISTILLERInsert offset folio 105 here 23645.105

Brother Harold Eccles, KY 

Jerome Edelman, NY 

Sandra Edelman, NY 

Carolyn Edelstein, VA 

Roy Edfast, W A 

Patdover Edmunds, GA 

Eric Edwards, IL 

Penny Edwards, OK 

Reverend Judi Edwards, W A 

Tenaya Egbert, MN 

Rabbi Denise Eger, CA 

Barbara Ehemann, TX 

Paul Eisenberg, IN 

Lynetta Elder, TX 

Mary Eliades, IL 

Susie Elleman, CO 

Nancy Ellingham, WA 

Minister Rev John Ellington, 

KS 

Richard Elliott, CA 

Jean Elliott, IL 

Robert Elliott, IL 

Joanne Elman, NC 

Paul Engstrom, CA 

Rebecca Ennen, DC 

Richard Ennis, CA 

Hedy Epstein, MO 

Kelly Epstein, TX 

Arlyn Erdman, CA 

Heidi Erdmann, W A 

Barb Ericksen, ME 

Mandy Erickson, CA 

Cleo Ernst, W A 

Minister Florence Ernzen, MI 

Donald Erway, HI 

John Eschen, W A 

Debbie Espinola, MA 

Cecilia Espinoza, AZ 

Catriona Esquibel, CA 

Elaine Eudy, GA 

Vincent Evangelisti, PA 

Michael W Evans, CA 

Becky Everson, CA 

Deacon Herb Evert, WI 

Tracy Ewing, CA 

Jeanne Exline, MN 

Donna Eyster, MI 

Laura Faber, NC 

Neil Fagan, IA 

Rita Fahrner, CA 

Reverend Bonnie Faith-Smith, 

MA 

Kathleen Fallon, TX 

Minister Jeff Falter, NY 

Newton Farmer, KY 

Suzanne Fast, FL 

Stephen Fast, PA 

Charley Faulkenberry, SC 

LeSashea Feagin, IN 

Pastor Paul Feiertag, CA 

Tracy Feldman, NC 

Becks Feng, OK 

Robert Fenstermaker, PA 

Pastor Dave Ferguson, CA 

Marcia Ferguson, DE 

Janice Ferguson, NY 

Beverly Fernsemer, ND 

Michael Ferris, CA 

Aida Fers, MD 

Rabbi Michael Fessler, NY 

Sue Feutz, SC 

Ruth Fichter, MI 

Siobhan Field, CA 

Tom Field, VA 

Johnny Fifles, V..TY 

Felicity Figueroa, CA 

Priest Christopher Fike, MA 

Pastor Stephen Filizzi, FL 

James Finch, TN 

Patricia Finder-Stone, RN, 

MS, WI 

Rabbi Brian Fink, NY 

Brother D. Hadley Finke, MO 

Carolyn Finken-Dove, KS 

Alberta Finnegan, CA 

Ashley Finucane, MD 

Monica Firely, FL 

Douglas Firman, VA 

Jenna Firshein, NJ 

Rabbi Rabbi Stephen Fisch, 

TX 

JC Fisher, CA 

Jenifer Fisher, CO 

Reverend Barbara Arme 

Fisher, MD 

Rebecca Fisher, MO 

Deacon Catharine Fisher, VA 

Ted Fishman, CA 

Todd Fisk, CA 

Silvio Fittipaldi, P A 

Chris Fitts, NY 

Mary-Elizabeth Fitzgerald, 

NY 

Lois Fitzpatrick, OR 

Marianne Flanagan, IL 

Mary C Fleege, MN 

Elise Fleeharty, MD 

Patrick Fleeharty, MD 

Tim Fleischer, KY 

Ellen Fleishman, NY 

Melissa Fleming, MA 

John AND Jean Fleming, MN 

Tracey Fleming, TX 

Wayne Flick, CO 

Sally Flood, IN 

Regina Flores, CA 

Reverend Julio Flores, CT 

Bobby Flores, TX 

Reverend MacArthur 

Flournoy, CA 

Jeannene flowers, LA 

Mary Fly, TX 

Johnny Foam, CA 

Enell Foerster, KS 

Andrew Foertsch, FL 

Reverend Colleen Foley, KY 

Edwin Fong, CA 

Christina Fong, MI 

Deseree Fontenot, CA 

Jean Forbath, CA 

Sharon Forbes, AZ 

Reverend David Foreman, IN 

Raymond Foret, LA 

John Forma, FL 

Clarence Forman, CA 

Daryl Forman, CA 

Sharon Forrest, GA 

Sister Corinne Forsman, ID 

Carole Foster, OR 

Delaina Foster, TX 

Jerry Fouchey, MI 

A. Marina Fournier, CA 

Tamar Fox, PA 

Cathy Foxhoven, CA 
167 


KING-6430 with DISTILLERInsert offset folio 106 here 23645.106

Harriet Fraad, NY 

Tess Fraad-Wolff, NY 

Matthew Franck, NJ 

Faith Franck, NV 

Barbara Franck, P A 

Richard Franken, WI 

Laurie Franklin, MN 

Brooke Franko, AZ 

Lyn Franks, AK 

Sandra Franz, IL 

James Frase-White, VT 

Kathryn Freeman, OR 

Manny Freitas, NY 

Suzanne Fremon, NY 

Neil Freson, NY 

Andrew Frey, CA 

Leanne Friedman, CA 

Richard Friesenhengst, OH 

Rebecca Frisch, KY 

Pastor Lucille Fritz, CT 

Richard Fronek, MD 

Deacon Sue Frueauff, AR 

Priest Gwen Fry, AR 

Cal Frye, OH 

Eddie Fukui, NY 

Margot Fulmer, CA 

Joan Fulton, CA 

Richard Fung, IL 

Reverend Fern Gaffey, PA 

Cantor Juan Pedro Gaffney, 

CA 

Joyce Gaffney, CA 

Brian Gagnon, MA 

Norbert Gaier, WI 

Rita Gaither-Gant, IN 

Kathleen Gallagher, CA 

Mark Gallagher, MA 

Mark Gallegos, CA 

Reverend Robert Galloway, 

TN 

Rosemary Gant, NY 

Rabbi Lillian Garber, MA 

Deacon M. Teresa Garcia, CA 

April Garcia, MD 

Beth Garcia, TX 

Bruce Garcia, TX 

David Gardner, CA 

Katherine Gardner, CA 

William Gardner, MI 

Marie Garescher, NY 

Minister Reverend Betsy 

Garland, RI 

Gail Garloch, OK 

Pamela Gam Nunn, OH 

Jan Ga!Tett, KY 

Kelly Garrison, TX 

Esther Garvett, FL 

Priest Milton Gatch, NY 

Nancy Gates, MA 

Nancy Gathing, WI 

Sarah Gatti, IL 

Gina Gatto, CA 

Glenn Gawinowicz, P A 

James Gawne, IN 

Lydia Geduldig, IL 

Kayla Geer, P A 

Carol Gehl, WI 

Dr. Peter GeideL NJ 

George Gemma, AZ 

Eve Gentry, ID 

Gordon Gerbitz, CA 

Linda Gertig, NE 

Shannon Gerton, VA 

Jayce Getz, NC 

Raymond Getzinger, VA 

Lillian Gibbons, MD 

Reverend Vickey Gibbs, TX 

Bob Gibeling, GA 

Jody Gibson, IA 

Laura Gibson, OK 

Katherine Gibson, RI 

Franklin Gibson, TX 

Reverend Rev. Richard 

Gibson, WA 

Melinda Giese, W A 

Mark M Giese, WI 

Robert Gifford, IL 

Lynda Gildennan, CA 

Daniel Gildesgame, NY 

Thomas Giles, CA 

Rebecca Gililland, CO 

Thomas Gillespie, CA 

Julia Gillett, CO 

James Gilmore, OR 

Eric Gilmour, MT 

Craig Gingrich-Philbrook, IL 

Dana Ginn, CA 

Margarita Giustino, TX 

Susanne Given, NH 

James Gladysz, FL 

Joe Glaston, CA 

Rabbi Henry Glazer, NJ 

Dr. Prisca Gloor, CA 

Carol Gloor, IL 

Reverend Rosalind Gnat!, TX 

Cliff Goddard, TX 

Jim Godin, WI 

Debra Godwin, OR 

Jane Goesch, WI 

Kassie Goforth, W A 

Sister Grace Go lata, WI 

Wendy Goldberg, PA 

Ellen Goldin, NY 

john golding, CA 

Sonia Goldstein, NY 

Wanda Goleman, LA 

Robert Gomez, CA 

Bronte Gonzales, TX 

Maureen Gonzalez, CA 

Justo Gonzalez, NY 

Pastor Jim Gooch, TX 

Kahlil Goodwyn, NY 

Rabbi Keren Gorban, PA 

Richard GoiTinge, Ph. D., OR 

Maureen Gotimer, NY 

Rabbi Arthur Gould, CA 

Mary Ann Graffagnino, AZ 

Leslie Grafstrom, CA 

barbara graham, CA 

Jennifer Graham, FL 

Jacqueline Graham, SC 

Christopher Granholm, AZ 

Lynn Grant, FL 

Rabbi Lisa Grant, NY 

Chuck Graver, NJ 

Caryn Graves, CA 

Richard Gray, IL 

Alison Gray, PA 

Molly Gray, TX 

Martha Elaine Graybill, CA 

Deacon Almelissa Gray-Lion, 

MI 

Sister Jodie Greb, TX 

June Green, CA 
168 


KING-6430 with DISTILLERInsert offset folio 107 here 23645.107

Ralph Green, CO 

Sandra Green, FL 

Julie Green, LA 

Carol Green, MN 

Jim Green, WI 

Mary Kay Green, JD, MO 

Marc Greenberg, NY 

Cantor Tanya Greenblatt, NY 

Eliza Greene, CA 

Marilee Greene, MI 

Reverend Ronald Greene, MT 

David Greene, P A 

Helen Greer, AZ 

Carol Greer, PA 

Georgan Gregg, NC 

Carolyn Gregg, W A 

Paul Gregg, WI 

Arthur Gregorian, CA 

Mary Gregory, CA 

Pamylle Greinke, NY 

Brett Grcisen, NY 

Brother Eric Grejda, CA 

Archie Gress, TX 

Mercy Grieco, CA 

Robert Griffin, CA 

Minister Robert Griffin, FL 

Chas Griffin, NC 

Nanette Griffin, TX 

Chris Grilly, MA 

Reverend Rev. Charles 

Grindle, ME 

Mother Christina Gringeri, UT 

Bruce Grohman, CA 

Wayne Groesbeck, Ml 

Minister Annie Grogan, TX 

John D Groppe, IN 

Sheila Grotzky, CO 

Steve Grout, PA 

Barbara Grove, TX 

Sharon Groves, DC 

Dale Grupe, IL 

Ellen Guertin, CT 

David R. Guinnup, DE 

Stephen M Gulick, P A 

Rachel Gullett, AZ 

Reverend Robert Gunn, NY 

Peter Gunther, IL 

Lloyd Guptill, MA 

Amber Guthrie, MD 

Elizabeth Guthrie, NY 

Andrea Gutierrez, CO 

Steven Guzman-Peonio, CO 

Annie Gwynne-Vaughan, CA 

Lama Gyatso, CA 

Pastor Jon Haack, TX 

Edda Hackl, IL 

Jean Hackney, P A 

Ann Haden, AL 

Gloria Hafuer, CA 

Kathy Hagenow, IN 

Benjamin Hagler, TN 

Sharrnala Haines, FL 

Michele Hajek, MN 

Robert Hakes Jr, FL 

Cathy Hale, OH 

Pastor Sara Hale, P A 

Mary Haley, CA 

Roisin Halfar, MO 

Emily Hall, AL 

Janice Hallman, MN 

Pastor Carol Hallman, NC 

Kevin Halloran, NY 

Leah Hallow, NY 

Dee Halzack, MA 

Keith Hamburg, W A 

Colleen Hamilton, NY 

Reverend Sue Hamly, MN 

Eleanor Hammer, CA 

Linda Hanchett, OR 

Janet HandfOrr, RI 

Jon Haney, GA 

Susan Haney, NY 

Jane Hanna, NM 

Eleanor Hanna, P A 

Priest Michelle Hansen, CT 

Lauren Hanzel, CA 

Minister Charles Happel, IN 

Priest Raymond Harbor!, P A 

Roxella Harkleroad, AR 

Judith Harland, lA 

James Harland, P A 

Hannah Harley, P A 

Reverend John Harper, IA 

Carol Harris, KY 

Theresa Harris, MI 

Jennifer Harris, MN 

Sister Jeannie Harris, TX 

June Harris, TX 

Nicolas Harris, TX 

Shirlene Harris, TX 

Jeane Harrison, IA 

Randy Harrison, OR 

Kathy Hart, NJ 

Marie Hart, NY 

Sara Hart, SC 

George Hartman, CO 

Nancy Hartman, CO 

Gaye Hartwig, NJ 

JefHarvey, AK 

Catherine Harvey, MA 

Christine Harvey, NY 

Linda Haschart, VA 

Dora Hasen, OR 

Mary Ann Haske, VA 

Eric Haskins, HI 

Robert Haslag, MO 

Margaret Hasselman, CA 

Jayleen Hatmaker, OH 

Mary Hattendorf, CO 

Jennifer Hatton, OR 

Martha Hauer, CO 

Tamara Haught, lA 

Jill Haverland-Wilder, OR 

Rose Hawkes, MA 

H. Hawkins, AZ 

Helma Hawkins, MO 

Patricia Hawn, VA 

Emily Hayden, IL 

Justina Hayden, W A 

Pastor John Hayner, FL 

JeVema Haynes, VA 

Reverend Trace Haythom, GA 

Crystal Headrick, TN 

Lorraine Heagy, P A 

Mark Heald, TN 

Minister Holly Hearon, MN 

Barry Heath, GA 

Lloyd Hedger, W A 

Elizabeth Hedrick, NY 

Amelia Hefferlin, MI 

Sandra Heggen, TX 

Sister Bonnie Heh, P A 

Linda Heidenreich, W A 

Robert Heikkila, SC 
169 


KING-6430 with DISTILLERInsert offset folio 108 here 23645.108

Reverend Lisa Heilig, GA 

Father Joseph Heininger, IL 

Richard Heinlein, WI 

Lucia Heinold, MI 

Patricia Heinz, ME 

Ruth Held, NC 

Mary Heller, NY 

Bonnie Helm, IL 

Robert Hemberger, FL 

Diane Hendricks, TX 

Carol and Les Henig, MD 

Dan Henkoff, MA 

Jeanne Henley, TX 

Judith Henningsen, TX 

Anne henry, FL 

Sheri Henry, FL 

David henry, NJ 

Chuck Hens, OR 

Wilma Hens, OR 

Priest The Rev. Charles H 

Hensel, IL 

Brandi Henson, MO 

Lana Henson, OK 

Brenda Hepler, CA 

Dale Herbert, CA 

Daniel Herbst, CA 

Paula Herd, TX 

Leanne Herda, WI 

Sister Suzanne Herder, MN 

Bill Herman, CA 

Barbara Herman, CT 

Rabbi Floyd Herman, MD 

Birgit Hennann, CA 

Susan Hernandez, NY 

Edith Herring, LA 

Priscilla Herrington, MA 

Phillip Herrington, PA 

J Michael Herrington, TX 

Cheryl Herrmann, AZ 

Jane Herron, TN 

Joyce Hertzig, NE 

Thomas Hessley, PA 

Mother Gwen Hetler, MI 

Reverend Susan Hetrick, AZ 

Jerry Hewes, ID 

Joyce Heyn, CA 

Derrick Heyward, TX 

Cynthia Heywood, IL 

James Hickey, TX 

Andrea Hicklin, W A 

Jerry Hicks, IL 

Sister Shane Hicks-Lee, PA 

L.D. Hieber Jr., MI 

Barry Higginbotham, VA 

Roy Higgins, GA 

Pastor Dean Hill, FL 

Mark Hillenbrand, IL 

Edward Hills, MI 

Erica Himes, FL 

MaryHimmer, PA 

Jerry Hines, NV 

Reverend Glenn Hinson, KY 

Minister Rev Dr BK Hipsher, 

MA 

Richard Ho, NJ 

Adrienne Hochberg, FL 

Jemme Hochstatter, WI 

Mary Hodge, GA 

Jean Hodgins, NY 

Mary Hoffman, AZ 

Ruth Hoffman, AZ 

Robert Hoffman, PA 

Tom Hoffman, VA 

Kristen Hoffmaster, MD 

Patricia Hofrichter, CA 

Joel Hofslund, IL 

Felicity Hohenshelt, FL 

Suzi Hokonson, W A 

Ken Holder, TX 

Brett Holland, CA 

Kelly Holland, CA 

Valerie Holland, HI 

John Holland, MA 

Jenny Holland, TX 

Billy Hollaway, OK 

Pamela Hollenbeck, OH 

Thomas Holley, OR 

John Hollick, NY 

Crissy Hollifield, SC 

Becky Holloman, KY 

James Holloway, NM 

James L. Holman, IL 

Reverend Candy Holmes, MD 

Stephanie Holmes, NY 

Derek Holodak, CT 

JC Honeycutt, NC 

Alexander Honigsblum, IA 

Mila Honor, NC 

Jennifer Honor, VA 

Mary Ellen Honsaker, WY 

Marjorie Hood, GA 

Margaret Hooper, OK 

Janet Hoover, CA 

Paul Hoover, P A 

Deana Hopkins, CO 

Donald Hopkins, P A 

James Hopkins, WY 

Keith Hom, LA 

Paul Horne, FL 

Adam Home, NY 

HELEN S. HORTON, CA 

Patrick Horton, MI 

Kathryn Horvat, UT 

Martin Horwitz, CA 

Clint Hosch, MI 

Laurent Hourcle, ME 

Jeanette Housner, WA 

Margaret Houston, CT 

Rebecca Howarth, CA 

Linda Howe, MA 

Jim Howe, NC 

Craig Howerton, AZ 

Pastor Jana Howson, IL 

C. Brent Hoy-Bianchi, NV 

Reverend Benjamin Hubbard, 

CA 

Dan Hubbard, NH 

Reverend Jo Hudson, TX 

Tim Huegerich, WI 

Glenn Hufuagel, NY 

Ann Hughes, KS 

Karen Hughes, OH 

Lisa Hughes, TX 

Angela Hughes, VA 

Terry Huinker, CO 

Jean Hulme, IA 

Thomas Humphrey, IL 

Sharon Humphries-Brooks, 

NY 

Chasity Hungerford, OR 

Lesley Hunt, CA 

Bruce Hunt, MA 

Marcia Hunt, MA 

Jan Hunter, OH 
170 


KING-6430 with DISTILLERInsert offset folio 109 here 23645.109

Rehana Huq, NY 

Carol Hurlburt, VA 

Martha Hurlburt, VA 

Rosalind Hurw, IL 

Jeffrey Hurwitz, CA 

Jason Husby, MN 

John Hutchens, WA 

Linda Hutchison, MD 

Arthur Ide, IA 

Sonia ImMasche, CO 

Milia Impola, NY 

Mary Irons, SC 

Beth Irvin, NC 

Sandy Irving, NC 

Priest Margaret Irwin, WI 

Judith Isaacson, MN 

Landon Isabell, MO 

Cheryl Ivey, IL 

Hitesh Iycr, CA 

Doug Jablin, NV 

David Jackson, TX 

Elisabeth Jacobs, NY 

Robert Jacobson, NY 

Martha Jaegers, MO 

Beverly Janowitz-Price, AZ 

Mark Janssen, SC 

Robert Janusko, PA 

Lark Jarvis, TX 

Jane Jatinen, TX 

Blamo Jaurey, NY 

Keyon Jeff, LA 

Paul Jefferson, KS 

Mary Jensen, NY 

James Jepson, CA 

Judy Jerde, MN 

Douglas & Deborah Jerry, WI 

Pastor Karen Jesseph, KS 

Diane Jobson, MI 

Brian Johns, KS 

Sister Ginny Johnson, CA 

Valerie Johnson, CA 

Eric Johnson, CA 

Pamela Johnson, DE 

Esther Johnson, FL 

Janet Johnson, IA 

Deacon Thalia Johnson, MI 

CandiJohnson,MN 

Reverend David Johnson, NC 

Bruce Johnson, NV 

Michele Johnson, NY 

Priest Christopher Johnson, 

OR 

Gail Johnson, OR 

Kathleen Johnson, OR 

Lin Johnson, OR 

Amy Johnson, W A 

Corbin Johnson, W A 

Lorraine D. Johnson, WA 

Richard Johnson, W A 

Elaine Dorough Johnson, WI 

Mary Johnston, MD 

Father Clifford Johnston, P A 

Kristin Johnstone, NJ 

Reverend Rev. Kevin L. 

Jones, CA 

Reverend The Rev. Allan B. 

Jones, CA 

Susan Jones, FL 

Kenneth Jones, MD 

Larry W. Jones, OK 

Mary Jones, WI 

Mary Ellen Jordan, MN 

Pastor Jeffrey Jordan, PA 

Dorothy Jordan, W A 

Teresa Jorgen, MO 

Francis Jue, NY 

Shari Juranic, NY 

Sister Carol Jussaume, MA 

Reverend Emma Justes, OH 

Minister Lincoln Justice, MO 

MoKafka, NY 

Patricia Kaganich, AZ 

Marilyn Kaggen, NY 

Kathleen Kahler, MN 

Rabbi Rachel Kahn-Troster, 

NJ 

Julia Kahrl, ME 

Carol Kain, NM 

Kathleen Kaiser, CA 

John Kaltsas, AZ 

Karen Kaminsky, AZ 

Sue Kamler, CO 

Lacey Kammerer, CA 

Diana Kampcrt, FL 

Robert Kantner, OH 

Erika Karandy, CA 

Deacon Michael Karban, FL 

Kellie Karkanen, CA 

Bess Katerinsky, NY 

Litsa Katsarou, NY 

David Katz, CA 

Helen Katz, CA 

Norman Kaufman, NY 

Heather Kaup, NE 

Valarie Kaur, CA 

William Kavanagh, IL 

Maureen Kavanagh, NY 

Ramona Kazma, HI 

Lisa Kazmier, NJ 

Meaghan Keane, CT 

Norman Keegel, W A 

Shirley Keen, CA 

Gerry Keen, TN 

Katharine Kehr, CA 

Michael Keith, P A 

Herman Keizer, MI 

Lucy Keller, FL 

Melissa Keller, PA 

Frances Kelley, La 

Dorinda Kelley, Or 

Reverend Matt Kelley, TN 

Jessica Kelley, TN 

Carolyn Kellogg, CA 

Catherine Kelly, CA 

Susan Kelly, CA 

Jamia Kelly, MA 

Priest Paul Kelly, NY 

Mike Kelly, NY 

Shari Kelts, MO 

Reverend Scott Kcncfake, NY 

Deacon Steve Kennedy, CA 

Rev. Wiilliam Kennedy, CA 

Charline Kennedy, FL 

Linda Kennedy, ID 

Karen Kennedy, MA 

Winifred Kennedy, NY 

Kirby Kennedy, VA 

Kim Kensler-Prager, OH 

Rosalind Kenworthy, NY 

Susan Kepner, ME 

Ann Kerbs, IL 

Janet Kerr, CA 

Vicki Kerr, OR 

Catherine Kerrigan, NY 
171 


KING-6430 with DISTILLERInsert offset folio 110 here 23645.110

Doris Kersten, NY 

Winifred L KeiWin, MI 

Carol Kessler, NY 

Meg Kettell, NY 

Kenneth Key, FL 

Minister Harbhajan Khalsa, 

MA 

Karl Kibler, TX 

Linda Kidder, IN 

Nancy Kilgore, WA 

Mary Kilpatrick, OH 

Marsha Kimball, W A 

Patti Kimble, MN 

Rabbi Jason Kimelman-Block, 

MD 

Jack Kincaid, CA 

Barbara King, CA 

Catherine Sara King, MI 

Charles King, NY 

Gene King, OR 

Stephen King, VA 

Philip King-Lowe, MN 

Dennis Kirby, IL 

Suzanne Kirby, NY 

John Kirchner, IN 

James Kirk, MA 

Paula Kirk, MA 

KATHLEEN KIRK, NJ 

Brandon Kirk, TX 

Lorraine Kirker, \VA 

Reverend Denise Kirk-Hall, 

TX 

Nancy KiiWan, CA 

Lori Kizzia, CA 

Patricia Kjcllgrcn, MN 

Reverend Mary Klaehn, AZ 

Michael Klausing, VA 

Elaine Klein, NY 

Rebecca Klemme Eliceiri, MO 

Ben Kloepper, MO 

Pete Klosterman, NY 

Brian Klubek, IL 

DKlump, WI 

Deanna Knickerbocker, CA 

Sandra Knight, AZ 

Mavis Knight, TX 

Kris Knoll, NV 

Susan Knolla, NY 

Diane Knott, MN 

Alice Knowles, MA 

Deirdre Knowles, W A 

Reverend Harry Knox, MD 

Reverend Dorothy Knudson, 

WA 

Bridget Koch-Timothy, CA 

Richard Koda, CT 

Charles Koehler, CA 

Leonard Koel, NM 

Deacon Elizabeth KoffronEisen, lA 

Mary Kokesh, NJ 

Michael F Kolassa, NY 

Rabbi Debra Kolodny, OR 

Mary Ann Kono, CA 

Jan Koopman, MI 

Mark Koppel, MI 

Sister Gloria Korhonen OP, 

MI 

Father E Skip Koritzer, MD 

Rabbi Audrey Korotkin, PA 

Deacon Sharon Kosek, MO 

Kate Kosse, AZ 

Steven Kranowski, VA 

Martha Kransdorf, MI 

Judith Kratzke, IL 

AI Krause, NY 

Jessica Krawec, NY 

Dwight Krehbiel, KS 

George Krikorian, MA 

Nancy Krody, PA 

Stephen Krokowski, AR 

Jenny Kropf, MI 

Vicky Krulic, MO 

Karen Krumbach, MI 

Virginia Krutilek, CA 

Chris Kubiak, IL 

Kathleen Kuczynski, CA 

Gilbert Kudrin, OH 

R. Kuenstler, TX 

Deacon Marty Kuhn, OH 

Jennifer Kuhn, OH 

Walt Kuhn, OH 

Monica Kulaga, MI 

Gerrie Kunin, CA 

Paula Kursh, CA 

Katherine Kurzius, NY 

Andrew Kurzweil, NY 

Robert Kuzma, CA 

Peter Kwass, MA 

Stephanie Kyle, NY 

Lana La Fata, MO 

Pastor Damon Laaker, NE 

Kevin Labadie, OH 

Michael Lagana, NY 

Jane Lagas, CA 

Douglas Laing, DC 

linda laisure, CA 

Danna Lamb-Vines, TX 

Martha Lammers, TN 

Dong Landau, FL 

michael Iandess. IL 

Cathy Lane, ME 

Rebecca Lang, KS 

Lynn C. Lang, MN 

Pastor Theresa Langdon, MD 

Sister Jarryl Larson, ME 

Christina Larson, TX 

Judith Lasko, NY 

Sharon Lasman, CA 

Doxie Lauer, OH 

Don Laufersweiler, OH 

Liana Laughlin, MA 

Lue Lauretano, CT 

Deb Laurion, CO 

Fred Lavy, VA 

Carol Lawrence, CA 

Robert Lawrence, CA 

Emily Lawion, W A 

James Le Blanc, TX 

Maccie Leach, CA 

Mary Leach, MD 

Vlk Leafe, NC 

Odilia Leal-McBride, TX 

William Leavy, NM 

Roanne LeBrun, HI 

Nancy Leclerc, NH 

Russell Leclerc, SC 

Jessica Lederman, NJ 

Lawrence Lee, CA 

Christopher Lee, IL 

Calvin Lee, MO 

Sherry Lee, SC 

Jim Lee, TX 

Deborah Leff, PA 
172 


KING-6430 with DISTILLERInsert offset folio 111 here 23645.111

Louise Leger, MO 

Charlotte Lehmann, MA 

Kalista Lehrer, NY 

lynda leigh, CA 

FRED LEISS, CT 

Tammy Lemmer, MI 

Kathryn LeMosy, IL 

Lisa Leonard, MN 

E.A. Leone, CA 

Howard Lcpzcltcr, NY 

Michele Leschi, FL 

Michael Leslie, CA 

Leann Lesperance, NY 

Laurie Lessner, MA 

David Lester, GA 

Patricia Lestz, CA 

Kiu Leung, WI 

Mother Carole Levine, IL 

Rhoda Levine, NY 

Asher Levine, VT 

Bonnie Levitt, AZ 

Rabbi Eugene Levy, AR 

Pastor Miryam Levy, NM 

Russell Lewis, CA 

Rose Lewis, Ml 

Reverend Jacqueline Lewis, 

NY 

Karen Liao, CA 

Joanna Liao, NY 

Lester Libby, CA 

Rabbi Elias Lieberman, MA 

Cecilia Lieder, MN 

Rachel Lighter, IN 

David Liles, TX 

Bryan Lilienkamp, IN 

John Limbach, WI 

James Lin, NM 

Jan Lindemann, Ny 

Bob Lindhart, Mn 

Sakari Lindhen, WI 

Diane Lindner, FL 

Minister Donna Lindsey, CA 

Mary Linduska, CA 

Barbara Linsley, NY 

Beverly Linton, MA 

Robert Linzmeier, IL 

Michael Lipinski, CA 

Pearl Lipner, CA 

Minister Cynthia Lippert, AZ 

Timothy Lippert, GA 

Bishop Calvin Lippitt, P A 

Rabbi Ellen Lippmann, NY 

Alice Lipscomb, WI 

Dina Lisovskis, WI 

JOSEPH LITE, OH 

Catherine Lite!, CA 

Mary Litel-Walsh, CA 

Dorothy Lockhart, KY 

Saab Lofton, W A 

Arlene Lokomowitz, NY 

Michael Lombardi, P A 

Leland Long, CO 

Marilyn Long, MO 

Adam Loomis, NY 

Casey Lopata, NY 

A. LOPOUR, MN 

Stephen Lott, l\lV 

Ilsa Lottes, MD 

Ray Lou, WA 

Reverend Rev. Dr. Cindi 

Love, VA 

Kathleen Lovell, NY 

Sammy Low, WA 

Susanne Loyd, NM 

Phyllis Lu, NJ 

Donna Lucero, CO 

Frederick Lucies, FL 

Paul Lukasiewicz, MI 

Priest Keth Luke, FL 

Karen Lull, CA 

Reverend Marty Luna-Wolfe, 

AZ 

Bernice Luppino, NY 

Isaac Luria, NY 

Renee Lusian, CA 

JoAnne Lusk, AZ 

Jayson Luu, WA 

Lori Lyles, MI 

Michal Lynch, CA 

James Lynch, NY 

Larry Lynch, PA 

Minister Barry LYJm, MD 

Jeremy Lyons, CA 

Deborah Lyons, PA 

Symone Ma, IA 

Lea Mac Leod, NY 

Maureen Macchio, TX 

SARA MACDONALD, CA 

Sylvia Mace, NY 

James Maceda, NY 

Shari MacFarlane, FL 

Sister Therese MacKenzie, IL 

Judith Mackenzie, MN 

Bonnie Lynn MacKinnon, TX 

John MacLean, NY 

Sister Michele MacMillan, 

OP,WA 

Jessica Madsen, OH 

Kira Maffett, NJ 

Lilithe Magdalene, CA 

Maureen Magee, CA 

Minister Sue Magidson, CA 

Kathy Magne, MN 

Mary Maida, NY 

Barbara Mail, P A 

Janet Maker, CA 

Mark Makkonen, WI 

Jillian Malcomb, LA 

Frank Mallalieu, TX 

William Malmros, NY 

Rosalind Malone, CA 

Sue Malone, MA 

Priest Linda Maloney, VT 

Fran Malshcimcr, NY 

Clare Mancini, W A 

Mark Mandel, MI 

Louise Mann, VA 

Deacon Rosa Manriquez, 

IHM,CA 

Amber Manske, TX 

Anne Manton, MA 

Anita Manuel, VA 

Sister Mary Manz, NY 

Thomas Marcella, MA 

Crystal Marcwn, CA 

Jack David Marcus, NY 

Angela Marczewski, NY 

Lee Margulies, NY 

Eugene Mariani, P A 

Jill Marie, 1'-i"Y 

Mariposarojo Mariposarojo, 

FL 

Michael Markic, OH 

Pastor Lilton Marks, VA 
173 


KING-6430 with DISTILLERInsert offset folio 112 here 23645.112

Jeanne Marlowe, OH 

Holly Marple, MA 

Beverly Marrero, TN 

Mr. LaVern Marshall, WI 

Michele Marta, CA 

Gabe Martin, AR 

Glenn Martin, CA 

John Martin, IL 

Rose Martin, IL 

Michael Martin, IL 

Heather Martin. IN 

Minister Edwin Martin, MN 

David L Martin, P A 

Shari Martin, TX 

Dor Martin, WI 

Kellie Martindale, CO 

Mili Martiz-White, MI 

Frank Marwood, CA 

Erik MARZANO, NY 

Mark Masdal, GA 

Sheldon A Maskin, FL 

Linda Mason, MI 

Nancy Massaro, NY 

Gwen Mataisz, CO 

Rabbi Jacqueline MatesMuchin, CA 

Sharon Mathews, VA 

Ellen Mati, FL 

Mari Matsumoto, CA 

Martha Mattes, OK 

Diane Matthew, PA 

Janet Matthews. NY 

Mark Matthies, W A 

Caryl Mauk, TX 

Elizabeth Maus, MN 

Leo MavTovitis, NY 

Reverend Suzanne Maxwell, 

CA 

Marsha Maxwell, CA 

Brother Cory Maxwell, MO 

Reverend Susan Maybeck, NY 

David Mayer, W A 

Reverend Rev Fran Mayes, MI 

Mother Donna Mayotte, MN 

Janet Mazziotti, MA 

Ed Mazzu, TX 

Frank and Bonnie Me Cune, 

FL 

Ronnie Me Millian, NJ 

Bryan McAnally, P A 

Kevin McAndrews, IN 

Margo McAuliffe, CA 

Timothy McBride, NJ 

Ellen McCabe, W A 

Bobby Mccaig-Curnutt, NY 

Doreen McCammon, CA 

Reverend Sarah McCann, MO 

Dale McCart, CA 

Kathleen McCarthy, CA 

Julie McCarthy, CO 

Elizabeth McCarthy, W A 

Robert McCauley, CA 

Edith McCausland, MA 

Brother Mitchell McClure, TN 

Annie McCombs, MI 

Robert McCormick, FL 

Eileen McCorry, NY 

Brent McCoy, CA 

Reverend Jill McCrory, MD 

Reverend Jean McCusker, SD 

Rowena McDade, NY 

marni mcdaniel, AZ 

John McDevitt, PA 

C. Michael McDonnell, MO 

Minister Linda McDowell, AZ 

Carole McElhannon, GA 

Kerry McElroy-Barnes, MI 

Larry and Deborah McFatter, 

CA 

Nan McFerren, FL 

Daniel McGinnis, MA 

Kathy Mcginnis-Craft, TN 

Colleen McGlone, FL 

Donlon Mcgovern, OR 

Victoria McGrady, TX 

Sister Mary Mcgrory, NY 

Michelle McKay, VA 

Jean McKee, CA 

Mother Christianne McKee, 

WA 

Mike McKenna, MA 

Todd McKenney, WA 

John McKenzie, MN 

Reverend Rodney McKenzie, 

NY 

Bill McKenzie, W A 

Nicole mckinzie, NV 

Pastor Brian McLaren, FL 

Julie McLauchlin, IL 

Dee McLaughlin, MD 

Minister Patrick McLaughlin, 

NH 

Alan McLemore, TX 

Nancy McLoughlin, CA 

Cindy McMullan, IL 

Sharon McNeil, NE 

Katherine McNeill, CA 

Alex McNeill, MD 

Barbara McNichol-Miles, OR 

Regina McPhillips, MD 

Minister Joe McQuiston, W A 

Mary McRae, MA 

Reverend Barb McRae, MI 

Megan McShea, MD 

Kathleen McSweeney, VA 

Dennis McWilliams, FL 

John Meany, IL 

MargaretMear, IA 

Anna Medrano, NY 

Margie Medrano, TX 

Alex Meek, TX 

Tobias Meeker, CA 

Daniel Meenan, MD 

Amanda Mefford, KY 

Ginger Megley, CA 

Siddharth Mehrotra, CA 

John Meier, TX 

Minister Marianna Mejia, CA 

Carmen Mejia, CA 

Catherine Mekus, KY 

Reverend Kristen Melcher, TX 

Amy Melena, OH 

Ella Melik, W A 

Rosanne Mello, FL 

James Melloh MD, ME 

Ronald Meltzer, NY 

David Melzer, IL 

Ellen Mendelsohn, NJ 

M.L. Menikheim, MN 

Deborah Mensch, CO 

Julie Merklin, KS 

Janice Mer!, IL 

Mary Mero, WI 

Esther Merono, NY 
174 


KING-6430 with DISTILLERInsert offset folio 113 here 23645.113

Rabbi Jo Merrick, W A 

Julie Merrill, CA 

Mary Merriman, P A 

Pastor James Merritt, FL 

Kelli Messer, NC 

Scott Messick, NM 

Marie Messina, NY 

Ethel Messuri, OH 

Renee Mestad, NY 

Zak Mettger, Rl 

Frank Meuers, MN 

Pastor Emily Meyer, MN 

Ed Meyer, NY 

Roger A Meyer, PhD, TN 

Cindy Meyers, CA 

Rabbi Sarah Meytin, MD 

Lucas Michael, NY 

Kristin Michael, W A 

Ken Michaels, IL 

Sue Michalson, FL 

Priest Lawrence Mick, OH 

Kathy Middleton, AR 

Desiree Middleton, FL 

Carlos Milan, FL 

Alan Miles, OR 

George Milkowski, IL 

Reverend Craig Miller, AZ 

Victoria Miller, CA 

Phyllis Miller, MA 

Larry Miller, MD 

Laurie Miller, MD 

Andrea Miller, MN 

Carol Miller, MN 

Michelle Miller, MN 

Robert Miller, MT 

Reverend Christopher Miller, 

NJ 

Keith Miller, TX 

Minister Dr. Ralph W. 

Milligan,NC 

Reverend Grady Mills, GA 

Henry Millstein, CA 

Christine Milne, CA 

Richard Mindar, HI 

Paulette Mirfield, CA 

Gisele Misieczko, NJ 

John Miskelly, MA 

Mark Misrok, NY 

Jonathan Mitchell, AL 

Colleen Mitchell, CA 

Emerson Mitchell, CA 

Melissa Mitchell, MA 

Darren Mitton, GA 

Pastor Rev. Dr. Charles Mize, 

IL 

Rebecca Mochocki, WI 

Ross Modlin, CA 

Lopamudra Mohanty, MO 

Jess Moleano, PA 

Bianca Molgora, CA 

Rabbi Jack Moline, DC 

Danielle Mollet, NV 

Reverend Joellynn Monahan, 

CA 

Javon Monahan, W A 

Lisa mondori, CA 

Dan Mondragon, CO 

Michael Monroe, MA 

David Monroe, OH 

Kathleen Montross, NY 

Michelle Montroy, IL 

Priest John Moody, NY 

Pat Moore, CA 

Carole Moore, FL 

Linda Moore, ID 

Kathy Moore, MA 

Abigail Moore, MD 

Brian Moore, P A 

Claire Moore, W A 

Sally Moore Goldman, OR 

Linda Moorman, IL 

Charlie Moorman, OH 

Cosme Morales, CA 

Judy Moran, FL 

Rose Marie Moran, IL 

Pablo Moreno, IA 

Marilyn Morgan, CA 

Patricia Morgan, OH 

Patricia A Morgan, P A 

Ann Moriarity, MO 

David Morris, CA 

Kristine Morris, MI 

Bert Morris, NJ 

Jane Morris, TN 

Margaret Morrison, CA 

John Morrison, MO 

Donald Morrison, VT 

Christine Morrissey, WI 

Eric Morrow, KY 

Joan Mortenson, CA 

Lesley Mortimer, NM 

Holly Mosher, CA 

Mary Mosley, MO 

Priest Nicholas Mosunic, PA 

John Moszyk, MO 

David Motz, IN 

Reverend Leslie Moughty, 

MN 

Martha Mountain, DC 

Deacon Helen Mountford, CA 

John Moylan, CA 

Margaret Moysan, OH 

Stephen Mudrick, MO 

Reverend Donald Mueller, CA 

Justin Mueller, NY 

Pete Muenks, OH 

Nancy Mugridge, CA 

Minister Marilyn Muir, FL 

Pat Mulawka, WA 

James Mulcare, W A 

Kathleen Mulhall, MA 

Marcus Mulkins, CA 

Marilyn Mullane, MA 

Lois A Mullen, FL 

Timothy Mullen, MN 

Rabbi Bronwen Mullin, NY 

Danette Mulrine, CA 

Lori Mulvey, MI 

Lauren Murdock, CA 

Jeunifer Murphy, NY 

Michael Murphy, NY 

Lisa Murphy, TN 

Lois Murphy, WI 

Mary Murray, FL 

Sheila Murray, IL 

Rosemary Murray, P A 

Lee Murray, WA 

Sandra Myers, CT 

David Myers, MA 

Julie Myers, WA 

Pamela Myhree, FL 

Rabbi Beth Naditch, MA 

Reverend Elizabeth Nash, TX 

Eric Nau, NY 
175 


KING-6430 with DISTILLERInsert offset folio 114 here 23645.114

Jennifer Naughton, CA 

Judith Navetta, NJ 

Paul Naylor, NC 

Sue Nearing, MI 

Margaret Needham, NJ 

Robert Nehmad, HI 

Pastor Arlene Nehring, CA 

Roger Nehring, SD 

Allen Nellis, OR 

Pastor David Nelsestuen, WI 

Doris Nelson, CA 

John Nelson, NY 

Pastor Ray Nelson, TX 

Robert Neuhauser, P A 

Madge Neuheisel, WI 

Midge Neuman, TX 

Minister Brian Newcomb, OH 

Reverend Brooke Newell, NY 

Margaret Newman, AZ 

Dianora Niccolini, NY 

Dana Nichol, KS 

JilJ Nicholas, NY 

David S. Nichols, OR 

Deacon Frances Nicholson, 

CA 

Blanche Nicholson, FL 

John Nickum, AZ 

Sister CAROLYN NICOLAI, 

AZ 

Cathy Nieman, NC 

Wanda Niemi, OR 

Elaine Niketas, SC 

Earll Nikkel, CO 

philip nirchi, TX 

June Nirschl, WI 

Letitia Noel, IL 

Pamela Nordhof, MI 

Doris Ann Norris, OH 

Priest Susan Norris, VA 

Pastor David north, MD 

Kristen Norton, CA 

Ruth Norton, NH 

Patrick Norton, NH 

Russell Novkov, WI 

Suza1me Null, NC 

Tom Nulty Jr, CA 

Debbie Nuss, KS 

laura nutini, IL 

Nancy Nydegger, W A 

Julia Nye, NH 

Catherine Oakley, NC 

Minister Catherine Oberg, W A 

Nancy Obermueller, IA 

Matthew Obrien, IL 

Eileen O'Brien, MA 

Priest Roger O'Brien, W A 

Nancy O'Byrne, FL 

Minister Colleen OConnell, 

WA 

Maureen O'Connell, FL 

Jeffrey ODonnell, IA 

John ODonnell, MN 

Dawn ODonnell, NY 

Minister Sarah Oelberg, WI 

Laura M. Ohanian, OR 

Sharon O'Hara-Bruce, MI 

Keith Ohler, CO 

Deacon George Olds, FL 

Reverend Andy Olivo, DC 

Dennis Olsen, lL 

Reverend Donna Olsen, MN 

Meredith Olson, IL 

Maureen O'Neal, OR 

Sylvia Oothoudt, SD 

Dianne Ordog, MA 

Michelle Orengo-McFarlane, 

CA 

Patricia Orlinski, AZ 

Robert Orndorff, OK 

Kevin O'Rourke, NY 

Cheryl Ortega, CA 

Isabel Ortiz, OR 

Cici Ortiz, TX 

Ina Osborn, IL 

MARJL YN OSBORNE, MI 

Alex Oshiro, HI 

Nathan Osmun, OH 

Maryjo & Ed Osowski, IL 

Susan Ostlie, NM 

Deacon Colleen Ott, P A 

Reverend Rich Ottcnstroer, NJ 

Cindy Owens, CA 

Rosemarie Pace, NY 

Beverly Page, OR 

John Page Jr., W A 

C. Rynne Pages, MA 

Carol J. Painter, Ph.D., NY 

Michael Pajak, NJ 

Priest Joseph Palacios, CA 

danielle palermo, MA 

Michele Palermo, NJ 

Angela Palmisano, FL 

Taylor Pancoast, NY 

Marcia Panebianco, P A 

Lynda Pantoja, FL 

Minister Stephan Papa, CO 

John Papandrea, NY 

Alan Papscun, MA 

Lindsay Park, IA 

George Park, P A 

Martha Parker, CA 

Minister Jane Parker, KY 

Priest Dennis james Sagun 

Parker, OR 

Ed Parks, OK 

William Parr, MA 

Angie Parris, VA 

Minister Harry Parrott, FL 

Adina Parsley, WA 

Barbara Parsons, WI 

Gayle partmann, CA 

Robin Pasholk, WI 

Jacqueline Pasternack, OH 

Sandy Pate, IN 

Peggy Patrick, KY 

Robin Patryas, AZ 

Grace Patterson, NY 

Patricia Patterson, NY 

Mars Patterson, OH 

Frances Patton, VA 

Reverend Jennifet Paty, ME 

Elizabeth Paulson, MN 

Bruce Peacock, CA 

pHarold Pearce, ID 

Linda Pearce, TN 

Dana Pearl, IL 

Deacon Patlicia Pearson, CA 

Tia Pearson, HI 

John S Pearson, IL 

Brother Stephen Peck, VA 

Susan Pederson, NY 

Susan Pederson, VA 

Bob Pedretti, CA 

Reverend Debra Peevey, AZ 
176 


KING-6430 with DISTILLERInsert offset folio 115 here 23645.115

Jamie Peffley, AZ 

Suzanne Pel±a, CA 

William Pell, NJ 

Virginia Pence, NY 

Jessica Penner, 1\'Y 

Teresita Perez, FL 

Guy Perkins, NV 

Yuka Persico, CA 

Rabbi Jonah Pesner, DC 

Rabbi April Peters, NY 

Sandra Petersen, MI 

Minister Katy Peterson, FL 

Richard Peterson, IL 

Kyle Peterson, MI 

John Peterson, MN 

Charlie Peterson, NY 

Cathy Peterson, WI 

Patricia Petit, GA 

Jim Petkiewicz, CA 

Jasmin Pettie, CA 

Carolyn Petty, GA 

James Pfitzner, NY 

Jess Pfitzner, NY 

George Phillips, NC 

Joseph Picardi, NJ 

Don Pickett, NY 

Janice Pierce, CA 

Martha and Robert Pierce, NY 

Pastor Lothar Pietz, ID 

Jill Pigza, VA 

Hal Pillinger, NY 

Paul Pineda, TX 

Juliann Pinto, P A 

Janna Piper, OR 

Cynthia Piscatelli, CT 

Jeffrey Plate, MA 

Mary Pleier, OR 

James Ploger, WA 

Reverend David Plummer, VA 

John Poblocki, CA 

Rabbi Robin Podolsky, CA 

Robert Podzikowski, MI 

Minister Larry Pogue, TX 

Denis Poirier, TX 

Sister Ellen Poist, PA 

Jared Po lens, MA 

Bret Polish, CA 

Beverly Poncia, CA 

Priest Stina Pope, CA 

Reverend Thomas Pope, TX 

Barbara Porter, NY 

Alexander Porter III, W A 

Dianne Post, AZ 

Nancy Potter, CA 

William Potts, P A 

Priest Michael Potvin-Frost, 

NY 

David Powell, NY 

Peggy Powell, TX 

Lora Powell-Haney, MD 

Patrick Power, O.N.Z.M., VT 

Joe Pratt, CA 

John Prescott, CA 

Denise Pretet, IL 

Priest Raymond Price, WY 

Meghan Prior, NC 

Reverend Geraldine Proctor, 

MO 

Betty Prout, OH 

Sharon Provost, NH 

Clifford Provost, NY 

Carol Prndom, VA 

Patricia Pruitt, IL 

Geoffrey Pruitt, MO 

Donald Prycer, TX 

Kendra Pugh, MA 

Walter Punch, MA 

Ashwin Purohit, MA 

Johanna Purwin, PA 

Robert Puscheck, MI 

Joyce Pusel, NC 

Marian Quenneville, FL 

Jennifer Quick, P A 

Eugene Quindlen, TX 

Carcn Rabinowitz, NY 

Steve Radcliffe, OR 

Janice Rae!, NJ 

Michael Raffety, IL 

Stewart Rahtz, NY 

Charles Railsback, IN 

Dennis Raines, FL 

Pastor Rev. Beth Rakestraw, 

MI 

Julianne Ramaker, OR 

India Ramey, TN 

Francisco Ramirez, AZ 

Linda Ramsden, MA 

Deacon Walter Ramsey, CA 

Mary Randa, MN 

Mother Kathleen Randall, W A 

Minister Sheri Randolph, CA 

Eric Ranvig, MA 

Diane Rapozo, lA 

Joyce Ratner, TX 

Alexandra Rausch, MD 

Pastor Gale Rawson, AZ 

David Raybould, CA 

Sandra Raymond, MA 

Daniel Rebb, MI 

Pastor Kathy Redig, MN 

Bob Redig, MN 

Ma1yellen Redish, CA 

Melissa Redman, FL 

Bill Redman, NY 

Richard Reed, CA 

Debby Reelitz, CT 

Ronald Reeser, TX 

Minister Donna Reeves, LA 

Catherine Regan, CA 

Debra Rehn, OR 

Minister Wilma Reichard, CA 

Linda Reilly, W A 

Mary Reimer, CA 

Maureen Reimer, CA 

Donald Reinke, WA 

Irma Reiss, IL 

Frederick Remus, NY 

Edward Rengers, NY 

Mara Rennie, ME 

Reverend Rev. David Reppert, 

PA 

Elaine Rettig, WI 

Bonnie Reukauf, ID 

Michelle Reyf, NY 

Yolanda Reynolds, CA 

Michele Reynolds, MI 

Theresa Reynolds, NJ 

Rabbi Mackenzie Reynolds, 

PA 

Steven Rhodes, IL 

Melanie Ricaurte, MD 

Charles Rice, CA 

Beverly Rice, NY 
177 


KING-6430 with DISTILLERInsert offset folio 116 here 23645.116

Michael C. Ford and Richard 

B. Marks, CA 

Priest Rv. R. Richburg, NY 

Jacqueline Richey, PA 

Paul Richey, P A 

John Richkus, NJ 

Sally Riddle, GA 

Patty Ridenour, OH 

Barbara Rideout, P A 

Priest Paul Rider, MN 

Anthony Riley, CA 

Michael Riley, MA 

Debbie Rinaldi, 1'-.'Y 

Roger Rines, CA 

Susan Ring, W A 

Mark RingswaldEgan, OH 

Robert Rink, OH 

Paul Ripley, CA 

Rita Rippetoe, CA 

Clare Ritchie, MA 

Pastor James Ritchie, P A 

Marvin Ritzenthaler, NY 

Russell Rivenburg, FL 

!vet Rivera, AZ 

Sergio Rivera, IL 

Javier Rivera, NY 

Robert Rivera, NY 

David Rivers, MN 

Krystal Roach, 1'-.'Y 

Christine Roane, MA 

Priest Mary Robert, AL 

Claudia Roberts, OR 

Rex Roberts, W A 

Jennifer Roberts Ratliff, TX 

Merilie Robertson, CA 

Leah Anna Robertson, FL 

Dianne Robertson, MN 

Harold Robinson, AL 

Jan Robinson, CA 

John Robinson, CT 

Bishop Gene Robinson, DC 

Barbara Robinson, MD 

Marty Robinson, OR 

Patricia Robison, CA 

Patricia Roche, MD 

Peter Roche, NM 

Jodi Rodar, MA 

Rolf Rodefeld, WI 

Frank Roder, FL 

Margaret Rodgers, W A 

Jeri Rodrick, CO 

Carlos Rodriguez, NY 

Lourdes Rodriguez-Nogues, 

Ed.D,MA 

Mark Roeder, IN 

Kristi Roen, MN 

John Rokas, MI 

Alfredo Roldan-Flores, MA 

Samuel roman, OH 

Abiel Romero, TX 

Cecilia Romska, FL 

Penny Ronning, MT 

Richard rooney, MD 

Lynne Rooney-Katsma, IL 

Angela Roquemore, IL 

Dan Rose, CA 

Gregg Rose, MA 

Lori Rose, VA 

Bob Rosen, NC 

Rabbi James Rosenberg, RI 

Janet Rosenbury, lA 

Richard Rosendall, DC 

Barbara Roscnkotter, W A 

Rabbi David Rosenn, NY 

Sally Rosoff, CA 

Priest George Ross, CA 

Darlene Ross, CA 

Reverend Lynette Ross, TX 

Tom Rossen, IL 

Deacon Thomas Rossi, CA 

Mitzi Rothman, GA 

Emily Rothman, NM 

Gerry Roy, CA 

Noelle Royer, W A 

Sherrie Rozniecki, OH 

Edward Rubin, MA 

Rochellr Rubin, NY 

Allan Rubin, TX 

Gayle Ruedi, NC 

Margaret Runchey, FL 

Jennie Runde, CA 

Debbie Dumas Runge, AR 

Snicdze Rungis, MI 

Leola Russell, KS 

Paulinha Russell, NM 

Rachel Russell, OH 

Scott Russell, W A 

Jeanette Ruyle, MA 

Reverend Cheryl Ryder, NM 

Judith rymer, NY 

Mark Rynearson, NY 

Frank Sabelli, MA 

Thomas Sager, CA 

Bonnie Salatti, CO 

Rex Saldana, CA 

Dorothy Sale, WA 

Cecelia Samp, IL 

Linda Samuel, ID 

Marte Samuelstuen, NY 

Priest Calvin Sanborn, ME 

Sister Elaine Sanchez, CA 

Elias Sanchez, VA 

Judith Sandeen, NE 

Susan Sanders, AZ 

~athan Sanford, MA 

Ellen Sanford, MT 

Mary Santry, MA 

Fred Sapulpa, OK 

Michael Sarabia, CA 

Marijeanne Sarraille, CA 

Linda Sarsour, NY 

Deanna Sarvis, MI 

Tim Sauke, WA 

Caroline Savage, IN 

Cindy Savage-King, MA 

Pancho Savery, OR 

Adam Savett, OH 

Peggy Savides, WI 

Christine Savini, MA 

Mary Sawers, OH 

Rabbi Jeffrey Saxe, VA 

Frances Scalise, P A 

Kate Scalzi, MI 

Llee And Sue Scarborough, 

TX 

Mike Scarlatti, RI 

Emily Schaeffer, CA 

Kevin Schafer, IN 

Matthew Schaut, MN 

Barbara Scheer, NM 

Edward Scheid, P A 

Jeanie Schexnayder, CA 

Risa Schiff, NY 

Jennifer Schilling, CA 
178 


KING-6430 with DISTILLERInsert offset folio 117 here 23645.117

Nancy Schilling, IL 

Mary Schiltz, IL 

Judy Schindler, lL 

Sister Claudette Schiratti, 

RSM,MO 

Susan Schirber, MN 

Arlene Schier, MD 

Reverend Anne Schlesinger, 

CA 

William Schlesinger, CA 

The Rev Dr Rick Schlosser, 

CA 

Paul Schmalzer, FL 

Max Schmid, NY 

Ron Schmidt, CA 

John Schmidt, GA 

Reverend Dave Schmidt, IN 

Gerhard Schmitz, IL 

Erik Schnabel, CA 

Karl Schneider, OK 

Robin Sclmell, NY 

Pat Schoch, FL 

Pastor King Schoenfeld, MO 

Paula Schoenwether, FL 

Robert Schofer, KS 

Susan & Tim Scholl, MO 

Barbara Scholl, OH 

Reverend Roger Schomburg, 

MO 

Linda Schoppert, CA 

John& Nikki 

Schropp/Windsor, MD 

Reverend Michael 

Schuenemeyer, OH 

Regina Schulte, WI 

Karl Schultz, CA 

Minister Ralph Schultz, WI 

Paul Schumacher, MN 

Jeff Schumacher, MO 

Susan Schwab, OR 

Carolyn Schwalbe, MD 

Henry Schwan, CA 

Judy Schwartz, FL 

Sister Veronica Schwcyen, 

MD 

Richard G Scoby, WI 

David Scott, CO 

Barbara Scott, SC 

James-Michael Scott, TN 

Rachel Scott, WI 

P Scoville, NJ 

Patricia Scully, CA 

Kathleen Sea, GA 

Judith Seaboyer, ME 

Cecilia Seabrook, IL 

Michael Seager, OH 

Richard Searles, TX 

Joann Seaver, CA 

Joshua Seff, TX 

Cantor Lisa B Segal, NY 

Emily Seger, OH 

John Seibert, OH 

Carl Seiler, TX 

Rob Seltzer, CA 

Priest Irene Senn, WI 

Peter Sergienko, OR 

Susan Setteducato, NY 

Elizabeth Sexton. AZ 

Mary Seymour, AZ 

Susan Shaak, P A 

Judy Shackelford, Ml 

Francine Shacter, AZ 

Daphne Shafer-Repass, MD 

William Shalongo, MA 

Reverend Jolurnette Shane, 

MO 

Georgia Shankel, lL 

Karen Sharp, CA 

JoAnne Sharp, TX 

Deacon Donna Shaw, CA 

Parker Shaw, SC 

David Shea, MN 

Ruth Sheets, PA 

Cathleen Sheil-Hopper, TX 

Charles Shelton, VA 

Lenore Sheridan, CA 

Leslie Sheridan, CA 

Brynne Sheriff, OR 

Joanne Sherman, WA 

Janet Sherwood, MA 

Maggie Shields, MA 

Lynn Shipley, IN 

Martha Shogren, CA 

Jane Shoji, CA 

Lisa Shook, lL 

Reverend Joseph Shore-Goss, 

CA 

Duane Short, IA 

Reverend Merle Showers, NY 

Darren Showers, NY 

Julia Shpirt, NY 

Rick Shreve, CA 

Abby Shuman, MA 

Anna Sichmeller, NE 

Christianna Sigliano, NY 

Ramona Silipo, CA 

Geraldine Sillery, CA 

Karissa Silver, DC 

Margaret Silvers, NC 

Kevin Silvey, FL 

Reverend Gail Simonds, OR 

Donald Singer, CO 

Nancy L Singham, IL 

Jon Singleton, NY 

James Sipocz, IN 

Julie Skelton, MI 

Carla Skidmore, MA 

Patti Skorupka, P A 

Lory Skwerer, NY 

Sandi Skwor, FL 

Brother Jerry Skyles, OR 

Thomas Slabaugh, CA 

Julie Slater-Giglioli, CA 

Marie Slattery, NY 

Cassandra Slattery, UT 

W Michael Slattery, WI 

Peter Sluka, IL 

Barbara And Gordon Small, 

CA 

David-Allen Smith, AZ 

David A. Smith, CA 

Ed Smith, CA 

Indira Smith, CA 

Brian Smith, CT 

Todd Smith, GA 

Lilinoe Smith, HI 

Mike Smith, IL 

Ashanta Smith, MA 

Frank Smith, MA 

Sarah Smith, ME 

Jeanne Smith, MO 

Sue Smith, NC 

Kellie Smith, NH 
179 


KING-6430 with DISTILLERInsert offset folio 118 here 23645.118

Anita Smith, NY 

Brother Paul Smith, TX 

Mark Smith, TX 

Jan Smith, UT 

Angela Smith, WA 

Mindy Smith, W A 

Priest Rev Fr Andrew Smith, 

WI 

Paula Smith, WI 

Julie Smitj, MI 

Amanda Smock, NY 

Anne Smoth, IL 

Beverly Smrha, CA 

Laurie Smyla, NY 

Julie Snave, IL 

Shondra Snodderly, MO 

Pamela Snow Sweetser, ME 

Pastor Linda Snyder, NH 

JeanE Snyder, P A 

Mark Soenkscn, IA 

Erika Soliz, CA 

Jennifer Solodow, IN 

Lauren Solomon, CA 

Steven Solomon, CA 

Stephanie Somers, VA 

Linda Sommer, CA 

Mary Sommer, NJ 

Elisabeth Sommer, TX 

Elizabeth Songalia, MN 

Chris Soucy, FL 

Reverend Susanna Southard, 

OK 

Daryl Spadaccini, W A 

Emily Speer, IN 

Priest Fr. Bob Spencer, ID 

Medard Spencer, MA 

Reverend Kim Spencer, MI 

Kathleen Spencer, MN 

Martha Spencer, NC 

Richard Spittel, MD 

Patricia Spradley, TX 

Cecilia Springer, NY 

Pastor Susan Sprowls, MI 

Julie Squire, MO 

Bonita Staas, IL 

Cathy Stackpole, ME 

Maria StahL OH 

Nancy Stamilio, TX 

Miriam Stanford-Cusack, NY 

Erica Stanojevic, CA 

Jessica Starkman, NJ 

Jeffrey Starr, WI 

Anette Stauske, MD 

Elizabeth Steele, NC 

Reverend Donald Steele, TN 

Helene Stein, MA 

Herbert Stein, NY 

John Steinbach, NY 

A.L. Steiner, NY 

Rabbi Eleanor Steinman, CA 

Lawrence Steinmetz, FL 

Linda Steiman, NJ 

Jahnavi Stenflo, CO 

Carole Stephan, FL 

Bishop Ronald Stephens, VA 

John Stcponaitis, CA 

Gloria Stepp, KY 

Reverend John Stepper!. WA 

Cynthia Sterle, MN 

William Stem, OH 

Liliane Stem, P A 

Linda Stem, TX 

Nan Stevenson, NV 

Mary Stevenson, TX 

Chad Stevick, TX 

Deacon Mary Stewart, CA 

Grady Stewart, P A 

Karen Stickney, ME 

Reverend Robert Stiefel, NH 

Pastor Christine Stiger, NJ 

Minister Theresa stirling, AZ 

Roy Stock, NY 

Lisa Stone, TX 

Carl Stonebraker, IL 

Karin Stork-Whitson, PA 

Stephanie Stout, TX 

Shari Stowell, OH 

Judy Strachan, NJ 

Debby Strauss, WI 

Mike Streber, WI 

Miriam Streicker-Hirt, CA 

Sandra Strcifel, W A 

Robert Stricker, MO 

Carolyn Strickland, AL 

Adrienne Strickland, NC 

Art and Carol Stroede, WI 

elisa stuart -wilkins, P A 

Maria Studer, NY 

Shannon Sudderth, NC 

Barbara Suder, W A 

Barbara Sullivan, IL 

Sadie SullivanGreiner, CA 

John M. Sully, OR 

Priest Joseph Summers, MI 

Kiayu Sun, CA 

Peter Supersano, NV 

Charlotte Sutherland, W A 

Robert & Helen Swab, OH 

Bishop Susan Swan, CA 

Anne Swanson, CA 

David Swanson, CA 

Helene Swanson, MA 

Dana Swanson, OK 

Scott Swanson, TX 

Tom Swem,OH 

Marianne Swenson, MA 

Reverend N Swift, MA 

Father Charles Swinehart, MI 

Gloria Switzer, MI 

Carolee Syres, KS 

Janelle Syverson, CO 

Joseph Szabo, CA 

Patricia Szabo, P A 

Paul Szcepanski, CA 

Roseanna Szilak, NY 

Julie Szlachta, CO 

Deacon Brian Szura, NJ 

Linda Szymoniak, IN 

Sonja Taeusch, OH 

Yvonne Tallent, NM 

Peter Tamblyn, GA 

Suzanne Tamiesie, CA 

Sally Tardani, MI 

Dorothy Tartaglia, MD 

Antoinette Tasker, MA 

Rabbi Rabbi Joshua Taub, TX 

Hillary Tauer, IL 

Minister Jeremy Taylor, CA 

Constance Taylor, CA 

Melvin Taylor, CA 

Carol Taylor, DE 

Nicole Taylor, NV 

Therese Taylor, OH 

Minister Richard Taylor, PA 
180 


KING-6430 with DISTILLERInsert offset folio 119 here 23645.119

Minister Kellie Taylor-White, 

TX 

John Teagle, NY 

Matthew Tedeschi, IL 

John Teevan, NJ 

Helen Templeton, IN 

Joanne Tenney, CA 

Annette Tenny, NC 

Jen Terpstra, MI 

Allen Terrill, P A 

Heinrich Tesch von Cultz II, 

FL 

Kevin Tharp, CA 

Carl Thater, FL 

Christine Thauer, NY 

Donna Thelander, OR 

Frances Thorn, NY 

James Thomas, NC 

Joanne Thomas, NY 

Dorothy Thomas, TX 

Stewart Thompson, MN 

Jan Thompson, NM 

Matthew Thompson, TX 

Aubrey Thonvold, MN 

Michael Thorson, WI 

Gerry Thsrp, IL 

Katrina Tibbs, MN 

Allison Tiefenthaler, WI 

Beverly Tiemann, AZ 

Kathryn Tinghitella, CT 

Minister Kevin Tisdol, FL 

Jeanette k Titov, NC 

Thomas Tizard, HI 

Stacey Toda, AZ 

Elaine Tokarski, MI 

Michael Tomczyszyn, CA 

Hannah Tomes, OH 

MICHAEL TOOBERT, CA 

Reverend Tory Topjian, CA 

Dave Topp, WI 

Andreia Torain, PA 

Nikki Torchia, NY 

Sharon Torrisi, CA 

Victor Tostado, CA 

Erline Towner, NH 

Peter Townsend, MA 

Dr. Darlene Townsend, WA 

James Toy, MI 

Rebecca Trammell, TX 

Norman Traum, CO 

Minister Donald Treadwell, IN 

Galen Trembath, NY 

Reverend Carol Trissell, MO 

Peggy Trivilino, NH 

Susan Trivisonno, CA 

Kathryn Trohoske, P A 

Cathy Trongeau, IL 

Catherine Trost -Steffen, IN 

Millicent Troupe, NC 

Lynn Truame, NY 

Mary Trujillo, CA 

Yunuen Trujillo, CA 

James Trujillo, CO 

Steph Trujillo, lA 

Dale Trunk, CA 

Bill Trunk, DC 

Camille Tschaggeny, OR 

Ric Tucker, MO 

Lorie Tudor, DE 

mary tulloch, IL 

Alexandra Tumarkin, NY 

Jill Turco, PA 

Carol Turner, !A 

Janice Turner, IL 

Rhonda Turner, TX 

Rob Two-Hawks, OH 

David Twombley, lA 

Art Tybor, TX 

Connie Tyler, CA 

Deacon Marcia Tyriver, CA 

David Ulibarri, IL 

James Ulisse, IL 

Minister Gloria Ulterino, NY 

Trycenia Upshaw, IN 

Sandra V. Murray, NM 

Judy Valine, NV 

Tina V a! is, IL 

Dorothy Valone, FL 

Linda van der Wal, AZ 

James Van Dinter, ID 

Adam Van Kirk, TX 

Gloria Van Lydegraf, OR 

Jane Lcathcnnan Van Praag, 

TX 

Meredith van Ry, W A 

Matt Van Stone, CA 

Eleanor Vander Haegen, PhD, 

NH 

Reverend Susan Vanderburgh, 

CA 

Reverend Karon VanGelder, 

IL 

Pastor Rev. Dr. Rosario 

Vargas, CA 

Harriett Varney, ME 

Reverend John Vaughn, NY 

Kevin Vaught, TN 

Ordell Vee, MN 

Elsie Vega, lA 

April Velasquez, IL 

Dennis Velco, FL 

Reverend Gary Vencill, ME 

Kimberly Venturella, NJ 

Theresa Vernon, CA 

Maureen Verwiel, IL 

Tracy Vetter, NE 

Pastor Beitt Vickstrom, lA 

Sister Brenda Villard, MN 

Kathryn Vinson, WA 

Rabbi Burton Visotzky, NY 

Chantel Vogel, CO 

Michael Vogt, AZ 

Dan Volpatti, P A 

Joe Volpe, CA 

Fritz Von Fleckenstein, DC 

Ruth Von Fleckenstein, DC 

Theodore Voth III, WI 

Georgene Voutila, WI 

Deborah Voves, AK 

Reverend Janice VrMeer, AZ 

Brian Waak, IL 

Kendra Waddell, AZ 

Victoria Wadman, FL 

Terry Waggle, MO 

Lois Wagner, CA 

Nancy Wagner, KS 

Elizabeth Wagner, OR 

John Wahlert, NJ 

Douglas Waldroop, MD 

Christopher Walker, AR 

Reverend Marlene Walker, IL 

Margaret Walker, IL 

Jackie Walker, MI 

Lynn Walker, OH 
181 


KING-6430 with DISTILLERInsert offset folio 120 here 23645.120

Monica Walker, WI 

Father Robert Wall, AZ 

Sally wall, MD 

Judith Walraven, MA 

Brad Walrod, NY 

Tom Walsh, CA 

Donna! Walter, AR 

Ben Walters, OH 

Hannah Walton, TX 

Thomas Wannemuehler, IN 

MjWard,CA 

Ellen Ward, ME 

Deacon Troy Faith Ward, WA 

Patricia Warden, W A 

Robert Ware, NE 

Minister Beverly Waring, MA 

M Warminski, KY 

Kelly Warner, AR 

Ken Warren, FL 

Minister Deborah Warren, NC 

Monica Warren, TX 

Ellen Wasfi, DE 

Reverend Suzanne Wasilczuk, 

MN 

Rabbi Arthur Waskow, P A 

Corinne Wasser, KY 

L)'lm Waterman, NY 

Kevin Watkins, DE 

Pastor Durrell Watkins, FL 

Diane Watson, GA 

Alex Watson, NC 

Michael Wautier, AZ 

Kim Wayne, CA 

Melanie Weaver, OH 

Barbara Weber- Chess, CT 

John Wech, AL 

James Weems, GA 

Margaret Weigle, SC 

Leslie Weinberg, CT 

Jonathan Weinberg, FL 

Rabbi Sheila Weinberg, PA 

Eric Weiner, NH 

Sharon Weiner, NY 

Larry Weingart, NY 

Priest Daniel Weir, MA 

Joseph Weiss, NY 

Minister Dave W eissbard, NY 

Ira Weissman, NY 

Craig Welker, PA 

Nic Wellington, CA 

Barry Wendell, VA 

Dolores Wenzel, NV 

Pastor Rev. Paul Werner, FL 

Reverend Dorothy Werner, IL 

Kathleen Werner, WI 

Priest Vicki Wesen, W A 

Meredith West, IL 

Reverend Traci West, NJ 

Reverend Jim Whalen, VA 

L. George Wheaton, OR 

Merrijo Wheaton, OR 

Laura Wheeler, OH 

Clare Whitbeck, MD 

D.E. Whitcomb, AZ 

Vilma White, CA 

William White, FL 

Mary White, MI 

Russell White. NE 

Judy White. OH 

Lois White, OR 

Dixie Dugan White, P A 

Priest Jane White-Hassler, CT 

Lisa Whitehead, TX 

Jaimee Whitehouse, P A 

James L. Whittier, WA 

Angus Whyte, CA 

Dan Wicht, MN 

Rabbi Nancy Wiener, NY 

Fred Wilcox, NY 

Deacon Andrew Wilcox, TX 

Laura Wilder, TX 

Sabina Wildman, CA 

Roland Wilhelmy, CA 

Loretta Wilkiams, IL 

Art Wilkinson, MN 

Rosalyn Will, NY 

Lawrence Willey, CA 

Pastor Emily Willhide, SC 

Sandra Williams, AZ 

Christina Williams, CA 

Beverly Williams, OR 

Mark Williams, P A 

Ted Williams, TX 

Terrie Williams, TX 

Rev Dr Terrye Williams, VA 

Tricia Williams, VA 

Kathleen Williams, W A 

Mary Williams, WI 

Joy Williams Schilling, CO 

Percy Williamson, CT 

Minister Anne Williamson, IN 

Barbara Williams-Pemberton, 

CA 

Richard Willis, CA 

Nan Willis, KY 

Dina Willner, NJ 

Grant Wilson, CT 

Pete Wilson, HI 

Deacon Julie Wilson. MD 

Reverend jo wilson, NC 

John Wilson, NM 

Bishop Rev. Nancy Wilson, 

NY 

David Wilson, VA 

Thomas Windberg, TX 

Dottie Wine, CA 

Marvin Wingfield, VA 

Betty Winholtz, CA 

Annetta Winkle, WI 

Travis Wirt, VA 

Barbara Wisehart, CA 

Reverend Karyn Wiseman, P A 

Stanley Witomski, PA 

Paula Witt, TN 

Judith WOelke, MI 

Marc W oersching, CA 

Harry Wohlsein, OR 

Karen Wohlwend, KS 

Priest Steve Wolf, TN 

Wayne Wolf, TX 

Dawn Wolfe, MI 

Patrick Wolff, CA 

Reverend Lois Ann Wolff, NY 

Lucille Wolford, DE 

Shayna Womack, GA 

Connie Wonder, PA 

Peter Wong, CA 

David Wood, CA 

Ian Wood, NM 

Daniel Wood, NY 

Michael Wood, OH 

Reverend Sally Woodard, NC 

Deb Word, TN 

Douglas Workman, CA 
182 


KING-6430 with DISTILLERInsert offset folio 121 here 23645.121

John Wozniak, MN 

Robert Wozniak, NJ 

Marie! Wozniak, WI 

Pastor greg wright, KY 

Kelly Wright, KY 

Esther Wright, OR 

Minister Katherine Wright, 

TX 

Charlene Wrobel, IL 

AilsaWu,MA 

Judy Wyeth, WI 

Sandra Wyman, ME 

Carol Ybarra, CA 

Pastor John F Yeaman, TX 

Bob Yeats, OR 

Jim Yerger, WI 

Colleen L. Young, CT 

Minister Elizabeth Young, IL 

Rich Yurman, CA 

Sister Alice Zachmann, MN 

Troy Zaher, MA 

Gervais Zanon, W A 

Nancy Zawadzki, P A 

Jamie Zazow, CA 

Bernice Zazow, PA 

Clair Zech, IL 

Ruth Zemek, AZ 

Brother Thomas Zerafa, MI 

Kristin Ziama, WI 

Jennifer Zielinski, P A 

Mary Zimmerman, P A 

Theodore Ziolkowski, NC 

Suzanne Zook, OR 

Michael Zuckerman, NJ 

Marcia Zuvanich, OK 
183 


KING-6430 with DISTILLERInsert offset folio 122 here 23645.122

The Honorable Jason Chaffetz 

Chairman 

HUMAN 

RIGHTS 

CAMPAJG:--r« 

Committee on Oversight and Government Reform 

U.S. House of Representatives 

Washington, D.C. 20515 

The Honorable Elijah Cummings 

Ranking Member 

Committee on Oversight and Government Reform 

U.S. House of Representatives 

Washington, D.C. 20515 

Dear Chairman Chaffetz and Ranking Member Cummings, 

July 8, 2016 

On behalf of the Human Rights Campaign's 1.5 million members and supporters nationwide I 

write to express deep concern regarding the First Amendment Defense Act (FADA, H.R. 2802/S. 

1598). Despite its purported protection of one of our nation's dearest and founding principles, 

F ADA is nothing more than a veiled attempt to allow discrimination against lesbian, gay, 

bisexual, and transgender people with U.S. tax dollars. This disingenuous attempt to reframe 

federally sanctioned discrimination as essential free exercise is truly un-American and threatens 

to tarnish the spirit of the First Amendment. We write today in defense of the principles of 

freedom behind the Bill of Rights and of the people who need them the most. 

FADA seeks to foster state sanctioned discrimination under the guise of religious liberty. The 

bill's broad, overreaching language would not only prevent the federal government from 

combatting harmful discrimination, but could mandate it. Under tbis bill, organizations and 

businesses contracting with the federal government or receiving federal grants could circumvent 

federal protections designed to protect same-sex couples and their families. For example, despite 

clear nondiscrimination policies, this bill would require the federal government to continue to 

contract with a business with a record of discriminatory employment practices against married 

gays and lesbians if that employer cited their objection to same-sex marriage as a the reason for 

the discrimination. 

FADA would undoubtedly limit access to federal lifeline programs and protections for those who 

need them the most. Although same-sex couples are protected under federal regulation, under 

FADA a hospital could state that allowing a husband or wife to visit an ill or dying same-sex 

spouse would be a violation of their religious liberty. An organization receiving funding from 

WORKING FOR LESBIAN, GAY, BISEXUAL, TRANSGENDER AND QUEER EQUAL RIGHTS 

1640 RIIODF.]SLAND AVE., N.W., WASII!NGTON, D.C. 20036 

?202-628-4160 I F202-423-286ll HRC@HRC ORG 
184 


KING-6430 with DISTILLERInsert offset folio 123 here 23645.123

the Department of Housing and Urban Development to operate an emergency homeless shelter 

could cite this Act and provide their religious conviction against same-sex marriage as a reason 

to put a same-sex couple and their children back on the street. It would also empower federal 

civilian employees who personally object to same-sex marriage to refuse to fully perform their 

jobs. For example, an employee at the Department of Veterans Affairs could refuse to process 

survivor benefits for the same-sex spouse of a servicemember killed in action. 

The right to religious belief and free exercise is fundamental. This freedom to worship - or not --

without fear of government intrusion or compulsion is a core American value. The U.S. 

Constitution and federal courts provide strong protections for both individuals and religious 

organizations to practice their religion and to freely share their beliefs. Nothing in federal law, 

including the right to receive tax exempt status, a federal grant or contract, or any other federal 

benefit can be denied on the basis of a sincerely held religious belief. F ADA ignores these 

existing Constitutional protections and threatens to tip the delicate balance of individual rights 

and religious liberties that the founders so art:fhlly designed- undennining decades of civil 

rights protections and leaving some of the most vulnerable members of our society open to 

unmcdiatcd discrimination. 

The federal government cannot mandate compassion, but it must not mandate discrimination. 

Thank you for the opportunity to provide these comments. 

Sincerely, 

David C. Stacy 

Government Affairs Director 

HUMAN RIGHTS CAMPAIGN J 1640 RHODE ISLAND AVE., N.W., WASHINGTON, D.C. 20036 

P202-628-4160 I F202-423-2861J HRC@HRC.ORG 
185 


KING-6430 with DISTILLERInsert offset folio 124 here 23645.124

1333 H Street, NW 10'11 Floor 

Washington DC. 20005 

Tel: 202 6R2.1611 • Fax: 202 682.1867 

Written Testirn()nv for 

'.'H~ligi_Q_us Lil:.l~rty and_H,R"J802, The First A!!lendm~n!Defense Act(FADA) Hell~ri111[: 

,J_uly 12, 20!_§ 

Introduction 

2154 Rayburn H()UJ~Office Builliill_g 

Washington, D.C. 20515 

Forth~ 

![_()use ofRepresentativ~~ 

~ommittee onj:}y(![.§ight and Goyernment Ref()_t:lll 

H.R. 2802 "J?irst AmendJ11en~tDefense Act" 

~!tlLillltted by Carmel Martin 

Center for American Progress 

J..uly 1 o'~.7911! 

This testimony is submitted in opposition to advancing H.R. 2802, the so-called First 

Amendment Defense Act (F ADA). Introduced just before the historic 2015 U.S. Supreme Court 

decision that made marriage equality a reality nationwide, F ADA is a broadly written bill that 

throws religious freedom protections far out of balance. allowing individuals, organizations and 

businesses to limit the rights of others in the name of religion. 

Religious liberty has always been a core American value, enshrined in the First Amendment and 

central to maintaining the democratic experiment in our perennially diverse society. But FADA's 

sponsors are departing from the intentions of our nation's founders and are attempting to advance 

a bill that protects only certain religious beliefs without regard for the harm the imposition of 

those beliefs could cause to others. 

FADA is not about liberty. It is about enshrining discrimination into federal law, and this 

means it is clearly unconstitutional. Tbe bill's "Findings" section explicitly references 

"opposing same-sex marriage" as the core driver of the legislation. 

If passed, the government could not address various forms of discrimination, such as: 

An employer refusing to grant Family and Medical Leave Act leave for an employee to care for 

her same-sex spouse, even though the two are legally married; 
186 


KING-6430 with DISTILLERInsert offset folio 125 here 23645.125

A school that receives federal funding firing an unmarried teacher it suspects of having sexual 

relationship with his longtime girlfriend; 

Social services programs that receive federal funds, like homeless shelters, turning away LGBT 

people and unwed mothers. 

Fruihermore, F ADA would allow anyone who believes they have been somehow required by the 

govermnent to approve of married same-sex couples or unmarried couples having sex could file 

a lawsuit seeking taxpayer funds. The most recent version of the bill even applies to publicly 

traded, for-profit corporations, which could assert a religious belief to gain exemptions to laws 

that protect workers or consumers. 

FADA Violates the Constitution and the Right to Marriage Equality 

F ADA would tax some Americans to subsidize individuals who would impose their religious 

beliefs on others and this is fundamentally out of step with our nation's constitutional values. 

The legislation demands that our tax dollars be used to subsidize discrimination. And because 

F ADA compels the govemment to promote one set of religious beliefs, it likely violates the First 

Amendment. 

FADA also likely violates the Equal Protection clause of the 14'h Amendment. In Romer v. 

Evans, the Supreme Court struck down a Colorado state constitutional amendment, Amendment 

I, which forbid civil rights protections for gay men, lesbians and bisexuals. 1 The amendment, 

Justice Ketmedy explained for the Court, violated the Constitution because it forces sexual 

minorities into a legal underclass2 "Laws singling out a certain class of citizens for disfavored 

legal status or general hardships are rare," Kennedy wrote.3 "A law declaring that in general it 

shall be more difficult for one group of citizens than for all others to seek aid from the 

govermnent is itself a denial of equal protection of the laws in the most literal sense. "

4 As with 

Amendment 1, F ADA explicitly strips same-sex couples of much of their ability to seek aid from 

the federal govemmeut. 

A federal judge recently halted a Mississippi Jaw-- which is similar, in many important ways, to 

FADA- because it violated the rule announced in Romer5 Mississippi's law went further and 

allowed discrimination on the basis of gender identity.6 The judge also struck down the 

Mississippi law because, like F ADA, it gave special treatment to ce1iain religious beliefs over 

others. 

In his ruling, the judge said the Mississippi law is inconsistent with the founding principle of 

religious freedom, describing the bill as "allegedly an endorsement and elevation by their state 

government of specific religious beliefs over theirs and all others."7 The Mississippi law would 

have allowed anyone to discriminate based on religious beliefs about marriage or gender identity, 

1 Romerv. Evans, 517 U.S. 620 (1996). 2 Id. 

3 Id. 

4/d. 

5 Memorandum Opinion and Order, Barber v. Bryant. No. 3:16-CV-417-CWR-LRA (S.D.Miss. June 30, 2016). 

6/d. 

7 !d. 

2 
187 


KING-6430 with DISTILLERInsert offset folio 126 here 23645.126

and the judge noted that, given the protection of these specific beliefs, "it follows that every 

other religious belief a citizen holds is not protected by the act. Christian Mississippians with 

religious beliefs contrary to [the protected beliefs] become second-class Christians."8 

Both F ADA and the Mississippi bill are contrary to the ruling in Obergefell v. Hodges, the 

Supreme Court's landmark marriage equality decision. In Obergefell, the Court held that samesex couples must be afforded the right to marry "on the same terms and conditions as opposite 

sex couples."9 The Mississippi judge described the state's new religious freedom bill as an 

"attempt to put LGBT citizens back in their place after Obergefell. The majority of 

Mississippians were granted special rights to not serve LGBT citizens, and were immunized 

from the consequences of their actions."10 

F ADA betrays the principles outlined in Obergefell as well. The bill permits couples joined in 

"the union of one man and one woman" to enjoy the full panoply of rights afforded by federal 

law, while simultaneously stripping many of those rights from married same-sex couples. That is 

not something that the Constitution permits. 

FADA Would Enable Explicit Discrimination 

FADA would allow marriage equality opponents and those with objections to sex outside of 

marriage to impermissibly refuse to follow laws without penalty or intervention from the 

govemment. The bill therefore creates harmful, imbalanced religious liberty protections for 

certain religious beliefs about gender, marriage, and sexual behavior-with potentially farreaching consequences. Explicitly, F ADA would prevent the government from penalizing any 

individuals, groups, organizations, institutions, or for-profit businesses that act or discriminate 

based on the belief that marriage should be between one man and one woman or that sex should 

be reserved for marriage. 

By enabling discrimination and privileging certain religious beliefs at the expense of other 

beliefs, FADA does not reflect an appropriate interpretation of religious liberty. In recent 

decades, federal courts have consistently rejected attempts to align animus with religion. 

"Almighty God created the races white, black, yellow, malay and red, and he placed them on 

separate continents," Judge Leon Bazile wrote in an opinion trying to justify Virginia's ban on 

interracial marriage in 1959. 11 "The fact that [God] separated the races," Bazile claimed, "shows 

that he did not intend for the races to mix."12 The Supreme Court rejected Bazile's racism in one 

of its most celebrated decisions, Loving v. Virginia. 13 

Maurice Bessinger distributed literature to customers at his chain of barbecue restaurants 

claiming that the Bible is a pro-slavery document. He claimed that the Civil Rights Act of 1964, 

8 !d. 

9 Obergefe/1 v. Hodges, 135 S. Ct. 2071 (2015). 10 Memorandum Opinion and Order, Barber v. B1yant, No.3: 16-CV-417-CWR-LRA (S.D.Miss. June 30, 2016). 

" Loving v. Virginia, 388 U.S. I ( 1967). 

l1 !d. 

"Jd. 

3 
188 


KING-6430 with DISTILLERInsert offset folio 127 here 23645.127

with its ban on whites-only lunch counters, "contravenes the will of God." 14 Bessinger, too, lost 

in a unanimous Supreme Court decision calling his efforts to use faith to justifY discrimination 

"patently frivolous." 15 

When Fremont Christian, a religious school, claimed that it could refuse to provide health 

benefits to its married women employees because of the school's belief that "in any marriage, the 

husband is the head of the household and is required to provide for that household," the school 

too lost its bid to excuse discrimination by invoking the name of God when a federal court ruled 

against it. 16 

And when Bob Jones University claimed that it should continue to receive tax subsidies despite a 

rule- rooted in the university's religious teachings-which provided that "students who date 

outside of their own race will be expelled," the Supreme Court rejected this claim as welL 17 "The 

Government has a fundamental, overriding interest in eradicating racial discrimination in 

education," the Court cxplained. 18 

Today, the specific kind of discrimination that religious objectors hope to justifY through F ADA 

largely targets LGBT people, women, and people offaith who do not share the same theology of 

marriage and sexual relationships outlined in F ADA. But the principle to reject these 

justifications remains the same - we do not permit discrimination solely because it is wrapped in 

the language of faith. Doing so allows discrimination to flourish, undermines existing 

protections on the basis of sex, sexual orientation, and gender identity, and cheapens religious 

liberty for all people. 

FADA Disregards Long Held Religious Liberty Principles and Broad Support 

for Nondiscrimination 

Throughout U.S. history, both courts and legislatures have worked to balance the twin 

components of religious liberty: the right to worship and practice one's faith and the right not to 

be coerced into following beliefs that are not one's own. Nearly two-thirds of Americans also 

believe that a strict separation between church and state must be maintained. 19 

Moreover, in a pluralistic society such as ours, the interests of multiple parties are sometimes in 

competition. As a matter oflaw in religious liberty cases, this requires striking a balance that 

avoids causing others to bear the burdens of one's own chosen religious beliefs and practices. 

According to Douglas NeJaime and Reva Siegel, "Complicity claims are ... about how to live in 

community with others who do not share the claimant's beliefs, and whose lawful conduct the 

14 Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). 15 Id. 16 EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986). 17 Bob Jones Universitv v. United States, 461 U.S. 574 (J 983). 18 ld. . 19 Public Religion Research Institute, "Survey: What it Means to be American: Attitudes towards Increasing 

Diversity in America Ten Years after 911 !" (2011). 

4 
189 


KING-6430 with DISTILLERInsert offset folio 128 here 23645.128

person of faith believes to be sinful. Because these claims are explicitly oriented toward third 

parties, they present special concems about third-party harm."20 

FADA runs contrary to the intent of the country's founders and the inherent values of Americans 

by creating harmful, imbalanced religious liberty protections for business owners, govemment 

officials, and even private parties opposed to national marriage equality, certain health care 

decisions, the adoption of children by LGBT people, and more. Conservative efforts to 

discriminate under the guise of protecting religious liberty cam1ot and should not have the 

monopoly on defining religious liberty. Religious liberty belongs to all Americans. 

In fact, 88 percent of Americans agree that religious liberty is a founding principle afforded to 

everyone in this country, even those who hold unpopular religious beliefsY Therefore it is not 

surprising that FADA is wildly out of step with the beliefs of the majority of Americans. 

Majorities of both political parties and independents, as well as majorities of all major religious 

groups, favor LGBT nondiscrimination laws, not more discriminatory religious exemptions. 

Sixty percent of Americans support the freedom to marry, as recently reported by Gallup.22 An 

even stronger majority, nearly 70 percent, support protecting LGBT people from discrimination 

in employment, housing and public accommodations.23 Two-thirds of small business owners (66 

percent) oppose businesses being able to deny LGBT people goods or services based on religious 

beliefs.24 Majorities of Hispanic Protestants (58 percent), white Catholics (58 percent), white 

mainline Protestants (56 percent), Jewish Americans (72 percent) and religiously unaffiliated 

Americans (71 percent) reject excusing business owners and other providers from their 

responsibilities to serve everyone equally, regardless of religious belief25 In addition, 

Millennials-who represent approximately 25% of the U.S. population-Dverwhelmingly reject 

discriminatory religious exemptions for bnsiness owners ( 67 percent) and support 

nondiscrimination protections for LGBT Americans (80 percent) 26 These numbers reflect that 

Americans across the demographic spectrum intrinsically endorse the fundamental belief that a 

religion or belief cannot impede on another's constitutionally protected rights. 

Progressive religious organizations have often been the first to speak out against discriminatory 

uses of religious liberty-as did the Christian Church (Disciples ofCluist) in 2015 when Indiana 

20 Douglas NeJaime and Reva B. SiegeL "Conscience Wars: Complicity-Based Conscience Claims in Religion and 

Politics," The Yale Law Joumall24 (2015): 2591. 21 Public Religion Research Institute, "Survey: \Vhat it Means to be American: Attitudes towards Increasing 

Diversity in America Ten Years after 9/11" (20 II). 22 Gallup poll, May 2015, h!!p:/iwww.gallup.com/pgii/!8327:Urecord-h!gh-ameri£QnS-§l!Jll'QI"l;-_~'\.:ill'l!"ri?E~ 23 Public Religion Research Institute survey. June 2015, http:l/publicreligion.orglresearch/2015/06/survey-majorityfavor-same-sex-marriage-two-thirds-believe-supreme-court-will-rule-to-legalize 

24 Center for American Progress, Small Business Majority, and American Unity Fund July 2015, 

b~m~~:~~_,_~!l?-JJ_l)_~~l_!__e_~~rrl&q_Q_t_y-'g~:g/$J1:l_il_ll:_b1,!~iD~~r_~~~~lLP..2.!l:s!i§crimir@.!)g_rr( 25 Public Religion Research Institute, "Beyond Same-Sex Marriage: Attitudes on LGBT Nondiscrimination Laws 

and Religious Exemptions from the 2015 American Values Atlas," available at 

http:/ /publicreligion.org/research/20 16/02/beyond-same-sex -marriage-attitudes-on-lgbt-nondiscrimination-andreligious-exemptions-from-the-2015-american-values-atlas/ 

26 Public Religion Research Institute, "Beyond Same-Sex Marriage: Attitudes on LGBT Nondiscrimination Laws 

and Religious Exemptions from the 2015 American Values Atlas," available at 

http:/ /publicreligion.org/research/20 16/02/beyond-same-sex -marriage-attitudes-on -lgbt -nondiscrimination-andreligious-exemptions-from-the-2015-american-values-atlas/ 

5 
190 


KING-6430 with DISTILLERInsert offset folio 129 here 23645.129

passed its controversial state Religious Freedom Restoration Act law. A letter signed by Sharon 

E. Watkins, the Christian Church (Disciples of Christ) general minister and president, as well as 

additional church officials stated: "Purportedly a matter of religious freedom, we find RFRA 

contrary to the values of our faith- as well as to our national and Hoosier values. Our nation and 

state are strong when we welcome people of many backgrounds and points of view. The free and 

robust exchange of ideas is part of what makes our democracy great."27 

Conclusion 

Despite a significant lack of public support for new religious exemptions to the law-on both the 

federal and state levels-some lawmakers have disregarded their constituents and invested their 

energies into these unnecessary and dangerous laws. Laws like F ADA pose a dangerous threat to 

true religious liberty, civil rights, comprehensive health care access, and the economic security of 

women and families, especially the most vulnerable communities among them. This bill is taking 

valuable time and attention away from policies that would truly strengthen America's democracy 

and the well-being of its citizenry-such as Medicaid expansion; the enforcement of the ACA 

comprehensive health care mandate; nondiscrimination protections for LGBT Americans; and 

the enforcement of religious and civil liberty protections for religious minorities. 

Resisting dangerous, overly broad interpretations of religious liberty affirms our nation's core 

values by ensuring that the American dream remains in reach of all Americans, and it reflects the 

values of people of faith who are committed to equality and opportunity for all. For these 

reasons, the Center for American Progress strongly opposes this legislation. 

Respectfully Submitted, 

Carmel Martin 

Executive Vice President, Policy 

Center for American Progress 

27 Cherilyn Williams, "General Board commits to seek new venue for 2017 General Assembly," Christian Church 

(Disciples of Christ), March 31. 2015, available at http://disciples.org/general-assembly/ministry-leaders-sendletterto-governor/ 

6 
191 


KING-6430 with DISTILLERInsert offset folio 130 here 23645.130

AMERICAN C!V!L 

LIBE:R'l'IES UN!ON 

July 11,2016 

The Honorable Jason Chaffetz 

Chairman 

Committee on Oversight and Government Reform 

U.S. House of Representatives 

Washington, D.C. 20515 

The Honorable Elijah Cummings 

Ranking Member 

Committee on Oversight and Government Reform 

U.S. House of Representatives 

Washington, D.C. 20515 

First Amendment Defense Act (H.R. 2802) is Unconstitutional, TaxpayerFunded, Anti-LGBT Discrimination 

Dear Chairman Chaffetz and Ranking Member Cummings: 

The American Civil Liberties Union is providing this statement on the so-called 

"First Amendment Defense Act" (H.R. 2802) in advance of Tuesday's hearing 

in the Committee on Oversight and Government Rcfmm. 

As introduced, this legislation opens the door to unprecedented, taxpayerfunded discrimination against LGBT people, single mothers, and unmarried 

couples. The definition of"discriminatory action" is extraordinarily and 

dangerously broad. It is designed to allow anyone- including government 

employees, contractors, and for -profit businesses -to act with impunity based 

on a religious belief or "moral conviction" objection to marriage for same-sex 

couples, or to sexual relationships outside of a heterosexual marriage. 

The proposed definition of discriminatory action in this legislation would, 

ironically, significantly undenninc the ability of federal agencies tasked with 

enforcing our nation's civil rights laws, such as the EEOC, to protect LGBT 

people and women from discrimination in education, employment, or housing. 

This kind of sweeping discrimination flies in the face of the Supreme Court's 

landmark ruling in 2015 that extended the freedom to marry to same-sex 

couples across the country. In addition, proponents of this legislation claim it is 

necessary to protect the religious liberty of churches, clergy, and others who 
192 


KING-6430 with DISTILLERInsert offset folio 131 here 23645.131

oppose marriage equality. In reality, the First Amendment is already very clear on this point. 

Since the founding of our country, no church or member of the clergy has been forced to marry a 

couple in violation of their faith. That has not changed since same-sex couples gained the 

freedom to marry. 

Among this legislation's many potential harms, it could give rise to claims seeking a right to: 

permit government employees to discriminate against married same-sex couples and their 

families by refusing to process tax returns, visa applications, or Social Security checks 

for all married same-sex couples; 

allow commercial landlords to violate longstanding fair housing laws by refusing housing 

to a single mother based on the moral conviction that sexual relationships are properly 

reserved to a marriage; and 

allow any individual, business, or group who believes they may somehow be required by 

the federal government to do something that implicitly condones marriage for same-sex 

couples or sexual relationships outside of a heterosexual marriage to file a lawsuit. 

This legislation is intended to enable discrimination without consequence specifically against 

LGBT people. This is not only wrong, but unconstitutional as well. 

The "First Amendment Defense Act" is unconstitutional. 

As a Mississippi federal court recently held in blocking a state law similar to this legislation from 

taking effect, the Establishment Clause, the Due Process Clause, and the Equal Protection Clause 

in the U.S. Constitution prohibit the government from offering special protection to particular 

religious beliefs. 1 

This legislation, as introduced, violates the Establishment Clause because it provides special 

favor to a particular set of religious beliefs, while offering no protection to people who hold 

contrary beliefs, and because its dispensations come at other citizens' expense. Under the 

Establishment Clause, a state "may not aid, foster, or promote one religion or religious theory 

against another."2 "When the government acts with the ostensible and predominant purpose of 

advancing religion, it violates the central Establishment Clause value of official religious 

neutrality, there being no neutrality when the government's ostensible object is to take sides."3 

By putting a thumb on the scale in favor of a particular set of religious beliefs- that marriage is 

the union between a man and a woman, and that sexual relations are only proper within such a 

marriage the government tells "nonadherents that they are outsiders, not full members of the 

community, and ... adherents that they are insiders, favored members of the political 

1 See Barber v. Brvant. No. 3:16-cv-417, Mem Opinion & Order (S.D. Miss. June 30, 2016). 2 Epperson v. Ark~nsas, 393 U.S. 97, 104 (1968). 3 McCreary Cnty., Kentucky v. ACLU of Kentucky, 545 U.S. 844, 860 (2005) (citation omitted). 

2 
193 


KING-6430 with DISTILLERInsert offset folio 132 here 23645.132

community."4 Further, this legislation violates the Establishment Clause by affording religious 

exemptions that impose significant harm on same-sex couples and people involved in sexual 

relationships outside of a heterosexual marriage. 5 

This legislation, as introduced, also violates the Due Process and Equal Protection Clauses by 

authorizing arbitrary discrimination against lesbian, gay, bisexual, and unmarried persons." As 

the Supreme Court made clear in Romer v. Evans, which struck down a Colorado constitutional 

amendment that preempted local anti-discrimination protections for lesbians, gay men, and 

bisexual people: "A law declaring that in general it shall be more difficult for one group of 

citizens than for all others to seek aid from the government is itself a denial of equal protection 

of the laws in the most literal sense."7 Such laws also interfere with same-sex couples' right to 

access marriage "on the same terms and conditions as accorded to" different-sex couples, 

including the "symbolic recognition and material benefits to protect and nourish the union."8 

Like the unconstitutional "Defense of Marriage Act," snuck down in United States v. Windsor, 

this legislation identifies the marriages of same-sex couples as a "subset of state-sanctioned 

marriages and makes them unequal" to all other types of legal marriages. 9 

When "sincere, personal opposition [to the marriage of a same-sex couple] becomes enacted law 

and public policy, the necessary consequence is to put the imprimatur of the State itself on an 

exclusion that soon demeans or stigmatizes those whose own liberty is then denied." 10 That is 

precisely what this legislation wonld do. "It is not within our constitutional tradition to enact 

laws of this sort."JJ 

FADA 2.0 and FADA 3.0 

While the focus of this hearing is on H.R. 2802, as introduced, we understand that the lead 

sponsors of this legislation in both the House and Senate have drafted at least two revised 

versions of the bill. 12 Neither version has been formally introduced in either chamber of 

4 Santa Fe lndep. Seh. Dist. v. Doe, 530 U.S. 290, 309-10 (2000) (internal quotation marks and citation omitted). 5 See Estate of of Thornton v. Calder, 472 U.S. 703, 709-10 (1985) (holding that the Establishment Clause 

prohibited a Connecticut law that "arm[ ed] Sabbath observers with an absolute and unqualified right not to work on 

whatever day they designate[ d) as their Sabbath," because the statute took "no account of the convenience or 

interests of the employer or those of other employees who do not observe a Sabbath"); see also Cutter v. Wilkinson, 

544 U.S. 709, 720 (2005) (stating that the Establishment Clause requires courts to ''take adequate account of the 

burdens a requested accommodation may impose on non beneficiaries"). 6 Although the Fourteenth Amendment's Equal Protection Clause applies only the states, its protections apply to the 

federal government as well under the Fifth Amendment's Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497 

(1954). 

7 Romcrv. Evans, 517 U.S. 625,633 (1996). 8 Obergefcll v. Hodges, !35 S. Ct. 2584,2601,2604 (2015). 9 U.S. v. Windsor, 133 S. Ct. 2675,2694 (20!3). 10 Obergefe/1, !35 S. Ct. at 2602. 11 Romer. 517 U.S. at 633. 

~ Press Release, Senator Mike Lee, Lee Releases Finalized First Amendment Defense Act (Sep. 15, 20 15), 

http://www.lee.senate.gov/public/index.cfnvpress-releases?ID~8E6FC9C9-730F-49A6-AD32-82E486F6E5BB. 

3 
194 


KING-6430 with DISTILLERInsert offset folio 133 here 23645.133

Congress. While not as sweeping, the revised versions continue to present a dangerous threat to 

LGBT people, single mothers, and unmanied couples. Potential harms that could occur under 

"F ADA 2.0" and/or "FADA 3.0" include: 

allowing social service programs that receive federal grants to provide emergency 

services to tum away anyone who has a sexual relationship outside of maniage, 

including single mothers and unmarried couples; or 

allowing privately owned businesses to discriminate by refusing to Jet a gay or 

lesbian employee care for their sick spouse, in violation of federal family and medical 

leave laws. 

Indeed, the fact that the sponsors have repeatedly had to go back to try and scale back the 

discrimination and harm that would result from this legislation demonstrates why it should be so 

resoundingly opposed. The inclusion of married same-sex couples in Sec. 3(a)(J )(B) in the latest 

iteration from Representative Labrador is simply an effort to mask the anti-LGBT animus that 

lies at the very center of this legislation. 

Conclusion 

Whether in its original version or in the rumored revisions that have not been introduced, this 

legislation represents a sweeping legislative attack on the basic dignity and equality of LGBT 

people. The First Amendment does not need "defending" through a bill that discriminates against 

same-sex couples or single parents. The ACLU is strongly opposed to the misnamed "First 

Amendment Defense Act." 

Sincerely, 

Karin Johanson Ian Thompson 

Director, Washington Legislative Office Legislative Representative 

Cc: Members of the Committee on Oversight and Government Reform 

4 
195 


KING-6430 with DISTILLERInsert offset folio 134 here 23645.134

NATIONAl LGBTQ TASK FORCE ACTION FUND TESTIMONY REGARDING THE FIRST AMENDMENT DEFENSE ACT 

SUBMITTED: JULY 12, 2016 

CONTACT: 

CANDACE BOND-THERIAULT, ESQ., LLM. 

POLICY COUNSEl, REPRODUCTIVE RIGHTS 

NATIONAllGBTQ TASK FORCE 

(202) 639-6315 
196 


KING-6430 with DISTILLERInsert offset folio 135 here 23645.135

Exactly one month after the hate crime that kll!ed 49 people at a gay nightclub in Orlando, we recognize the 

significance this hearing has in the national conversation on the rights and dignity of lesbian, gay, bisexual, 

transgender, and queer {LGBTQ) people in the United States. We also note that in the month since this horrendous 

attack on the LGBTQ community, Congress has not held a single hearing on the needs of the victims, their families, 

and survivors, or on ways to better protect the LGSTQ community from additional hate crimes or discrimination. 

It is critical that Congress sends a strong message that discrimination against LGBTQ people, even under the 

guise of religious liberty, cannot and will not be to!erated.l The NationaiLGBTQ Task Force Action Fund asks the 

Committee to consider the substantia! negative impacts that passing the First Amendment Defense Act (FADA) 

would have and the ways in which it would embolden others to attack our community. Many LGBTQ people are 

also people of faith; yet this bill disingenuously suggests that faith and LGBTQ identity are always at odds. 

We submit this testimony ln part to expose FADA for what lt is- a license to discriminate. This bill does not 

exist in a vacuum. Its introduction and ongoing support operates within a context of pervasive anti-LGBTQ animus. 

The LGBTQ community is disproportionately targeted by discriminatory !aws and harassment, and as a result, 

suffers increased rates of unemployment, poverty, sexual violence, health and mental health care discrimination, 

housing instability, and other disparities. Rather than promote religious freedom, FADA would further compound 

these systemic disparities and undercut the few protections LGBTQ people have against discrimination. For these 

reasons, the National LGBTQ Task Force Action Fund strongly urges the Committee not to move forward with the 

First Amendment Defense Act of 2015. 
197 


KING-6430 with DISTILLERInsert offset folio 136 here 23645.136

FADA builds upon a legacy of anti-LGBTQ discrimination The tragedy in Orlando is not an isolated incident of violence against the LGBTQ community- over 20% of 

hate crimes in the u.s. target people based on their sexual orientation and/or gender expresslon. 2 Unfortunately, 

attacks on gay bars, which have historlcal!y served as community centers for LGBTQ people, are also not 

unprecedented. In 1969, in response to yet another targeted police raid, the patrons of Stonewall Inn began a 

powerful uprising that sparked the lGBTQ liberation movement. 3 However, anti-LGBTQ violence has continued 

since then. Six years after Stonewall, a gay bar was set on fire in New Orleans, killing 32 people.4 !n 1997, a bomber 

targeted an Atlanta lesbian bar in a hate~motivated attack against the "homosexual political agenda."5 ln 2000, a 

gunman opened fire at a gay bar in Virginia, and declared that he ''was on a mission to kill gay peop!e.''6 

These attacks on the LGBTQ community are not random, disconnected events- they are part of an 

environment flooded by relentless anti+LGBTQ legislation. This year alone (noting that it is only early July), state 

legislatures have introduced over 150 ant1+LGBTQ bills that would affect LGBTQ people's ability to marry, adopt 

and foster children, access healthcare, education and homeless shelters, as well as public spaces and faci!ities. 7 

Thirty-five bills specifically targeted one of most marginalized groups within the LGBTQ community- transgender 

people.8 

Transgender people are disproportionately affected by unemployment, poverty, harassment, sexual violence, 

and home!essness.9 Furthermore, this community, especla!!y transgender women of color, are often targeted for 

1 The Federal Bureau of Investigation, FBI Releases 2014 Hate Ctime Statistics, Nov. 16, 2015, 

tl!.tP~.:jj~~~llil.,gQ_'{f!leYX.slP..ID2!.@lLRress-r~~L.f!:ll::L~il-~?.i:lQ~4.-.h<!t~-~Lim~:~la+tlgt£.~. 

J Garance Franke+Ruta, An Amazing 1969 Account of the Stonewall Uprising, Jan. 24, 2013, 

.!l:U..Qj/www.theil!lantic.cQIDLQQ..!llj£~i,liS1l\YR/_f_Ql~LQll.i!.O:E.!:!Jillil1R::J9.6.Q.:accmlnt-o.f.:!.b~~lQm.EU.: 

uprising/272467/, 

• After Upstairs Lounge Fire, Gay and Straight New Orleans Changed: Frank Perez, June 22, 2013, 

!lt!Q:/Iwww.no!a.co...mLQfti.QLo..illfjndex.s2fL2013/Q§/.o;"!.{igUJQ:Hi!t0...lQ.!J.t'!£Lf.i[.!L1{i!Y·.ll1!.l..:!l· 

~ NPR, Full Text of Eric Rudolph's Confession, Apr. 14, 2005, 

http:l/ww..Y:LD~__ffi.qJ£t.Mt_g_ry/ii!.Q_ty,QJ.l2?2i£!:Y!St=;.1§_Q048Q. 

4 Chris Kahn, Four Life Terms in a Gay Bar Shooting, Jul. 23, 2000, 

!ltU2.;LL~news.go.com/J,lS/story?ld:::::92822&paRl£:::!· 

'ACLU1 LGBT Nondiscrimination and Anti+LGBT Bills Across the Country, bJ1P..Www'!:.v..:!!fJu.or.£L!£h!..: 

~Jaime M. Grant, Ph.D. Usa A. Mottet, J.D. Justin Tanis, O.Min., Injustice at Every Turn: A Report on the National 

TransgenderDiscrimfnation Survey, 2011 (finding that transgender and gender non-conforming children in grades 
198 


KING-6430 with DISTILLERInsert offset folio 137 here 23645.137

hate crimes, last year alone, at least 21 were murdered In the United States. 10 As oftoday's hearing, 14 

transgender people have already been murdered this year.11 There are countless others whose attacks go 

unreported or who are misgendered in news reports. 

lGBTQ people already face termination, housing d!scrim!nation, and denial ofhealthcare access under state 

laws that enshrine discrimination in the name of religious libertyY One hundred and ten of the anti-lGBTQ bl11s 

proposed this year specifically allowed discrimination under the guise of religious freedom- an increase from 79 

last year. 13 FADA will further exacerbate this discrimination and deny basic human rights to lGBTQpeople. 

lt is especially difficult to believe FADA is intended to "fp]rotect..the free exercise of religious beliefs and 

moral conv!ctions"14 when many of the bilt's supporters are members of Congress who have an established antilGBTQ track record. For example: 

• A key Senator has been openly described as a good friend of Bryan Fisther, a radical radio personality 

who has compared gay people to terrorlsts. 15 This comparison is especially distasteful in the light of 

the violent attacks the LGBTQ community has suffered, including the tragic events in Orlando. 

• Another Senator started a GOP policy meeting with a Bible passage "calling for the death of 

homosexuals" and implied that colleagues who voted for a bill designed to protect LGBTQ people 

from discrimination were going to he!!. 15 

• Yet another Senator has compared same-sex relationships to incest and pedophilia. 17 

K-12 reported 78% rate of harassment, 35% physical assault, and 12% sexual violence; further finding that 90% of 

transgender and gender nonconforming adults experienced harassment, mistreatment, or discrimination). 

'"The Advocate, These ore the Trans People Killed in 2016, 

h_ttR}h!i...'!!.Y!.."'-~·Qy_qf.ate,cQ.miJr.?Illil-ender/2016/6f03/these·are.:!.!Q.t.li:.(!g9J?jg_±;Wg.~;:19j_fi. 

11fd. 

n ACLU, supra note 6. 

"ACLU, AntHGBT Religious Exemption Legislation Across the Country, ~{W,W}'L_?.S).l!~?! . .&L9.!!!:.i.:!&.Q!2f:.!.!g)Qy2: 

~_l:.~_mgJJQ.Q-_lggjslatio!!;:?J:;!:Q_S~J!lG'}I2016; ACLU, supra note 6. 14 First Amendment Defense Act, H.R. 2802, Sec. 3 

·~ RWW Slog, Fischer: Gay Sex is Just Like Terrorism, You Tube, Sep. 15.2010, 

!JJ.!Q.U/www.voutube.com/watch?v-915m!3Y\L~q~JlJM~.i!1\:!.L~::P..@yer ernQ.~J!e.Q, 

·~Jennifer Shutt, Congressman Who Read Anti-Gay Bible Verse Prays for Orlando Victims' Loved Ones, Jun. 15, 

2016, 'rillJljjwvvw,LQ.!!l;A)t.s:.PJ.ll/J:!?..!¥.~}poJl~Y/S:_9l)gressman·rean:_e_nti-gilV-bible-vcrse-prays·orlando-vlftLI'!li; see 

also Scott Wong and Mike Lillis, Bible Verse Prompts GOP Walkout After LGBT Vote Labeled a Sin, May 16, 2016, 

!:!llQ.;iflb.?.b.i.!i&Q!D/JJ.QQ'!g!1.E.'.wsL!J.Q!!.i.U28141Z,:l;U.h!£~~tlQ.Q:_meetine:?PJill·.>tti!J!~.Qtg. 
199 


KING-6430 with DISTILLERInsert offset folio 138 here 23645.138

In a statement denouncing same~sex marriage, a Senator Implied same~sex parents were inferior and 

claimed that children of such parents would be "shortchanged." 18 

• Another Senator has written that children are preyed upon by "pro-gay indoctrination and 

recruitment." The same Senator later compared being gay to alcoholism and drug addiction, and 

supported conversion therapy, which has been banned in many states as dangerous. 19 

• One Senator attempted to remove protections for LGBTQ students, claiming that discussing sexuality 

in sex education ls part of "an agenda" that is recruiting children into homosexua!ity.20 

• Another Senator claimed same-sex marriage is a threat to the survival of the United States.21 

These remarks demonstrate a fundamental disrespect for- and in many cases explicit animus towardsLGBTQ people and our famllies, and fail to "contribute to a more respectful, diverse, and peaceful sodety."22 If 

these are the "religious be!ief[s} or moral conviction[sj" ~ of some of the supporters of FADA, the discriminatory 

intent behind the bill cannot be any clearer. Anti-LGBTQ bills !ike FADA are instruments of discrimination against 

people whose basic human rights and dignity continue to be denied based on their sexual orientation and gender 

identity. 

FADA will affect more than "gay weddings" Given the discrlminat!on, animus, and violence that LGBTQ people face, we expect Congress to take the lead in 

protecting the rights and dignity of this targeted community. Instead, FADA is being pushed forward to permit an 

unprecedented !eve! of taxpayer~funded discrimination. 

n Zack Ford, Vicky Hartzler's Slippery Slope on Marriage: 'Why Not Allow a 50-Year Old Man to Marry 12~Year Old 

Girl?', Jun. 3, 20ll,l!J~P.;LLt~J!l~f1!1'1iC~2.$-0.J.£iJEQ.til!111LQP.LQ~L?.:J?$2.U~.is:.~Y. .b..ill.tz1ers-sli.Qfl~..:?.!9m;:Q!l: . ..rmu.rl£l£§'.: why-not-allow-a-~0-year-old-man-to-.m.;m;:Y:li:)l.ga.l...Ql.Q_:.gldf· 

'~Brian Tashman, Huelskamp: Marriage Equality is Unpatriotic and Furthers 'The Destruction of the Family,' Apr. 1, 

2013, http://www,rightwingwatch.o..!E.ls:_Q.Jltg!l!ih~!ill.~l';.<~JTIP.:...I"lli!I.fl?Rg.:.Pi!.l!Jiity·unpatrioJ.ic~and·fitl:!h~i.~: 

destruction-family. 

19fd. 

~n Shawn Doherty, Vital Signs: Grothman Suggests "Don't Ask Don't Tefl"' for State Schools, Feb. 11, 2010, 

h_ttp_dl~g;u.maPI?.O!l&Qf£1/.".!Ln ... t;.~..?JJ.Q.c_a!/hea!th_mJA . .H!iYlta.l_signs/'!rticlg~f.Q.t;B.~~g4:.J..2l?-11df-b1.1§: 

Q01cc4_cQ;}286.htmL 

11 Verbldde, Top Seven Ridiculous Anti-Gay Marriage Quotes, Jun. 19. 2012, 

hltR.;LLw:wY! ... ~I:?ls:l9_~m.Q~.cQ!I112.QJ41Qfli..19JJ.Q!:l-ridiculous·anti-~~ex-gay-m_~D:liill~:.9!:I..Q1.~sj. 

~• First Amendment Defense Act, H.R. 2802, Sec. 2(5). 

23 First Amendment Defense Act, H.R. 2802, Sec. 3{a). 
200 


KING-6430 with DISTILLERInsert offset folio 139 here 23645.139

Under current !aw, houses of worship already may decline to perform or recognize same·sex marriages 

without losing their tax·exempt status. FADA expands existing, narrowly tailored protections of religious 

institutions in a marriage context. In fact, the bill would allow anyone "regardless of religious affiliation or lack 

thereof, and regardless of for·profit or nonprofit status" to discriminate against same-sex couples, whether they 

are priests, business owners, or large for~profit corporations. Worse still, there is no definition of "religious bellef' 

or "mora! conviction," which means potentially any kind of discrimination against LGBTQ people would be 

acceptable so long as the discrimination is claimed to be "in accordance with a religious belief or mora! 

conviction." 

For example, federal employees could refuse to perform their duties if they disapprove of a person they are 

otherwise expected to assist, claiming that FADA gives them that right. Thls could result In individual employees 

declining to process paperwork such as SS! or SSD! applications, federal tax returns, federal student aid 

applications, or Social Security checks. These denials, and the ensuing lawsuits based on these FADA·enabled 

claims, would have significant, adverse consequences, particularly for !ow-income people. Statistics show that 

LGBTQ people are disproportionately impacted by poverty, and therefore more likely to rely on these services.24 

FADA would not fulfill its purported goa! of "contribut[ing] to a more respectful, diverse, and peaceful 

society." Instead, it would allow individuals to create hostile working environments that target their colleagues 

from diverse backgrounds.25 A federal agency office, for example, would be forced to either hire someone as a 

counselor even though she has expressed outright animus against LGBTQ patients, or else risk a lawsuit under 

FADA, LGBTQ people are disproportionately impacted by mental health concerns such as depression, anxiety, and 

suicidality, and may be more likely to seek out thelr employer's counseling services. With FADA, however, these 

24 National LGBTQ Task Force, Fact Sheet: Poverty & Economic Injustice in the LGBTQ Community, Oct. 8, 2014 

(Reporting that 24% of lesbian and bisexual women make less than the federal poverty line, compared to 19% of 

heterosexual women. Bisexual women are almost twlce as likely as heterosexual women to receive food stamps. 

Wh!le 12% of children of different-sex couples !lve in poverty, almost 20% of children of women in same~gender 

couples and 25% of children of men in same-gender couples live in poverty; for children of Black men in samegender couples, the number is over 50%) Aval!ab!e at 

.bJJ.rd.i.'NWW.theta;,kforce.or£b1.Rli.L.!Ji!:!lJ/dowrdoaQ.~L!J'J2"Q~UiJ:lJ~.e.i..~-ovJ?:rty factsheet 10 8 14.pdf. 25 H.R. 2802, Sec, 2(5). 
201 


KING-6430 with DISTILLERInsert offset folio 140 here 23645.140

federal employees or contractors would be subjected to this counselor's anti-LGBTQ hostility in their attempt to 

seek treatment, 

FADA would carve out an enormous exception to existing federal laws, regulations, and guidance to allow any 

recipient of federal grants or any federal employee or contractor to violate nondiscrimination. A Head Start 

program could refuse to admit children of married same-sex couples. Federal contractors could refuse to provide 

spouse or dependent health insurance coverage to employees with same-sex spouses, refuse to grant leave to an 

employee to care for an l!l same-sex spouse in violation of the Family and Medical leave Act, or refuse to hire or 

promote married LGBTQ people in violation of a presidential executive order, a!! without any consequences. 

Hospitals could deny visitation rights to same-sex couples and still keep Medicaid and Medicare funds, 

Emergency shelters receiving Violence Against Women Act funds could refuse to help LGBTQ survivors of domestic 

violence, placing survivors at high risk for immediate danger. A dink receiving Ryan White HIV/A!DS Program 

funding could refuse to treat gay or bisexual men (or even men suspected to be gay or bisexual}, particularly 

disadvantaging Black and Latino men In the LGBTQ community who are disproportionately impacted by HIV, 

Students from graduate psychology or counseling programs who insisted on using conversion therapy with 

LGBTQ dients could still receive their degrees at colleges or universities receiving federal funds, even though the 

American Psychological Association standards and state accreditation boards reject the pract\ce. 26 College and 

universities receiving federal funding could also fire faculty or staff upon !earning of their sexual orientation or 

becoming pregnant while unmarried, without losing those funds. 

Furthermore, FADA wm exacerbate housing instability for LGBTQ people by circumventing fair housing laws 

and HUD guidance for nondiscrimination In home!essness servicesY A landlord could refuse to rent to an 

unmarried lesbian because of "moral convictions," lf the prospective tenant then became homeless and went with 

her same-sex partner to a shelter, staff could send them back to the streets because of a policy against "immoral 

26 American Psychological Association, Resolution on Appropriate Affirmative Responses to Sexual Orientation 

Distress and Change Efforts, tillll~E.il.IE!&ill!.<!QQ!,!.!L!~.Qli£YL!ill~!.l-aJ:Qil£.ntatlon.osp~. 

'f.l.lW..ilwww.apa.org/abou.!LQQ!l9{~gll:1lB:l·orientatlon.aspx. http:l/www.ap<u~.m/about.lQ.Q![!;y_b_e}:!-Jill: 

£!l~1.<!11.9JJ~~~:!$· !.l1!J2;1/wwW.J:l.f~~-,Qr.&/.E.l?_9J!lf~gb~Y.P.!:qr!~fiJ.itl!Q~~.P-X, 

27 Equal Access to HUO Programs Regardless of Sexual Orientation or Gender Identity, published in Federal Register 

voL 77, no. 23,5662, available at http://portal.hud.gov/hudportal/documents/huddoc?id=12lgbtflnalrule.pdf. 
202 


KING-6430 with DISTILLERInsert offset folio 141 here 23645.141

sexual behavior." Under FADA, that shelter could not only keep their tax-exemption but also retain HUD grants 

despite recent guidance against discrimination based on sexual orientation. As anywhere from 20 to 40% of aU 

youth experiencing home!essness are LGBTQ: FADA's license to discriminate could severely undermine social 

services by increasing the risk that LGBTQ youth could be denied services, and prevent the federal government 

from rescinding grants to discriminatory programs. 

Perhaps the most disturbing provision of FADA is that it would allow individuals, groups, or businesses to file 

lawsuits and receive money damages from taxpayer funds so long as they believe that the federal government 

might requlre them to implicitly condone same-sex marriage or even the existence of LGBTQ people. ln the 

example of the homeless shelter, the shelter could actually demand money damages and essentially expect to the 

public to pay for their discrimination in addition to keeping its grant funds. 

In the guise of protecting against discrimination, FADA would legally enshrine anti-LGBTQ discrimination, and 

allow anyone to discriminate- without consequences under existing federal protections- against someone known 

or beHeved to be in a same-sex partnership or unmarried heterosexual partnership. 

Conclusion 

We urge the Committee to reject the First Amendment Defense Act (FADA) as the most recent attempt to 

legislate hate. This bill does not fu!fi!l its purported aim of protecting re!lgious freedom but !n fact only perpetuates 

existing prejudice against lGBTQ people. The National LGBTQ Task Force Action Fund believes in the importance of 

religion and promotes faith~based organizing. For many LGBTQ people, faith is a persona!, positive, and affirming 

part of who they are. Nevertheless, we oppose the use of rellglon as a vehicle for dlscrimlnatlon. FADA distorts the 

principle of religious freedom and is an affront to basic human dignity. 

In addition, this bill's introduction at the present t!me is perverse and insulting in the aftermath of a major 

violent attack on the LGBTQ community in Orlando, especially while Congressional lawmakers have failed to 

introduce any proposals to meaningfully address the causes of that violence. FADA is situated In a context of 

continuous anti-LGBTQ legislative proposals and overt violence targeting our community centers. We urge 

members of the Committee to vote against FADA and stand on the side of justice for all Americans. 
203 


KING-6430 with DISTILLERInsert offset folio 142 here 23645.142

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 

Testimony of 

Maggie Garrett 

Legislative Director of 

Americans United for Separation of Church and State 

Submitted to the 

U.S. House of Representatives 

Committee on Oversight and Government Reform 

Written Testimony for the Hearing Record on 

"Religious Liberty and H.R. 2802, the First Amendment 

Defense Act (FADA)" 

July 12, 2016 
204 


KING-6430 with DISTILLERInsert offset folio 143 here 23645.143

On behalf of Americans United for Separation of Church and State, I submit this written 

testimony for the hearing titled "Religious Liberty and H.R. 2802, the First Amendment Defense 

Act (FADA)." We strongly oppose FADA because it would sanction discrimination under the 

guise of religious freedom-harming couples and families, and violating the U.S. Constitution. 

When state legislatures across the country considered similar measures, faith communities, 

businesses, civil rights organizations, legal scholars, and the public strongly voiced the same 

objections. It was no surprise, therefore, that the U.S. District Court for the Southern District of 

Mississippi just struck down a nearly identical law in Mississippi as unconstitutional, concluding 

that FADA "violates both the guarantee of religious neutrality and the promise of equal 

protection of the laws."1 

Freedom of religion is a fundamental American value that is protected by the First Amendment. 

It allows all of us the freedom to believe or not as we see fit, but it does not allow us to use 

religion as an excuse to deny couples the legal rights and benefits of marriage. The right to 

believe is fundamental; the right to discriminate-especially with taxpayer dollars-is not. 

Accordingly, we oppose this bill. 

f'AOA !j; a Sweepingj3ill II!<!! Would t\llow Discrimination By Man_y Against Many, 

FADA allows those who hold the religious belief that marriage is between "one man and one 

woman, or that sexual relations are properly reserved to such a marriage," to ignore laws that 

conflict with that belief. Individuals, businesses, healthcare providers, government employees, 

and taxpayer-funded entities would all be entitled to use FADA to get around nondiscrimination 

protections. The result: same-sex couples, unmarried couples, couples in which one person had 

been married before, single mothers, and anyone who has had sex outside of marriage could 

face discrimination. Even the children of parents who fall within any of these categories could 

lose nondiscrimination protections they would otherwise have. 

A few of the many troubling claims we could see if FADA were enacted include: 

An employee at the IRS could refuse to process the joint tax return of a same-sex 

couple, or an employee at the Federal Emergency Management Agency (FEMA) could 

refuse to help an unmarried couple who lost their home in a natural disaster. 

A homeless shelter or food bank that receives federal money could refuse to serve a 

same-sex couple, a single mother in need, or their children. 

A landlord could refuse to rent to an unmarried couple or an unwed mother. 

A business could deny gay and lesbian employees family and medical leave to care for a 

sick spouse. 

Such discrimination cannot be justified. 

1 Barber v. Bryant, No. 3:16-cv-417-CWR-LRA, 2016 WL 3562647, at *1 (S.D. Miss. June 30, 2016). 

1 
205 


KING-6430 with DISTILLERInsert offset folio 144 here 23645.144

FADA Would Violate Rather than Protect the First Ar:mmdment of the 1,1.~. (;onstitution-' 

Ironically, the First Amendment Defense Act violates both the Establishment and Free Speech 

Clauses of the First Amendment. 

FADA Favors Certain Religious Viewpoints Over Others. 

"The clearest command of the Establishment Clause is that one religious denomination cannot 

be officially preferred over another." 2 A law that gives a stamp of approval to one particular 

religious viewpoint "must be treated as 'suspect"' and, thus, "must be justified by a compelling 

governmental interest," and "closely fitted to further that interest."3 FADA cannot meet this 

standard. 

FADA gives preference to the religious beliefs that marriage should be between "one man and 

one woman" and "that sexual relations are properly reserved to such a marriage" by allowing 

adherents to ignore certain laws. As explained in Barber v. Bryant, which held the Mississippi 

FADA unconstitutional, the law "put its thumb on the scale to favor some religious beliefs over 

others."4 Yet, the government lacks a compelling interest to do so.5 

Although some claim that FADA accommodates free exercise, there are not "any actual, 

concrete problem of free exercise violations" that this bill would address. 6 FADA would grant 

nearly any person or entity a blanket exemption from any law that conflicts with their beliefs 

about marriage and sex, even if they cannot demonstrate their religion has been burdened. 

There is, however, no compelling interest in granting an exemption that does not lift a religious 

burden.7 Even if one were to argue the law serves a compelling interest, the exemption is 

sweeping in scope and not narrowly tailored. 

FADA Would Harm Others. 

Although the state may offer religious exemptions even where it is not required to do so by the 

Free Exercise Clause of the U.S. Constitution,8 its ability to provide religious accommodations is 

not unlimited: "At some point, accommodation may devolve into an unlawful fostering of 

religion"9 that violates the Establishment Clause of the U.S. Constitution. Thus, a religious 

exemption "must be measured so that it does not override other significant interests" and may 

not "impose unjustified burdens on other[s]." 10 In Estate of Thornton v. Ca/dor, Inc., 11 for 

2 Larson v. Valente, 456 U.S. 228, 244 (1982). 3 Barber, 2016 WL 3562647, at *30 (citing Larson, 456 U.S. at 246-47). 4 /d. at *1. 5 /d. at *30. 6 /d. 

7 11 0f course, in order to perceive the government action as a permissible accommodation of religion1 there must in 

fact be an identifiable burden on the exercise of religion that can be said to be lifted by the government action." 

Corp. of the Presiding Bishop v. Amos, 483 U.S. 327,348 (1987) (O'Connor, J., concurring). 8 Of course, in some instances exemptions may be constitutionally permissible but unwise public policy. 9 Corp. of the Presiding Bishop, 483 U.S. at 334-35 (internal quotation marks omitted). 10 Cutter v. Wilkinson, 544 U.S. 709, 722, 725 (2005); see also Texas Monthly, Inc. v. Bullock, 480 U.S. 1, 18 n.8 

(1989). 

11 472 U.S. 703, 704 (1985). 

2 
206 


KING-6430 with DISTILLERInsert offset folio 145 here 23645.145

example, the Supreme Court struck down a blanket exemption for Sabbatarians because it 

"unyielding[ly) weight[ed)" the religious interest "over all other interests," including the those 

of co,workers. 

FADA fails to take into account any of the sweeping harms it would cause to others. It 

empowers those with certain religious views to deny people-most obviously, but not only, 

same-sex couples-the rights and benefits of marriage, access to public accommodations, 

protections from nondiscrimination laws, and access to healthcare. The bill provides "an 

absolute right to refuse service to LGBT [and other] citizens without regard for the impact on 

their employer, coworkers, or those being denied service."12 Under this bill, for example, a 

taxpayer-funded homeless shelter could refuse a single mother and her child a bed or a 

taxpayer-funded domestic violence shelter could refuse to provide a woman safety because she 

is living with a man who is not her husband. The clear result is an "unjustified burden" on and 

harm to others. That is impermissible under the Establishment ClauseY 

FADA Would Give Religious Organizations Discretionary Government Powers. 

In accordance with FADA, nonprofit organizations could take state, local, and federal funds to 

provide services to the public and then use a religious litmus test to determine whom they will 

and will not serve. This is not just unfair, but unconstitutional. In Larkin v. Grendel's Den/4 for 

example, the Supreme Court overturned a law that allowed churches to veto applications for 

liquor licenses in their neighborhoods. The Court explained that that the Establishment Clause 

prohibits the government from delegating or sharing "important, discretionary governmental 

powers" with religious institutions.15 FADA, however, would delegate government authority to 

religious organizations and specifically allow them to use religious criteria to determine who 

gets and who is denied public services. 

FADA Constitutes Content-Based Discrimination. 

Laws that target speech based on content, or subject matter, are subject to "strict scrutiny" and 

are "presumptively unconstitutional."16 In Reed v. Town of Gilbert, 17 a church successfully 

challenged a sign ordinance that treated political signs more favorably than the church's 

meeting signs. Justice Clarence Thomas, writing for the Court, explained that a law that "singles 

out [a) specific subject matter for differential treatment, even it if does not target viewpoints 

within that subject matter" is "a paradigmatic example of content-based discrimination."18 

FADA falls into the same trap: On its face, it treats speech and activities "related to marriage 

between two people, including the belief that marriage should only be between a man and a 

woman or that sexual relations are properly reserved to such a union," differently than all other 

12 Barber, 2016 WL 3562647, at *31. 13 /d. at *31-32 (explaining that the Mississippi FADA violates "this 'do no harm' principle."). 14 459 u.s. 116, 127 (1982). 

15/d. 

16 Reed v. Town of Gilbert, 135 s. Ct. 2218, 2226 (2015). 

17 /d. 18 !d. at 2223. 

3 
207 


KING-6430 with DISTILLERInsert offset folio 146 here 23645.146

speech on other subject matters. This differential treatment cuts across a host of topics spelled 

out under the bill, including taxes and government benefits. 

FADA Constitutes Viewpoint Discrimination. 

As also explained in Reed, "government discrimination among viewpoints-or the regulation of 

speech based on 'the specific motivating ideology or the opinion or perspective of the 

speaker' -is a 'more blatant' and 'egregious form of content discrimination."'19 Indeed, "the 

government must abstain from regulating speech when the specific motivating ideology or the 

opinion or perspective of the speaker is the rationale for the restriction."20 In Rosenberger v. 

Rector & Visitors of the University of Virginia/1 the U.S. Supreme Court explained that a state 

university newspaper could not treat "student journalistic efforts with religious editorial 

viewpoints" differently. FADA runs afoul of this rule because it treats religious viewpoints on 

marriage differently. 

fADAWould Violate the Equal PrQ!E!_<;tion Clause of th_e_~·~· Constitut)QI"!, 

FADA would affect many people-unmarried couples, couples in which one person had been 

married before, single mothers, anyone who has had sex outside of marriage, and the children 

of people whose relationships are disfavored. Yet, it is clear that the main target of FADA is 

LGBT couples. This violates the most basic principles of Equal Protection: "Central both to the 

idea of the rule of law and to our own Constitution's guarantee of equal protection is the 

principle that government and each of its parts remain open on impartial terms to all who seek 

its assistance."22 

For example, when the state of Colorado adopted a constitutional amendment to overturn all 

state and local nondiscrimination protections for LGB Coloradans and to prohibit state and local 

governments from instituting new nondiscrimination protections, the justification for the law 

was that it would protect those "who have personal or religious objections to homosexuality." 23 

The Supreme Court, however, rejected these justifications and determined that the law was 

unconstitutional because its intent was to make LGB Coloradans "unequal to everyone else.'' 24 

FADA has the same insufficient and unconstitutional justification because it is explicitly aimed 

at treating LGBT Americans differently than all others. FADA grants "special rights," to those 

who do not want to serve LGBT Americans. 25 LGBT Americans, on the other hand, "are 'put in a 

solitary class with respect to transactions and relations in both the private and governmental 

spheres' to symbolize their second-class status." 26 In short, FADA "would demean LGBT citizens, 

remove their existing legal protections, and more broadly deprive them their right to equal 

19 !d. at 2230 (citing Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)). 20 ld. (citing Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37,46 (1983)). 21 515 u.s. at 831. 22 Romer v. Evans, 517 U.S. 620, 633 (1996). 23 ld. at 635. 24 ld. 25 Barber, 2016 WL 3562647, at *20. 26 /d. (citing Romer, 517 U.S. at 627). 

4 
208 


KING-6430 with DISTILLERInsert offset folio 147 here 23645.147

treatment under the law." 27 As explained in Barber: "The deprivation of equal protection of the 

laws is [FADA's] very essence."28 

Congress GirtrLQ1 Fix £~DA. 

Although no member of Congress has formally introduced a substitute version of FADA, some 

have proposed that FADA can be fixed if amended to prohibit government employees, publicly 

traded businesses, and federal contractors from using it.29 Even with this amendment, 

however, individuals, closely held corporations, 30 and entities that accept taxpayer-funded 

grants could still use FADA to discriminate. For example, a taxpayer-funded mental health 

facility could still turn away a teenager because his parents are a same-sex couple. And Hobby 

Lobby, a company with an estimated $3.3 billion revenue and 23,000 employees/ 1 could still 

disregard nondiscrimination laws that protect their employees and customers. 

The underlying goal behind FADA is to allow discrimination. There is no way to fix a bill that 

maintains that goal. Thus, there is unlikely to be any version of FADA that would not harm 

others and could survive constitutional scrutiny. Rather than tinkering around the edges, 

Congress should simply reject this bill. 

27 td. at *21. 28 /d. at * 23. 29 Press Release, Sen. Mike Lee, Lee Releases Finalized First Amendment Defense Act (Sept. 14, 2015), available at 

http://www.lee.senate.gov/public/index.cfm/press-releases?ID=8e6fc9c9-730f-49a6-ad32-82e486f6e5bb. 

30 The 2012 U.S. Census found that there are 2.9 million closely-held S corporations employing more than 29 

million Americans. Drew Desilver, What is a 'Closely Held Corporation,' Anyway, and How Many Are There, Pew 

Research Center, http://www. pewresea rch .org/fact-tank/20 14/07/07/what-is-a-closely-held-corporation-anywayand-how-many-are-there. 

31 /d. 

5 
209 


KING-6430 with DISTILLERInsert offset folio 148 here 23645.148

I N c L R I NATIONAL CENTER FOR LESBIAN RIGHTS 

United States House of Representatives 

Committee on Oversight and Government Reform 

"H.R. 2802: The First Amendment Defense Act" 

July 12, 2016 

Statement of the National Center for Lesbian Rights 

The National Center for Lesbian Rights (NCLR) is a non-profit, public interest law firm that 

litigates precedent-setting cases at the trial and appellate court levels, advocates for equitable 

public policies affecting the lesbian, gay, bisexual, and transgender (LGBTQ) community, 

provides free legal assistance to LGBTQ people and their legal advocates, and conducts 

community education on LGBTQ issues. NCLR has been advancing the civil and human rights 

of LGBTQ people and their families across the United States through litigation, legislation, 

policy, and public education since it was founded in 1977. We appreciate the opportunity to 

provide this statement for the record in opposition to H.R. 2802. 

I. H.R. 2802 Would Harm Those Who Currently Suffer from Discrimination and Violence 

One month ago today, the LGBT community was devastated by a horrific hate crime in 

Orlando, Florida, in which the lives of 49 people were brutally taken. Rather than convening a 

hearing to address nonexistent threats that LGBT people are claimed to pose to First 

Amendment religious liberties, members of Congress should be exercising leadership in the 

face of widespread and ongoing discrimination and violence against LGBT Americans, people 

of color and the Muslim community. Expending legislative time and resources to advance 

legislation that would write into federal law sweeping exemptions from essential antidiscrimination laws is especially unfortunate- and deeply insensitive- at this particularly 

painful time in our nation. Instead, this Congress should swiftly consider and pass the Equality 

Act (H.R. 3185), a measure that would amend our existing civil rights laws to ensure that LGBT 

Americans are afforded the basic protections they need to live full and productive lives. 

What happened in Orlando- while profoundly shocking in its magnitude- was not an isolated 

incident. Members of the LGBTQ community consistently make up the second-largest number 

of hate crimes victims every year. 1 last year alone, the number of reported LGBTQ victims of 

1 Crime Statistics, THE FEDERAL BuREAU OF INVESTIGATION, https://www.fbi.gov/stats-services/crimestats {last visited 

July 7, 2016). 
210 


KING-6430 with DISTILLERInsert offset folio 149 here 23645.149

homicides increased by 20%. 2 Additionally, LGBTQ individuals and their families are more 

likely than their peers to experience homelessness, poverty, family disruption, obstacles to 

positive youth development, violence, and other difficulties.' In the absence of inclusive and 

comprehensive federal and state anti-discrimination laws, housing and employment 

discrimination continue to plague the LGBTQ community. H.R. 2802 would only exacerbate 

the institutional and societal bias that already subjects members of the LGBTQ community to 

disproportionate risks to their economic, physical, and social well-being. 

II. H.R. 2802 Would Promote Taxpayer-Funded Discrimination 

H.R. 2802, if enacted, would be an invitation to engage in widespread and unprecedented 

taxpayer-funded discrimination against LGBT people, single mothers, and unmarried couples. 

The bill would: 

permit government employees to discriminate against married same-sex couples and 

their families-- federal employees could refuse to process tax returns, visa 

applications or Social Security checks for all married same-sex couples; 

allow businesses to discriminate by refusing to let employees care for a sick same-sex 

spouse, in violation of family medical leave laws; 

allow federal contractors or grantees, including those that provide important social 

services like homeless shelters or drug treatment programs, to turn away LGBT people 

or anyone who has a sexual relationship outside of a marriage; 

let commercial landlords violate longstanding fair housing laws by refusing housing to 

a single mother based on the religious belief that sexual relations are properly 

reserved to marriage; 

permit a university to continue to receive federal financial assistance even when it 

fires an unmarried teacher simply for becoming pregnant; 

impair the ability of federal agencies like the EEOC to enforce laws that offer 

protections to LGBT people from discrimination in education, employment or housing; 

2 Emily Waters, et al., Lesbian Gay, Bisexual, Transgender~ Queer, and HIV~Affected Hate Violence in 2015, THE 

NATIONAL COALIT!ON OF ANT!~V!OLENCE PROGRAMS, 9 {2016), available at 

http://www .avp.org/storage/ documents/ncavp_hvreport_ 2015 _final. pdf. 3 Andrew Burwick, eta!., Human Services for Low~lncome and At~Risk LGBT Populations: An Assessment of the 

Knowledge Base and Research Needs, xi (Dec. 2014}, available at 

http;/ /www .acf.hhs.gov/sites/default/files/opre/lgbt_hsneeds _assessment_ reportfina!1_12_15.pdf. 

2 
211 


KING-6430 with DISTILLERInsert offset folio 150 here 23645.150

prevent the government from refusing to employ an employee assistance counselor 

who lost their license or accreditation because of telling LGBT patients that their 

relationships are an abomination; and 

allow any of these individuals, businesses or groups, or anyone else who believes they 

may somehow be required by the federal government to do something that implicitly 

condones marriage for same-sex couples or sexual relationships outside of marriage, 

to file a lawsuit and potentially receive damages from taxpayer money. 

Proponents of H.R. 2802 and similar legislation maintain that it is necessary to prevent the 

government from forcing churches to officiate same-sex weddings or else lose federal tax 

benefits. This is completely untrue. Clergy and houses of worship of all faith traditions are 

already protected under the Constitution, federal law, and Supreme Court precedents from 

being required to sanctify or approve of any marriage or other relationships that violate their 

religious tenets. H.R. 2802 would address a fictitious harm while imposing actual harms of 

millions of Americans. 

Ill. Congress Should Not Advance Legislation That Has Been Rejected by the States and 

the Courts 

In the past two years, several state legislatures have introduced bills similar to H.R. 2802, 

which have elicited nationwide opposition and concern. For example, following enactment of 

Indiana's so-called "religious freedom" law in 2015, both business leaders and members of the 

general public expressed such serious concerns about the law that the legislature was forced 

to quickly pass, and the governor to sign, an amendment to ensure legal protection for LGBT 

people. Measures in other states have been defeated after similarly encountering significant 

bipartisan opposition. One of the very few such measures that have been enacted into law, 

HB 1523 in Mississippi, was struck down two weeks ago by a federal district court judge, who 

found that it violated both the Establishment Clause and the Equal Protection Clause of the 

U.S. Constitution. U.S. District Court Judge Carlton W. Reeves, in a lengthy and detailed 

opinion, found that HB 1523 ran afoul of the First Amendment in two ways- by establishing 

"an official preference for certain religious beliefs over others" and because "its broad 

religious exemption comes at the expense of other citizens."4 H.R. 2802 would similarly violate 

the First Amendment, the very provision of the Constitution that it purports to defend. 

These state-level versions of H.R. 2802 have been widely recognized, condemned and rejected 

as the broad attack on LGBT people that they are. Under the guise of invented threats to 

religious freedom, opponents of LGBT equality are now attempting to bring this misguided 

effort to enshrine discrimination to the federal level, through both amendments to 

appropriations measures stand-alone legislation such as H.R. 2802. This effort should be 

rejected. 

4 Barber v. Bryant, 2016 WL 3562647, *27, 31 {S.D. Miss. June 30, 2016). 

3 
212 


KING-6430 with DISTILLERInsert offset folio 151 here 23645.151

IV. Conclusion 

Religious freedom is a cornerstone of our nation. That venerable and foundational freedom 

has never been-and must not become-a license to mistreat and discriminate against 

others. The term "religious freedom" should not be misused to justify laws designed to 

stigmatize, isolate, and harm vulnerable and marginalized groups. H.R. 2802 seeks to 

empower those who wish to harm those families that look different from their own, or who 

differ from a particular vision of family promoted by certain religious tenets. LGBT couples, 

single mothers, and unmarried couples would become targets of legally sanctioned 

mistreatment. We urge this committee to reject this dangerous legislation and instead devote 

its efforts to ensuring that all people, and all families, are afforded the full and equal 

protection of our laws. 

4 
213 


KING-6430 with DISTILLERInsert offset folio 152 here 23645.152

s 

The Honorable Jason Chaffetz 

Washington, DC 20515 

Chairman Chaffetz, 

Next week the House Oversight and Government Reform 

H,R 2802:, the First Amendment Defense Act. 

this flawed and unnecessary legislation, 

Ju!y 5, 2016 

compromise. The provides an 

overly broad framework that wlll on!y lead to needless titigation and unintended consequences. 

for discrimination based on mere whim. 

People of faith are protected by our nation's ultimate law: The Constitution of the United States of 

America. LGBT Americans have no such federal protections; in 28 states there are no laws whatsoever 

protecting LGBT Amerkans from discrimination. 

log Cabin Republicans will continue in dialogue with common·sense conservatives and people of fa\th as 

we work to strike a balance between LGBT equality and re!lgious liberty. Discussion- not legislation- is 

what is needed at the present time. 

cc: Oversight & Government Reform Committee members 

President 
214 


KING-6430 with DISTILLERInsert offset folio 153 here 23645.153

ill NAT I 0 N A L ~ ,..~ w 0 M E N I s 

LAW CENTER EXPANDING THE POSSIBiliTIES 

July 12, 2016 

Chairman Chaffetz 

Ranking Member Cummings 

Committee on Oversight and Government Reform 

U.S. House of Representatives 

2157 Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Chaffetz and Ranking Member Cummings: 

On behalf of the National Women's Law Center, which has been working since 1972 to 

secure and defend women's legal rights and to help women and families achieve economic 

security, we write in opposition to the First Amendment Defense Act ("FADA"; H.R. 2802), a 

discriminatory bill that undermines and weakens established federal civil rights law-with 

particularly negative implications for unmarried working women. This bill is the latest attempt 

in a prolonged campaign to legislatively sanction discrimination against women, LGBTQ 

individuals, and others, under the guise of moral or religious beliefs. By prohibiting the federal 

government from penalizing otherwise unla\\ful behavior when it is motivated by a belief that 

marriage should be limited to different-sex couples and that sexual relations should only occur 

within such a marriage, F ADA invites discrimination on the basis of sex, pregnancy, sexual 

orientation, and gender identity. LGBTQ women; tuunarried women who use contraception or 

become pregnant; and unmarried mothers would all be targets of discrimination that the federal 

government would be prohibited from opposing under this bill. 

For example, H.R. 2802 would empower federal contractors to terminate unmarried women 

who became pregnant, or women in same-sex married couples who become pregnant, by 

prohibiting the federal government from terminating any contract on the basis of actions 

motivated by a belief that sexual relations should only occur between married different-sex 

couples. The alternate version of the bill circulated by Senator Lee would have the same effect 

as to non-profit federal contractors. Similarly, both H.R. 2802 and Senator Lee's version would 

have the effect of prohibiting the federal government from enforcing Title IX's protections 

against pregnancy discrimination and sex discrimination if a school receiving federal grants 

sought to expel unmarried pregnant students or unmarried female students with children. Under 

both H.R. 2802 and Senator Lee's version, an insurance plan that denied coverage of 

contraceptives and maternity coverage for women not married to men, in violation of federal 

law, could not be excluded from the federal health insurance exchange on this basis. Both 

With the law on your side, great things are possible. 

11 Dupont Circle# Suite 800 #Washington, DC 20036 # 202.588.5180 1202.588.5185 Fax# www.nwlc.org 
215 


KING-6430 with DISTILLERInsert offset folio 154 here 23645.154

versions of the bill would empower hospitals and other health care providers to deny 

reproductive health care to unmarried women. Indeed, the bill could give many employers the 

mistaken impression that they are permitted to discriminate against unmarried pregnant 

employees without fear of federal enforcement of Title VII of the Civil Rights Act of 19641 and 

the Pregnancy Discrimination Act (PDA).2 For all these reasons and many more, FADA 

jeopardizes women's economic security and reproductive freedom. Deciding whether and when 

to have children is a private health decision of enormous economic consequence and women 

must be able to make that decision without fear of discrimination. We strongly oppose this bill's 

contravention of civil rights law and a woman's constitutional right to make reproductive health 

decisions, most recently affirmed in the case of Whole Woman's Health v. Hellerstedt.3 

The bill also threatens grave harm to women in same-sex marriages or same-sex 

relationships, by hamstringing federal enforcement of a range of federal protections against 

discrimination on the basis of sexual orientation or gender identity. For example, H.R. 2802 

would render enforcement of Executive Order 13672, prohibiting federal contractors from 

discriminating in employment on the basis of sexual orientation or gender identity, nearly 

impossible if a contractor claimed its discrimination was based on a moral objection to sexual 

relations outside marriage between different-sex couples. Senator Lee's alternative would have 

the same effect as to non-profit federal contractors. 

Advancing legislation that promotes discrimination under the guise of religious or moral 

freedom is deeply harmful to women. It is time to end the campaign to undermine women's 

freedom to make personal health choices without interference or repercussions. We oppose 

FADA, which only promotes intolerance, discrimination, and inequality. 

Sincerely, 

Emily J. Martin 

Vice President of Workplace Justice 

& General Counsel 

National Women's Law Center 

I [d. 

2 42 u.s.c. § 2000e(k). 

'579 u.s.-(2016). 

Jan I George 

Director of Federal Reproductive 

Rights & Health 

National Women's Law Center 

ll Dupont Circle# Suite 800 #Washington, DC 20036 # 202.588.5180 < 202.588.5185 Fax# ll')VW.nwlc.org 
216 


KING-6430 with DISTILLERInsert offset folio 155 here 23645.155

BARRY LOUDERMILK 1llf101SHUCT,GF.OIW!A 

HOMELAND SECURITY COMMITTEE 

- CHAIRMAN OF SUBCOMMITTEE 

ON OVERSIGHT 

mnugrt.Gll nf tlye lltufte.b g,tates 

jl!;lou55c of l\eprc55entatibe55 

llanl)lngtnn. lllQJ: 2U515-1U 11 

The Honorable Kasim Reed 

Mayor of Atlanta 

Office of Communications 

55 Trinity Avenue, Suite 2500 

Atlanta, Georgia 30303 

Dear Mayor Reed: 

February 10,2015 

As Members of Congress representing the state of Georgia, we write to express our concern about the 

recent termination of Chief Kelvin Cochran of the Atlanta Fire Rescue Depmtment on January 6, 2015. 

Chief Cochran's termination appears to have occurred because he wrote a 160 page book for his bible 

study in which one and a half pages describe his Christian beliefs regarding proper sexual ethics. Despite 

writing the book on his own time, Chief Cochran has been accused of engaging in "discrimination" for 

merely expressing his religious beliefs. 

Chief Cochran's book was published over a year ago, and there is no evidence that Chief Cochran has 

ever discriminated against or been the subject of any complaints of discrimination while setving in the 

Atlanta Fire Rescue Depattmetlt. 

Your action against Chief Cochran appears to violate fundamental principles of free speech and religious 

freedom. Chief Cochran relied upon religious text from the Bible to expi·ess his opinions in his personal 

writings. The only way Chief Cochran could avoid his views would be to disown his religion. Indeed, in 

terminating him, the City of Atlanta itself engaged in 811 act of discrimination, and worse, did so on the 

basis of his religious beliefs. 

As fellow Georgians, we are extremely troubled that a capable and long-standing public setvant in our 

state can be targeted for J'etaliation and dismissal solely because of his religious views. Chief Cochran's 

views did not hmm his ability to carry out his duties at the Atlanta Fire Rescue Department, and thus his 

speech should have been protected. 

Chief Cochran notes that the city justified his tennination on the grounds of"tolerance" and "inclusion" 

yet asks, "What could be more intolerant and exclusionary than ending a public setvant's 30 years of 

distinguished service for his religious beliefs?" We agree and respectfully ask that you reconsider your 

decision to terminate Chief Cochran, and reinstate him in his position. 

Sincerely, 

PRiNTED ON RECYClED PAPER 
217 


KING-6430 with DISTILLERInsert offset folio 156 here 23645.156

~w~ 

~~~ Member of Congress 

~.~ Member of Congress 
218 


KING-6430 with DISTILLERInsert offset folio 157 here 23645.157

A\JTH~NT!CAHP!J U i> COVEI<NM!f~T 

!"'FORJ\\A':'ION 

CPO 

114TH CONGRESS 

1ST SESS!O:-.i H.R. 2802 

To prevent discriminatory treatment of any person 011 the basis of views 

helrl "~th respect to marriage. 

IN TIIE HOUSE OF REPRESENTATI\TES 

,JPN!l 17, 2015 

Mr. h\JlRADOR (for himself, Mr. CoLI,IXS of Georgia, :VIr .. JONES, J\!Ir. SEsfl!O!\'R, :V1r. Dn·ICAN of South Carolina, Mrs. HARTZI,EH, Mr. CRA~JER, 

:\l!r. KE1:GEHAUER, :.VIr. PE,\JWE, Mr. LAMBOHN, :.Vir. S,\M JOHNRON of 

Texas, Mr. SANI•Y>HD, l\lrs. Bln\CKB!lHN, Mr. ROTIJPF~, Mr. FR.\NKS of 

Arizona, lllr. liiFLLI:-.r, l\:[r. PO~Il'EO, Mr. SMITII of Texas, Mr. 

PITTENGEH, !\11-. v\'ALBEHG, Mr. JOllY B. HICE of Geor(,>ia, i\lr. M,mcHANT, Mr. LIPINSKI, !\lr. ,JOHDAN, i\lr. PAL~mn, :.Vir. MEADOWS, Mr. 

ALLE:-.r, Mr. HPELSKAMP, l\11·. PITTS, i\lr. GJLWES of Georgia, l\Ir. l\1ILLER of Florida, l\Ir. GAHllET'r, :Vir. FI!\'CHER, Mr. SALMON, Mr. WEST-

~IORELAND, Mr. Sllll'l'll of New Jersey, i\lr. GROT!liiL~:-1, Mr. IL\J\RIS, 

Mrs. \VAU:-JER, l\lr. WEBER of Texas, l\lr. !<'LEMINU, Mr. KELLY of Pennsylvania, :VIr. BABIN, J\lr. Ymro, Mr. C!!AFI•'ETII, Mr. FOH'l'E~BERHY, l\lr. 

PALAZ/10, Mr. CmTER of '!'t<xas, :Vir. ROllZEH, Mt·s. BLACK, )fr. BHAT, 

Mr. MoO:-JEY of West Yirginia, 1lr. GOSAH, Mr. BUll-lOP of Utah, Mrs. 

10\'E, :Vk GOWDY, i'lh·. ADEHHO!!f, am] :.Vlr. STEWAH'l') introduced the 

following bill; which was ref(~nprl to the Committee on 0\'ersight and 

GO\·ernment Reform, awl in addition to the Committee on \Vays and 

.J\rfeans, for a period to be snb~equentl;y determined by the Speaker, in 

mwh ease for eousideration of such proYisious as fall within the jurisdietion of the eommit.t.ee eom:erned 

A BILL 

To prevent discriminatory treatment of any person on the 

basis of views held with respect to marriage. 
219 


KING-6430 with DISTILLERInsert offset folio 158 here 23645.158

2 

Be it enacted by the Senate and House of Representa2 t·ives ofthe United States (!f'Ameriea in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "First Amendment De5 fense Act". 

6 SEC. 2. FINDINGS. 

7 CongTess finds the following: 

8 (1) JJeading legal scholars concur that conflicts 

9 between same-sex marriage and religions liberty arc 

10 real and should be legislatively addressed. 

11 (2) As the President stated in response to the 

12 decision of the Supreme Court on the Defense of 

13 ~Iarriage Act in 2013, "Americans hold a wide 

14 rang·e of views" on the issue of same-sex marriag·e, 

15 and "maintaining our Nation's commitment to reli16 gious freedom" is "vital". 

17 (3) Nevertheless, in 2015, when asked whether 

18 a religious school could lose its tax-exempt status for 

19 opposing same-sex marriage, the Solicitor General of 

20 the United States represented to the United States 

21 Supreme Court that "lilt's certainly going to be an 

22 issue". 

23 ( 4) Protecting religious freedom from Govern24 ment intrusion is a Goyernment interest of the hig·h25 est order. lJegislatively enaeted measures advance 

•HR 2802 IH 
220 


KING-6430 with DISTILLERInsert offset folio 159 here 23645.159

3 

this interest by remedying, deterring, and preventing 

2 Government interference vvith religious exercise in a 

3 way that eomplements the protections mandated by 

4 the First Amendment to the Constitution of the 

5 United States. 

6 (5) l.Jaws that proteet the free exercise of reli7 gious beliefs and moral com1.etions about marriage 

8 will encourage private citizem; and institutions to 

9 demonstrate tolerance for those beliefs and eonvic1 0 tions and therefore contribute to a more respectful, 

11 diverse, and peaceful society. 

12 SEC. 3. PROTECTION OF THE FREE EXERCISE OF RELI13 GIOUS BELIEFS AND MORAL CONVICTIONS. 

14 (a) IN GE~ERAL.-Notwithstanding any other provi15 sion of law, the Pederal Government shall not take any 

16 discriminatory action against a person, wholly or partially 

17 on the basis that such person helieYes or aets in aceord18 anee with a religious belief or moral convietion that mar19 riage is or should be recognized as the union of one man 

20 and one woman, or that sexual relations are properly re21 served to such a marriage. 

22 (b) DISCRIMINATORY ACTION DEPINED.-As used in 

23 subseetion (a), a discriminatory action means any aetion 

24 taken by the I<~cderal GoYernmcnt to-

•HR 2802 IH 
221 


KING-6430 with DISTILLERInsert offset folio 160 here 23645.160

4 

(1) alter in any way the Federal tax treatment 

2 of, or cause any tax, penalty, or payrnent to be as3 sessed agaiust, or deny, delay, or revoke an exemp4 tion from taxation under section 50l(a) of the InterS nal Uevenue Code of 1986 of, any person referred to 

6 in subseetion (a); 

7 (2) disallow a deduction for Federal tax pur8 poses of any eharitable eontribution made to or by 

9 such person; 

10 (:3) withhold, reduce, exclude, terminate, or oth11 erwise deny any Federal grant, contract, sub12 contract, cooperative agTecment, loan, license, cer13 tification, accreditation, employment, or other sum14 lar position or status from or to sueh person; 

15 ( 4) withhold, reduce, exclude, terminate, m· oth16 erwise deny any benefit under a :B'ederal benefit pro17 gTam from or to such person; or 

18 ( 5) otherwise discriminate against such person. 

19 (c) AC:CHEDITATION; LICENSL'HE; CERTH'lCATION.-

20 The Federal Government shall consider accredited, li21 censed, or certified for purposes of Federal law any person 

22 that would be aceredited, licensed, or certified, respec23 tiYcly, for such purposes hut for a determination against 

24 such person wholly or partially on the basis that the per25 son believes or acts in aceordanee vvith a religious belief 

•HR 2802 IH 
222 


KING-6430 with DISTILLERInsert offset folio 161 here 23645.161

5 

or moral comiction that marriage is or should he recog2 nized as the union of one man and one woman, or that 

3 sexual relations are properly reserved to such a marriage. 

4 SEC. 4. JUDICIAL RELIEF. 

5 (a) CAURE OF ACTION.-A person may assert an ac6 tual or threatened violation of this Aet as a elaim or de7 fense in a judieial or administrative proeeeding and obtain 

8 compensatory damages, injunetive relief, deelaratory re9 lief, or any other appropriate relief against the Federal 

10 Government. Standing to assert a claim or defense under 

11 this section shall be governed by the general rules of 

12 standing under Article III of the Constitution. 

13 (h) .ADlVIINISTRATIVE RgJYIEDIES NOT REQUIRED.-

14 Notwithstanding any other provision of law, au action 

15 under this section may be commenced, and relief may he 

16 granted, in a United States district court without regard 

17 to whether the person eommeneing the action has sought 

18 or exhausted available administrative remedies. 

19 (e) AT'rORNEYS' FEES.-Section 722(b) of the Re20 vised Statutes ( 42 U.S.C. 1988(b)) is amended by insert21 ing "the :B'irst Amendment Defense Aet," after "the Reli22 g1ous IJand Use and Institutionalized Persons Act of 

23 2000,". 

24 (d) AUTHORI'l'Y OF U!\ITED STATES To E!\FORCE 

25 Tms AcT.-The Attorney General may bring an aetion 

•HR 2802 IH 
223 


KING-6430 with DISTILLERInsert offset folio 162 here 23645.162

6 

for injnnctive or dcelaratory relief against an independent 

2 establishment described in seetion104(1) of title 5, United 

3 States Code, or an officer or employee of that independent 

4 establishment, to enforce compliance with this Act. Noth5 ing in this subsection ~:;hall be construed to deny, impair, 

6 or otherwise affect any right or authority of the Attorney 

7 General, the United States, or any agency, officer, or em8 ployee of the United States, acting under any law other 

9 than this subsection, to institute or interTenc in any pro10 ceeding·. 

11 SEC. 5. RULES OF CONSTRUCTION. 

12 (a) BROAD CONSTRFCTION.-This Act shall be con13 strued in favor of a broad protection of free cxereise of 

14 religions beliefs and moral eonvictions, to the maximum 

15 eJo..'tent permitted by the terms of this Act and the Con16 stitution. 

17 (b) No PREE:\IPTION, REPEAL, OR NARROW CoN18 STRUC'l'ION.-Nothing in this Act shall be constmed to 

19 preempt State law, or repeal Federal law, that is equally 

20 or more protective of free exercise of religious beliefs and 

21 moral convictions. Nothing in this Act shall be construed 

22 to narrow the meaning or application of any State or Fed23 eral law protecting· free exercise of religious beliefs and 

24 moral convictions. Nothing in this Act shall be construed 

25 to prevent the Federal Gowrnment from providing, either 

•HR 2802 IH 
224 

Æ 


KING-6430 with DISTILLERInsert offset folio 163 here 23645.163

7 

directly or through a person not seeking protertion under 

2 this Act, any benefit or service authorized under Federal 

3 law. 

4 (c) SEVERAinLITY.-If any provision of this Act or 

5 any application of such prmision to any person or cir6 eumstanee is held to be unconstitutional, the remainder 

7 of this Act and the application of the provision to any 

8 other person or circumstance shall not be affected. 

9 SEC. 6. DEFINITIONS. 

10 In this Act: 

11 (1) FEDEI~U, BENEF'IT PROGHAM.-'l'he term 

12 "Federal benefit program" has the meaning given 

13 that term in section 552a of title 5, United States 

14 Code. 

15 (2) FEDERAL GOv'l~RNMI<JN'J'.-'l'he term "Fed16 eral Government" includes each authority of any 

17 branch of the Government of the United States. 

18 (:-l) PERSON.-'l'he term "person" means a per19 son as defined in section 1 of title 1, United States 

20 Code, and includes any such person reg-ardless of rc21 ligious affiliation or lack thereof, and regardless of 

22 for-profit or nonprofit status. 

0 

•HR 2802 lH