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The text of the bill below is as of Mar 8, 2018 (Introduced). The bill was not enacted into law.
IN THE SENATE OF THE UNITED STATES
Mr. Lee (for himself, Mr. Rubio , Mr. Crapo , Mr. Hatch , Mr. Inhofe , Mr. Blunt , Mr. Risch , Mr. Wicker , Mr. Enzi , Mr. Johnson , Mr. Rounds , Mr. Barrasso , Mr. Sasse , Mr. Hoeven , Mr. Thune , Mr. Paul , Mr. Perdue , Mr. Scott , Mr. Cotton , Mr. Boozman , Mr. Cruz , and Mr. Moran ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To ensure that the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person speaks, or acts, in accordance with a sincerely held religious belief or moral conviction that marriage is or should be recognized as a union of one man and one woman, or two individuals as recognized under Federal law, or that sexual relations outside marriage are improper.
This Act may be cited as the First Amendment Defense Act .
Congress finds the following:
Leading legal scholars concur that conflicts between same-sex marriage and religious liberty are real and should be addressed through legislation.
As President Obama stated in response to the decision of the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), Americans hold a wide range of views on the issue of same-sex marriage, and maintaining our Nation’s commitment to religious freedom is vital .
Nevertheless, in 2015, when asked whether a religious school could lose its tax-exempt status for opposing same-sex marriage, the Solicitor General of the United States Donald Verrilli represented to the United States Supreme Court that [i]t’s certainly going to be an issue .
Protecting religious freedom from government intrusion is a government interest of the highest order. Legislation advances this interest by remedying, deterring, and preventing government interference with religious exercise in a way that complements the protections mandated by the First Amendment to the Constitution of the United States.
Laws that protect the free exercise of religious beliefs and moral convictions about marriage will encourage private citizens and institutions to demonstrate tolerance for those beliefs and convictions and therefore contribute to a more respectful, diverse, and peaceful society.
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 persons with sincerely held religious beliefs or moral convictions to the contrary to conform.
Protection of the free exercise of religious beliefs and moral convictions
Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person speaks, or acts, in accordance with a sincerely held religious belief, or moral conviction, that—
marriage is or should be recognized as a union of—
one man and one woman; or
two individuals as recognized under Federal law; or
sexual relations outside marriage are improper.
Discriminatory action defined
As used in subsection (a), a discriminatory action means 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, or deny, delay, or revoke an exemption from taxation under section 501(a) of the Internal Revenue Code of 1986 of, any person referred to in subsection (a);
disallow a deduction for Federal tax purposes of any charitable contribution made to or by such person;
withhold, reduce the amount or funding for, 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;
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, from or to such person; or
withhold, reduce, exclude, terminate, or otherwise make unavailable or deny, access or an entitlement to Federal property, facilities, educational institutions, speech fora (including traditional, limited, and nonpublic fora), or charitable fundraising campaigns from or to such person.
Accreditation; licensure; certification
The Federal Government shall consider accredited, licensed, or certified for purposes of Federal law any person that would be accredited, licensed, or certified, respectively, for such purposes but for a determination against such person wholly or partially on the basis that the person speaks, or acts, in accordance with a sincerely held religious belief or moral conviction described in subsection (a).
Cause of action
A person may assert an actual or threatened violation of this Act as a claim or defense in a judicial or administrative proceeding and obtain compensatory damages, injunctive relief, declaratory relief, or any other appropriate relief against the Federal Government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
Administrative remedies not required
Notwithstanding any other provision of law, an action under this section may be commenced, and relief may be granted, in a district court of the United States without regard to whether the person commencing the action has sought or exhausted available administrative remedies.
Section 722(b) of the Revised Statutes ( 42 U.S.C. 1988(b) ) is amended by inserting the First Amendment Defense Act, after the Religious Land Use and Institutionalized Persons Act of 2000, .
Authority of United States To enforce this Act
The Attorney General may bring an action for injunctive or declaratory relief against an independent establishment described in section 104(1) of title 5, United States Code, or an officer or employee of that independent establishment, to enforce compliance with this Act. Nothing in this subsection shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General, the United States, or any agency, officer, or employee of the United States, acting under any law other than this subsection, to institute or intervene in any proceeding.
Rules of construction
No preemption, repeal, or narrow construction
Nothing in this Act shall be construed to preempt State law, or repeal Federal law, that is equally or more protective of free exercise of religious beliefs and moral convictions. Nothing in this Act shall be construed to narrow the meaning or application of any State or Federal law protecting free exercise of religious beliefs and moral convictions.
No prevention of providing benefits or services
Nothing in this Act shall be construed to prevent the Federal Government from providing, either directly or through a person not seeking protection under this Act, any benefit or service authorized under Federal law.
No affirmation or endorsement of views
Nothing in this Act shall be construed to affirm or otherwise endorse a person's belief, speech, or action about marriage.
No impact on definition
Nothing in this Act shall be construed to alter the definition of marriage for Federal or State purposes.
If any provision of this Act or any application of such provision to any person or circumstance is held to be unconstitutional, the remainder of this Act and the application of the provision to any other person or circumstance shall not be affected.
Federal benefit program
The term has the meaning given that term in section 552a of title 5, United States Code.
Federal; Federal Government
The terms and include—
any department, commission, board, or other agency of the Federal Government;
any officer, employee, or agent of the Federal Government; and
the District of Columbia and all Federal territories and possessions.
The term means a person as defined in section 1 of title 1, United States Code, except that such term shall not include—
publicly traded for-profit entities;
Federal employees acting within the scope of their employment;
Federal for-profit contractors acting within the scope of their contract; or
hospitals, clinics, hospices, nursing homes, or other medical or residential custodial facilities with respect to visitation, recognition of a designated representative for health care decisionmaking, or refusal to provide medical treatment necessary to cure an illness or injury.
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