A new US amendment could make it legal to discriminate against LGBTQ people

The First Amendment Defence Act will allow discrimination across the board, as long as they claim to be motivated by a firmly held religious beliefs

A new US amendment could make it legal to discriminate against LGBTQ people

Image: Evan Vucci AP/Press Association Images

US Senators say an amendment allowing the discrimination of LGBTQ people on religious grounds is likely to pass under President-elect Donald Trump.

Senator Ted Cruz told Buzzfeed News earlier this month that The First Amendment Defence Act (FADA) will go through the Republican-controlled House with Trump's backing.

FADA will prohibit the federal government from taking "discriminatory action" against any business or person that discriminates against LGBTQ people. Entities will be able to deny services to LGBT people based on two sets of beliefs: "marriage is or should be recognized as the union of one man and one woman", or "sexual relations are properly reserved to such a marriage."

In 2014, outgoing President Obama executed an order granting employment protection for gay and transgender employees who work for the federal government or for companies holding federal contracts. He told advocates at the signing ceremony he embraced the “irrefutable rightness of your cause.”

"America’s federal contracts should not subsidize discrimination against the American people," he added.

Currently, the FADA "prohibits the federal government from taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage."

The amendment was first introduced in June 2015. It is currently co-sponsored by 171 House Republicans and just one Democrat (Daniel Lipinski of Illinois.)

Trump's website states: "Religious liberty is enshrined in the First Amendment to the Constitution. It is our first liberty and provides the most important protection in that it protects our right of conscience. Activist judges and executive orders issued by Presidents who have no regard for the Constitution have put these protections in jeopardy.

"If I am elected president and Congress passes the First Amendment Defense Act, I will sign it to protect the deeply held religious beliefs of Catholics and the beliefs of Americans of all faiths. The Little Sisters of the Poor, or any religious order for that matter, will always have their religious liberty protected on my watch and will not have to face bullying from the government because of their religious beliefs."

Earlier this month, Senator Mike Lee's spokesperson Conn Carroll told Buzzfeed the election of Trump had cleared a path for the passage of FADA.

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

Republican Sen. Mike Lee, speaks with reporters after squaring off in a debate with Democratic challenger Misty Snow at Brigham Young University Wednesday, Oct. 12, 2016, in Provo, Utah. | Image: Rick Bowmer AP/Press Association Images

History repeating itself?

Trump's President-elect Mike Pence previously passed passed a "religious freedom" bill as governor of Indiana in March 2015, which was met with widespread protests and financial losses from businesses that pulled operations from the state. It ultimately required an amendment issued in April to protect LGBTQ people from the bill's discrimination.

Vice President-elect Mike Pence arrives to speak at a rally at the Orlando Amphitheater at the Central Florida Fairgrounds, Friday, Dec. 16, 2016, in Orlando, Fla. | Image: Evan Vucci AP/Press Association Images

This spring, Mississippi passed near-identical legislation in H.B. 1523, an extensive law written to protect people who believe any of the following: that marriage is between a man and a woman; that sex should only happen in the context of marriage; and that the words “male” and “female” refer to “an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.” It was quickly blocked by a judge

The legislation would allow religious organisations in the state the option to refuse to rent out their social halls for a same-sex wedding, for example, and that clergy can refuse to perform a same-sex marriage ceremony. These groups can also fire a single mother who gets pregnant, or, in the case of religious adoption agencies, decline to place a child with a same-sex couple. Doctors and psychologists can refuse to get involved with gender-reassignment procedures or take cases that would violate their religious beliefs. State employees can also refuse to sign same-sex-marriage licenses, and they can’t be fired for saying they believe homosexuality is wrong, for example.

North Carolina is also fighting the federal government on its 'bathroom bill', H.B. 2. 

The North Carolina General Assembly passed H.B.2 in March, during a specially convened one-day session. The law was a response to the city of Charlotte passing a local ordinance that required transgender bathroom accommodation and banned discrimination against LBGT people. H.B.2. bans local ordinances on both issues, and mandates that people in state facilities—including schools and universities—use bathrooms corresponding to the gender on their birth certificate, not the one with which they identify.

Legislators are meeting this week to repeal the law, after it did considerable harm to the state's economic prospects. The state missed out on new jobs as companies declined to expand in the state, while cancellations of concerts and conventions exacted a toll. The NBA moved its All-Star game to New Orleans, and in a huge symbolic blow to the college basketball-crazy state, the NCAA and ACC relocated events.

Republicans previously defended the bathroom provisions as providing privacy and safety by keeping men out of women's restrooms.

Opponents of House Bill 2 protest across the street from the North Carolina State Capitol in Raleigh, N.C., Monday, April 11, 2016. | Image: Gerry Broome AP/Press Association Images

Barber vs. Bryant

A lawsuit brought by Mississippi religious leaders alleges the state law actually violates religious freedom by determining that religious belief necessitates anti-LGBTQ discrimination.

The group of ordained ministers suing the state said in the lawsuit, Barber v. Bryant, that Mississippi violates its right to freedom of religion "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."

Barber v. Bryant is currently at the Fifth Circuit Court of Appeals, after a federal trial court ruled HB 1523 violates the federal Equal Protection and Establishment Clauses.

Trump's own cases

Former Trump employee Eleazar Andres is suing Trump National Golf Club under New Jersey’s non-discrimination law, alleging that he experienced sexual orientation harassment, a hostile work environment based on sexual orientation, discrimination based on sexual orientation, and unlawful retaliation. He is also suing for assault and battery.

He argues that the club is liable “for the acts constituting hostile work environment” and “sexual orientation harassment” because it “failed to properly address” his complaints and “failed to implement any preventative or remedial measures to protect against unlawful harassment” and discrimination. Andres then lists a variety of training programs and policies recognized by the courts as effective tools for combatting discrimination.

Trump’s attorneys deny almost all of the claims, but do admit that Andres’ co-workers threw rocks at him.

The 115th States Congress is the next meeting of the legislative branch of the United States federal government, and is scheduled to meet in Washington, D.C. from January 3, 2017 to January 3, 2019.