On July 12th, the Public Rights/Private Conscience Project’s Faculty Director Katherine Franke spent a few hours testifying before the House Oversight and Government Reform Committee at a hearing on the First Amendment Defense Act (FADA). This Act would prevent the government from penalizing, fining, or denying tax subsidies, grants, or benefits to individuals or groups 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.” In other words, the Act gives religious objectors blanket immunity to discriminate against others in the name of their religious beliefs about sex and marriage.
Unsurprisingly, the harms that FADA would impose on same-sex couples and families were a main focus of the hearing. Professor Franke’s testimony was particularly important, however, because she additionally discussed how the bill would interfere with civil rights protections and impact those who have had sex outside of marriage, including pregnant women and single parents.
The impact that FADA has on those who have had “extramarital relations” is oftentimes left out of the conversation when FADA, which is mostly described as an anti-LGBTQ bill, is discussed in the media. This could be because of the vagueness of the term “extramarital relations” or because it is hard to determine who has had sex outside of marriage and who has not, making the bill’s impact on those involved in “extramarital relations” less clear than its impact on same-sex couples. However, one surefire way to identify someone who has had such a relationship is the presence of a child outside of marriage. This makes the Black community an easy target for religious objectors who find “extramarital relations” morally wrong and objectionable — in 2012, 36% of Blacks over the age of 25 had never married, compared with 16% of whites,  and 70% of Black children are born to non-married parents.
FADA could harm people in non-marital relationships, or who have children while unmarried, by giving religious objectors who want to discriminate the green light to bypass a wide range of laws enforced through fines and litigation by government agencies such as the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), and the Department of Housing and Urban Development (HUD). For example, FADA could prevent the Secretary of Housing and Urban Development from enforcing the Fair Housing Act against a landlord that advertises it will not rent to unmarried parents; prevent the federal government from denying Title X funding to a health clinic that provides family planning care only to married patients; and prevent the federal government from denying a grant to a religiously affiliated shelter that refused to house single mothers. Because of the many health and economic burdens and discriminatory practices that Blacks have faced in this country, it seems unjust that religious objectors would be able to compound these harms and discriminate against Blacks and other people of color in the ways described above.
FADA’s language on “extramarital relations” could also negatively impact domestic partnership laws, such as those in the District of Columbia, which create important property and support rights for individuals who register as domestic partners. These rights are similar to those that married couples have, including inheritance rights, alimony, and equitable division of partnership rights. Under FADA, individuals and groups could discriminate against a same- or opposite-sex couple in a domestic partnership if motivated by religion. For example, FADA could prevent the D.C. government from taking action against a retirement plan that refuses to provide annuity benefits to someone in a domestic partnership, a benefit that D.C. grants to those who are unwed.
FADA gives religious objectors blanket immunity to discriminate against those in extramarital relationships or married to someone of the same sex. If passed, the Act would not only harm those in the LGBTQ community; as a population that is less likely to be married and more likely to have a child while unmarried, FADA’s protections for those opposed to “extramarital relations” would impose a particular harm on Black communities.
 Wendy Wang and Kim Parker, Record Share of Americans Have Never Married, Pew Research Center, (September 24, 2014) http://www.pewsocialtrends.org/2014/09/24/record-share-of-americans-have-never-married/
 Brady E. Hamilton et al., Center for Disease Control and Prevention, National Vital Statistics Reports 41 Volume 64, Number 12 (2015) http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_12.pdf