The First Amendment Defense Act (“FADA”) first caught media attention in 2013. The enthusiasm of the legislation’s proponents, however, quickly fizzled following President Obama’s veto. Now, four years later, Representative Raul Labrador’s reintroduction of the bill, with passage made possible by the election of Donald Trump, thrust concerns over FADA’s constitutionality back into the national discussion.

FADA aims to protect the right of people and businesses to refuse service on the basis of the proprietor’s belief that either marriage should only be the union of a man and woman or that sexual relations are properly reserved to such a marriage. The legislation would forbid the federal government from taking “discriminatory” action against people and business for refusing to serve individuals on either of the two bases. The legislation primarily affects the “LGBT” community. Members of the LGBT community are voicing their grave concerns about the legislation.

The legislation, however, faces a legal hurdle from the very constitutional amendment the act seeks to protect. The First Amendment’s Establishment Clause prohibits Congress from making any law respecting an establishment of religion. Indeed, FADA would establish the right of individuals with one particular set of religious beliefs to discriminate against others, but exclude others from the right to discriminate on the basis of their own, different set of religious beliefs. Legal scholars point out that the law effectively favors one religion over another and that FADA would employ the First Amendment as a vehicle to accomplish the very legislative objective the First Amendment itself prohibits. FADA is not a new concept and is based upon similar, veritably denunciated state level legislation as seen, for example, in Indiana.

Another constitutional hurdle FADA may face is found in a pair of recent Supreme Court cases, which illustrate how civil liberties advocates (like the ACLU) might utilize the Fifth Amendment to attack FADA. In United States v. Windsor, the Supreme Court employed the Fifth Amendment’s equal protection clause to strike down the Defense of Marriage Act (“DOMA”) just four years ago, in 2013. DOMA and FADA share a few key characteristics, which are informative as to how the Supreme Court might rule should FADA come before the Court.

When the Windsor Court struck down DOMA the majority opinion held that DOMA sought to cause injury to a class of people the state government of New York sought to protect and, consequently, such a legislative objective violated the Equal Protection clause (of the Fifth Amendment). Subsequently, the Supreme Court found in Obergefell v. Hodges that the fundamental right to marry is guaranteed to gay and lesbian couples by the Due Process and Equal Protection clauses of the Constitution. The proponent of an argument couched in the Windsor and Obergefell precedent would then argue same-sex couples, along with their right to marry, are a class of protected persons – a class of persons to which FADA explicitly condones discrimination of.

The Fifth Circuit recently lifted an injunction on similar FADA like legislation passed in Mississippi. In that case the plaintiffs brought an action founded upon alleged violations of the Establishment Clause and Equal Protection Clause – making arguments similar to those discussed above. The Fifth Circuit provided a preview of one of the first issues a challenger to FADA would face: the requirement of standing. A panel of the Fifth Circuit Court of Appeals found the plaintiffs, a group of ministers, lacked standing. Potential plaintiffs should take note of the precedent established by the Fifth Circuit with respect to the standing requirements. Standing is a notoriously burdensome requirement in challenging federal legislation, and the Fifth Circuit’s rationale presents particularly unique issues with respect to standing for an action based on the Establishment Clause. The plaintiffs did appeal the panel’s decision to the full Fifth Circuit. Stay tuned for an update on how the Fifth Circuit deals with the standing issues on appeal.