The Republican Party is considering trying to pass the First Amendment Defense Act (FADA) once Trump takes office. This Act, if passed as worded, will have some interesting and unintended consequences for Catholics–who, with the Act’s obvious target of gay people, could become legitimate targets of discrimination.
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.”
In Catholic canon law consecrated virgins and religious women (i.e., members of Catholic religious communities) are considered to be legally married to Jesus. (See Canons 604 and 607 in The Code of Canon Law.) The Catholic Church thus does not believe that “marriage is or should be recognized as the union of one man and one woman” since it recognizes the polygamous union of Jesus with multiple consecrated virgins and religious women. Of course, since the law is written as a disjunct Catholic organizations who wish to discriminate against gay people (or single mothers) could always fall back on (2) “sexual relations are properly reserved to such a marriage”. They could argue that Jesus and his consecrated virgins and religious women don’t have the sort of icky sex that’s proper to those marriages that involve physical interactions. That sort of sex is reserved to the other sort of marriage.
So, Catholic organizations would get to discriminate against gay people and single mothers. But all is not rosy for conservative Catholics who might welcome this. This is because the FADA would prohibit the federal government from taking action against people or organizations that discriminated against Catholics. Imagine you’re a Protestant bakery (for example), and believe that marriage should just be between one man and one woman. Knowledgeable of Catholic canon law, you refuse to serve Catholics on the grounds that their religion allows polygamy. (Jesus with his harem of consecrated virgins and religious women.) Since your discrimination against Catholics is based on your religious belief that “marriage is or should be recognized as the union of one man and one woman” the FADA would prohibit the Federal government from taking action against you.
Of course, the persecution of Catholics in America is not new. So, maybe this will make the FADA even more appealing to some traditionalists. Just not traditional Catholics!
(With thanks to the law firm CLAMS: Canon Law Advocacy and Mediation Services, LLC for legal advice on canon law and its applicability to the FADA.)