Monday, December 21, 2015

The First Amendment Defense Act: State Action, Equal Protection, Freedom of Expression, and Establishment Clause Concerns

In the preceding post discussing the First Amendment Defense Act I analyzed the vague and overbroad language of the Act and how the Act fundamentally misunderstands the nature of "liberty." This post discusses how the proposed law fares under the State Action Doctrine, Equal Protection, Freedom of Expression, and the Establishment Clause.

State Action Doctrine

The Constitution does not prohibit private acts of discrimination. If a person or a business wishes to discriminate against same-sex couples or any other individuals, that is not a violation of the Constitution. The Constitution prohibits "state action" (laws or official policies adopted or enforced by the government), not private action.

Furthermore, the Constitution does not require the government to prohibit or prevent private acts of discrimination. If the government fails to enact laws prohibiting private acts of discrimination, that is "state inaction," not state action. Under the Constitution the government may, if it chooses, simply allow people to discriminate or commit all kinds of atrocities against each other.

What the government may not do is to encourage private acts of discrimination. Reitman v. Mulkey (1967) (invalidating a California constitutional amendment prohibiting the passage of fair housing laws). When the government "encourages" or "substantially involves itself" in private acts of discrimination, it is complicit in such discrimination. State inaction becomes "state action," and the requirements of the Constitution come into play.

Equal Protection

The "First Amendment Defense Act," as described in the previous post, seeks to protect individuals, corporations, and all other organizations in their discriminatory conduct against same sex couples and all unmarried persons who have sex. If the law simply left individuals alone to act as they choose, it would be perfectly constitutional. However, Section 4 of this Act establishes a number of legal protections for individuals and organizations to engage in private acts of discrimination. Section 4(a) expressly creates a cause of action for persons who persons who wish to discriminate against same-sex couples and would grant them "compensatory damages, injunctive relief, declaratory relief, or any other appropriate relief" for any "actual or threatened" interference with their right to discriminate. Section 4(b) dispenses with the near-universal requirement of exhaustion of administrative remedies, stating:
Notwithstanding any other provision of law, and action under this section may be commenced, and relief may be granted, in a United States district court without regard to whether the person commencing the action has sought or exhausted administrative remedies.
Section 4(c) of the Act awards discriminating individuals and organizations the right to attorney fees if the government should in any way take "discriminatory action" against them on account of their discriminatory conduct towards others.

Finally, Section 4(d) of the Act authorizes the government itself to intervene in these cases on behalf of individuals who wish to discriminate against same-sex couples.

The Act does not simply acquiesce in private acts of discrimination -- it fosters and encourages private acts of discrimination. This crosses the line from state inaction to state action, and violates Equal Protection.

Freedom of Expression

To the extent that the law seeks to protect freedom of expression of persons opposed to same-sex marriage -- by insulating schoolyard bullying or workplace harassment, for instance -- it violates a basic tenet of First Amendment Law. The Supreme Court has unequivocally prohibited the government from enacting laws that are "viewpoint based." Laws inhibiting expression may be "content based," if the need is great. For example, the law may prohibit threats, incitement to violence, fraud, perjury, and false advertising. But laws affecting private acts of expression may not be "viewpoint based." For example, the law may not prohibit people from burning the flag of the United States in protest, nor may the law require people to salute the flag. As Justice Robert Jackson stated in the flag salute case, West Virginia Board of Education v. Barnette (1943):
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
The First Amendment Defense Act violates this fundamental rule against viewpoint-based laws. Section 3(a) of the Act protects one viewpoint, and one viewpoint only, from being "discriminated against" -- the belief that "marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage." It does not protect the contrary view. It does not protect other religious or moral beliefs. Only opposition to same-sex marriage warrants protection within its broad unmarked boundaries. This is viewpoint discrimination, and it is unconstitutional per se.

Establishment Clause

For generations it has been a fundamental principal of First Amendment law that the government must remain neutral with respect to religion. The government may neither "advance" or "promote" religion, nor may it "disparage" or "discourage" it. The Supreme Court has repeated this maxim in case after case. In the most recent Establishment Clause case, Town of Greece v. Galloway (2014) the Court upheld the practice of a Town Board in starting its meetings with a prayer. But even in Galloway the Court drew the line against government action that favored one religion over another. Speaking for the majority of the Court, Justice Kennedy stated:
Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not "exploited to proselytize or advance any one, or to disparage any other, faith or belief." (quoting Marsh v. Chambers (1983)).
Is the Supreme Court inclined to validate a law that fosters and protects one specific religious belief above all others? Not unless the Court is willing to abandon its fundamental commitment to government neutrality on matters of religion.


The First Amendment Defense Act is unconstitutional. It constitutes state action, not state inaction. It encourages private acts of discrimination against same-sex couples and unmarried persons in violation of Equal Protection. It protects the expression of one particular viewpoint over other viewpoints in violation of Freedom of Expression. And it advances one religion and disparages others in violation of the Establishment Clause.

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