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Creating a License to Discriminate: First Amendment Defense Act

The Bottom Line

The freedom of religion is one of our nation’s most fundamental values, which is why it is already protected in the First Amendment of the U.S. Constitution. Americans also believe in equal treatment, and while religious freedom is important, that freedom doesn’t give anyone the right to harm, discriminate against, or impose their beliefs on others. The so-called "First Amendment Defense Act" or FADA, introduced in the U.S. Senate in March 2018, would grant certain companies and nonprofit organizations a license to discriminate, as long as that discrimination was based on the beliefs that marriage should be between a man and a woman and sex should be reserved for such marriages. 

To explain why FADA is so devastating and should not be re-introduced, Creating a License to Discriminate: First Amendment Defense Act provides an analysis of the 2018 Senate draft of FADA and what it could mean for 10 million lesbian, gay, bisexual and transgender (LGBT) people, along with millions of others including women, single parents, unmarried couples, and children raised by LGBT parents and unmarried parents. The brief underscores how vigilant we must be to ensure that a license to discriminate is not written into our laws.

Recommended citation: 
Movement Advancement Project and Center for American Progress. March 2017. Creating a License to Discriminate: First Amendment Defense Act. (date of access).

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Sexual Orientation Policy Tally

The term “sexual orientation” is loosely defined as a person’s pattern of romantic or sexual attraction to people of the opposite sex or gender, the same sex or gender, or more than one sex or gender. Laws that explicitly mention sexual orientation primarily protect or harm lesbian, gay, and bisexual people. That said, transgender people who are lesbian, gay or bisexual can be affected by laws that explicitly mention sexual orientation.

Gender Identity Policy Tally

“Gender identity” is a person’s deeply-felt inner sense of being male, female, or something else or in-between. “Gender expression” refers to a person’s characteristics and behaviors such as appearance, dress, mannerisms and speech patterns that can be described as masculine, feminine, or something else. Gender identity and expression are independent of sexual orientation, and transgender people may identify as heterosexual, lesbian, gay or bisexual. Laws that explicitly mention “gender identity” or “gender identity and expression” primarily protect or harm transgender people. These laws also can apply to people who are not transgender, but whose sense of gender or manner of dress does not adhere to gender stereotypes.

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