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FIRST AMENDMENT DEFENSE ACT

POST DELIBERATION REPORT


Patrick Anglin, Afrah Alrusheidi, Harini Babu, Hannah Canil, Justina Luongo,
Brandon Martenas, Grace McStravock, Brandon Tubby, Giovanni Vallejo, Brianna
Walker | CAS 138T | 20 March 2017

Introduction
On Sunday February 26th, a deliberation event titled: Discrimi(nation):
Discussing the Implications of the First Amendment Defense Act (FADA) was held by
our group of 10 Penn State Rhetoric and Civic Life students. Within this event, we were
to facilitate a discussion which would provide insight into the differing opinions with
regards to the proposed FADA bill. This piece of legislation grants businesses protection
from governmental discriminatory actions that might come as a result of their decisions
to practice their First Amendment rights. The deliberation was focused on using three
approaches to break down the implications of such a bill and to decide whether the bill
ought to be proposed again after being shot down in Congress. An open, cozy atmosphere
was created in a local church-sponsored study room, The Common Place, with the intent
to allow students to discuss in a free manner their true opinions and beliefs in contrast to
any that may oppose. Our teams goal was to gather all of the input from the discussion
and use it to develop an alternate proposition to the bill.
The focus of the deliberation began with an example of how discrimination could
occur within society.
Suppose you walk into a restaurant and sit down with your family to eat a
meal. You see the manager in the back the back staring at you and then
proceeding to your table. A person you have never met has just told you to
leave her restaurant because your type is not welcome here.
Questions regarding this situation were inevitably raised throughout the deliberations
with reference to our three approaches to this topic. Initially, these questions appeared in
the form of general questions such as Is that fair? Is that community? Is that right?
As students at the turn of a new era focused on inclusion, we understand the value of
having legislation that reflects those values. It is important to understand that the students
of our university and of our generation are going to be the next leaders of the nation, and
we are taking our first steps now. With a proposition of a bill, such as the FADA, we fear
our society is resorting back to an earlier time that was saturated by fear and disregard for
an alternate opinion.

At Penn State University, diversity and inclusion are a huge draw for many
students to attend. The proposed FADA had many students outraged at the potential

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added discrimination against people who identify with certain sexualities, races, and
religions. Under the current administration, we feel that it is possible, and even likely,
that a bill such as the FADA will be resurrected and passed by Congress. The information
gathered and given within this report show that the next generation does not comply with
the old world ideas. We as a university are looking to the future, not to rehash what the
past has brought. History should not be repeating itself, but it is worrisome to the students
of Pennsylvania State University, because the proposition of a bill such as the FADA and
its potential passing would open the door to further bills that would degrade the progress
this nation has made. The students here at the Pennsylvania State University are worried
about what we as a nation are becoming, and our deliberation group has gathered the
information presented in the following pages.

Given vs. Lived Identity


Over the course of our deliberation regarding the First Amendment Defense Act,
we uncovered and dissected a prominent theme in the aforementioned legislation. We
observed that the views represented by members of the discussion towards the FADA

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corresponded with whether one believed that sexual orientation was a given or lived
identity.
As we found ourselves continually referring to identity, we established the term
given identity to represent an identity that is inherited and inseparable from an
individual. Race came across as a consensually agreed upon form a given identity. Next,
the term lived identity was an identity that one has the choice of which to identify.
Lived identities that we aggregated were mostly lifestyle-based, political, religious, and
ideological identities.
With the creation of these two terms came the debate: under which of our two
established categories should homosexuality fit? There were those who felt sexual
orientation is just as much of an inherited identity as race. There were also those who felt
sexual orientation was just as much of a choice as drinking. This debate on the national
level is similar as a 2014 Gallup Poll found that 42% of respondents believed that
homosexuality was not a choice, versus 37% who believed that it was.
The split on the categorization of homosexuality at first correlated with peoples
opinions regarding the FADA. Advocates of the FADA originally believed that there were
grounds to discriminate against a lived identity based off a religious belief. Critics were
originally exclusively tied to the belief that sexual orientation should be handled in the
same way as race and that racial discrimination has no place in American society.
Over the course of the discussion, both sides were able to agree on and
continuously emphasize one point: discriminating selectively should be considered both
dangerous and unconstitutional. By legally allowing acts of discrimination in accordance
with religious beliefs, it would open the floodgates and bring about other acts. This would
include discrimination based off of race, ethnicity, or other factors, whether or not they
are considered part of the given identity or the lived identity. The prevention of those
exact acts are a major part of American history, and a repetition of past mistakes would
upend the progress of American society.
The idea that American public policy should sponsor laws and regulations that
allow intolerance is inexcusable. America was founded on the ideas of equality and
acceptance. An overwhelming majority of participants in the deliberation supported the

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statement that enacting a law in direct contradiction to those concepts would be a serious
step in the wrong direction for our country.

First Amendment Rights of Businesses


A prime goal of our deliberation was to differentiate between the basic rights of
an individual and those of a business. The hosts of the deliberation helped participants to
contextualize the discussion through examples of businesses which openly are affiliated
with a religion, and the ways in which they act on their beliefs. Mild examples presented
were Chick-fil-A and Forever21, who print Bible verses on cups and shopping bags
respectively (Nisen). The reactions of participants to these scenarios were fairly neutral,

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as both those who aligned with the more liberal and more conservative elements felt that
these were appropriate expressions of a belief. A religious message that is not a direct
attack on those who do not subscribe to the same set of beliefs, it was established, had
very little potential to do harm and certainly had potential to spread something good.
Meanwhile, the reactions to examples such as the 2014 case in which an Oregon
bakery, Sweet Cakes by Melissa, refused to bake a cake for a gay wedding (Richardson),
were much more impassioned. On one hand, a portion of the deliberators initially saw the
bakers decision as common sense - of course it ought to be her right to refuse to pour her
time and talent into a wedding cake for a union of two individuals she believed
fundamentally was wrong. The other portion of the group reacted staunchly that the
bakery was practicing immoral discrimination. Yet, neither side was unwavering in their
views; when the facilitators of the deliberation proposed a swap of figures in the given
scenario (a cake for a neo-Nazi group, rather than for a homosexual couple), both sides
responded thoughtfully. Both sides could then clearly see that the physical and creative
labor that would go into the baking of such a cake might be painful with the knowledge
that the end result would go to someone whose values differ from those of the baker. Yet,
a pertinent question was brought forth - would a swastika be on the cake? That is, would
there be a distinctly offensive, emotionally-charged image, which the baker would be
forced to create?
Suddenly, this became the differentiating argument. Referring back to the Chick-
fil-A and Forever21 scenario, it was established that as long as the cake request does not
pose a direct attack on those who do not subscribe to the same set of beliefs, a business
owner should not be allowed to deny service. For example, just as a bakery might refuse
to bake create a swastika as a cake-topper due to the overt offensiveness of this image, a
bakery might also refuse to provide same-sex wedding cake toppers. In this way, the
process of creation might be exactly the same as for any other basic wedding cake the
bakery might make. The consensus of the group was simply that a business owner, when
opening an establishment, enters into a contract with society that they will provide a good
or service without discrimination. All that they might limit are the goods and services
they offer on a grand scale; they may not create limit offerings on an individual customer

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basis. From your constituents analysis, the First Amendment Defense Act ought to be
revised to definitively prohibit discrimination on a case-by-case basis.

Separation of Church and State, Role of the


Government
As the participants of the deliberation got further into discussion, our group
brought up the role of the government. Our group wanted to delve deeper in what the
general public thought should be the role of the government concerning discrimination
and society. Specifically, when these matters intervene with the policy of separation of
church and state. The government has a general policy of keeping church and state
separate, however enacting the FADA would change this policy. With the approval of the

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FADA, the public would have the right to act discriminatorily if the act was in
accordance to their religion. However, with separation of church and state, it would be
difficult for the government to pass a ruling if cases with the FADA were to ever come up
in court. The government would then have to make a stance on whether they will be
upholding the FADA. If they were to do so, then this would bring into question, where
the line would be drawn to protect other citizens that might be hurt because of the FADA.
With a law like the FADA, there are many different societal implications that can
trickle down into the public. For example, enacting FADA might cause for there to be a
greater amount of discrimination. This is because people with strong religious views
might feel more comfortable with expressing their views in public under the protection of
the FADA. This would cause for an increase in the number of acts of discrimination.
While some may say it is the governments responsibility to prevent discrimination, the
FADA would certainly be intervening with that responsibility. This would be because of
separation of church and state; it would interfere with the governments ability to act
against the FADA.
However, it can be agreed that the United States government can be seen as a
leader, both in the country and on an international level. When discussing this
controversial topic, it is important to keep in mind some key questions that our group
used in deliberation. Should the government be responsible for enacting diversity
initiatives eg. legalizing same-sex marriage, even if it is interfering with church and
state? How should the government play into this role when it promotes a secular view?
How about when the government is interacting with the views of a non-secular
international community?
Furthering our discussions, it became clear that while the FADA focuses on
mainly protecting the right to expression of those religious views, discrimination goes
beyond this. Discrimination can take shape in any form and sometimes it can be directed
unintentionally, however the harm is still apparent. It became apparent over the course of
our deliberation that a majority of students believed that the government should not only
have a role but should also lead in eliminating discrimination.
While our discussions were not able to create a clear direction as to what the
government should do to eliminate discrimination, it is of top priority. The nation is

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evolving as millennials are getting older, the issues are also changing. While issues on the
economy and security may never change, new issues are arising as society becomes more
aware. Along with this newfound awareness also comes desperately needed protections
for citizen. It has been agreed that it is the governments job to protect their citizens and
enacting new protections would do just this.

Works Cited
Coopersmith, Wesley. "First Amendment Defense Act (FADA) FAQs."
Heritage Action for America. Heritage Action for America, 22 Apr. 2016.
Web. 17 Feb. 2017.

Liebelson, Dana, and Amanda Terkel. "Supreme Court Legalizes Gay Marriage
Nationwide."The Huffington Post. TheHuffingtonPost.com, 26 June
2015. Web. 17 Feb. 2017.

Nisen, Max. "Big U.S. Companies You Might Not Know Are Religious." Yahoo!
News.

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Yahoo!, 17 June 2013. Web. 15 Feb. 2017.

Richardson, Bradford. "Sweet Cakes by Melissa Files Appeal in Oregon Gay


Wedding Cake
Case." The Washington Times. The Washington Times, 26 Apr. 2016.
Web. 15 Feb. 2017.

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