Political Insider

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What Greg Kirk's FADA bill does and doesn't do

State Sen. Greg Kirk, R-Americus, just finished his press conference on his proposed First Amendment Defense Act, intended to offer protection to individuals and institutions that hold to marriage as an institution of one man and one woman.

We’re a little sparse on details, because Kirk doesn’t intend to drop the bill until late today. Kristina Torres has much of what detail we know here. A few additional points:

-- Kirk described his bill as “live and let live” legislation that doesn’t challenge the U.S. Supreme Court decision sanctioning same-sex marriage. “Currently, that’s the law of the land,” he said.

-- The only text we have access to is what Kirk read aloud – specifically, a passage making clear that this isn’t a Kim Davis bill, intended to protect court clerks who refuse to offer same-sex marriage licenses:

“Nothing in this chapter shall be applied to afford any protection or relief to a public officer or employee who fails or refuses to perform his or her official duties.”

-- Likewise, Kirk said his legislation offered no protection for private, for-profit businesses who do business with the public, but refuse service to gay couples.

-- But Kirk said his legislation would negate city or county ordinances which might prohibit doing business with vendors/entities that discriminates – in hiring, say -- on the basis of their religious beliefs. “The bill will not allow the government to discriminate against that business because of their belief in the traditional definition of marriage,” Kirk said.

The press conference was jam-packed with representatives on both sides of the issue (though business-types were missing). I don’t know who asked it, but there was one very sharp legal question from the back of the room. The interrogator noted that Kirk’s bill established a protected class – people who believe in marriage as being between one man and one woman, and that sex should occur solely within this sphere. Then he said this:

“It does not prohibit government discrimination against people who have other views, as to marriage or when sex is appropriate. Would that not make your bill an ‘inappropriate viewpoint’ discrimination? Because it protects one kind of view about sex and marriage, but not other types of view. The government is free to discriminate against other viewpoints.”

Kirk had no answer. But pay attention to this argument. Because the next big legal fight over marriage may not come from the left, but from the right. While we were waiting for the press conference to begin, the Associated Press pushed out this article:

SALT LAKE CITY — Lawyers for a family made famous by the TV show "Sister Wives" are set to ask a federal appeals court on Thursday to uphold a ruling that decriminalized polygamy in Utah.

The case is scheduled to come before the 10th U.S. Circuit Court of Appeals in Denver after the Utah attorney general appealed a ruling that struck down key parts of the state law banning polygamy.

State attorneys say they don't plan to charge Kody Brown and his four wives if the law stands but that it should stay on the books because it helps curb abuses such as underage marriage.

The Brown family says their TLC reality show "Sister Wives" reveals that polygamous unions can be as healthy as monogamous ones. They argue that making marriages like theirs a crime violates the right to privacy and freedom of religion.

The family won a legal victory in 2013, when U.S. District Judge Clark Waddoups found that a key part of Utah's bigamy law forbidding cohabitation violated the Browns' right to religious freedom and struck it down. Bigamy, or holding multiple marriage licenses, is still illegal.

It was a landmark decision that removed the threat of arrest for plural families, but Utah said it could weaken its ability to go after polygamists such as imprisoned leader Warren Jeffs, who was convicted of assaulting underage girls he considered wives.

Prosecutors pointed to Jeffs as evidence that the practice can be associated with crimes such as sexual assault, statutory rape and exploitation of government benefits. Utah has a longstanding policy against prosecuting otherwise law-abiding adults in polygamous marriages, but prosecutors say outlawing the practice helps investigators gather evidence and strengthens cases against other abusers.

The Browns counter that other laws against those crimes are on the books and banning the practice can sow distrust of authority.

Their attorney, Jonathan Turley, also has pointed to the U.S. Supreme Court ruling legalizing same-sex marriage, saying it shows laws restricting consensual adult relationships are outdated even if certain unions are unpopular.

There are about 30,000 polygamists in Utah, according to court documents. They believe polygamy brings exaltation in heaven — a legacy of the early Mormon church. The mainstream Church of Jesus Christ of Latter-day Saints abandoned the practice in 1890 and strictly prohibits it today.

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About the Author

Jim Galloway is a three-decade veteran of The Atlanta Journal-Constitution who writes the Political Insider blog and column.