Former congressman from Massachusetts Barney Frank (D), shown in 2014, testified before the House Oversight Committee Tuesday. (Win McNamee/Getty Images)
Columnist

With a Supreme Court ruling last year, Republicans and social conservatives lost their battle against same-sex marriage. But that doesn’t mean they are stopping their fight.

Like their use of restrictive legislation to undermine the long-established right to abortion, they are looking for ways to weaken the reach of the court’s decision. Maybe there’s something to be said for tenacity. But that’s taking them, again, to the wrong side of history.

The current vehicle for opposition to the law of the land is the First Amendment Defense Act — a nobler title is hard to find.

Sen. Mike Lee (R-Utah), sponsor of the legislation, told a House hearing Tuesday, “The bill reaffirms the letter and spirit of the First Amendment, by stating unequivocally that the federal government may not revoke or deny a federal tax exemption, grant, contract, accreditation, license or certification to an individual or institution based on a religious belief about marriage.”

But at question is offensive action, not a belief. Just as opposition to same-sex marriage is protected by the bill, so is the belief “that sexual relations are properly reserved” to marriage between one man and one woman.

The effect of the legislation, cloaked in the rhetoric of freedom of speech and religion, could be widespread, according to more than 3,000 religious leaders who signed a letter against the bill and the Democrats who oppose it.

Katherine Franke, a Columbia Law School professor, provided a list of actions that federal officials would not be permitted to stop if the legislation becomes law. Among other things, the measure would prevent federal authorities from “enforcing the Fair Housing Act against a landlord that advertises that it will not rent to unmarried parents,” Franke said. Federal government officials also would not be able to move against health-care providers who “denied coverage for mandated preventative services — such as counseling for sexually transmitted infections, contraception, or domestic violence screening and counseling — to employees who are married to a same-sex partner or who have extramarital relations or sex.”

It’s a pretty good bet that supporters of the bill are not married to a person of the same sex, but how many of them have had no sex outside marriage? I’d like to see them answer that under oath.

Returning to Capitol Hill was Barney Frank, the former Democratic congressman from Massachusetts whose famous rapier wit was on display. He focused much of his attention on the possibility that a builder could obtain taxpayer money for low-income housing “then use it to construct rental units which people like me would be prevented from inhabiting,” said Frank, who is married to a man. “How in the world does requiring that developer to rent to same-sex couples in any way impinge on his religious freedom?”

Anticipating Frank’s line of argument, Lee’s opening statement said, “This bill does not take anything away from any individual or group, because it does not modify any of our existing civil rights protections.”

Not only do opponents object to the legislation, they also balked at the hearing’s being held one month to the day after the massacre of 49 people at a gay club in Orlando.

“As I sit here now, it is difficult to imagine a more inappropriate day to hold this hearing,” said Rep. Elijah E. Cummings (Md.), the top Democrat on the Committee on Oversight and Government Reform.  “Even if you truly believe that being gay is morally wrong, or that people should be allowed to discriminate against gay people, why in the world would you choose today of all days to hold a hearing on this discriminatory legislation?”

Of course, no proponent said they think being gay is morally wrong even if they do think it. They do think they are the ones being discriminated against.

Kelvin J. Cochran was the star witness on that point, though his story was not on point.

He was fired as Atlanta’s fire chief last year after he wrote a book that said uncleanness is “whatever is opposite of purity; including sodomy, homosexuality, lesbianism, pederasty, bestiality, and all other forms of sexual perversion,” according to the Atlanta Journal-Constitution. The book described gay sex and “sex outside of marriage” as “vile, vulgar.”

Republicans latched on to his testimony as someone who was fired because of his views, repeatedly having him go over key points. But his case is irrelevant to the First Amendment Defense Act. It would not cover him, as Democrats noted.

“Mr. Cochran,” said Rep. Bonnie Watson Coleman (D-N.J.), “I don’t understand why you are here.”

Read more:

[Federal employees were key to gay marriage court victories]

[DOMA decision could expand rights for gay feds, but with questions]

[Same-sex benefits advance, quietly]