Employment Non-Discrimination Act of 2007

I thank my distinguished friend from Washington.

Rather than comment generally on the bill here, I am going to focus on the rule. I will talk later on the bill itself.

As a senior member of the Education Committee, we went through this debate in committee, and I find it reprehensible that the process we have been following increasingly in this House is to shut off debate, that ironically in a bill that is supposedly expanding rights, we have another narrowly drawn rule that deprived me of offering several amendments that I offered in committee, has a gerrymandered rule for another amendment that is unique in history, has several others put in in the Rules Committee that are very unclear.

Let me go through a number of these different amendments. I offered an amendment in committee that was unanimously opposed by the Democrats in committee to eliminate the word ``perceived.'' This is a legal nightmare. There is no other law. There is talk about how ADA has some things vaguely familiar. But it does not say ``perceived.'' How in the world are you going to define ``perceived''? As anybody who has any friends who have worked with and been acquainted with people who have a homosexual lifestyle, there are all types. This is open-ended. There is no list here of what is perceived to be homosexual. How is an employer supposed to figure out whether it is perceived? Does that mean if he is a Christian and has made statements, somebody can file a suit because they perceived they were discriminated, not based on any kind of actions that occurred but something that was perceived? This is a legal nightmare and a precedent that is absolutely terrible, and we can't even vote. We can't even have a vote to strike the word ``perceived'' and have a full debate on the word ``perceived.'' What kind of an open process is that in the House?

I also had an amendment that would have provided some protection for Christians who have strong views in the workplace and will insert into the Record at this point a number of cases. An AT&T employee was fired because he wouldn't sign a statement that contradicted his religious beliefs on accepting homosexual behavior. A man was fired at Red Cross for not participating in Gay and Lesbian Pride Month and forcing him to observe that. Others have been fired for other reasons.

The question is not whether you can harass somebody in the workplace. That is already illegal. If you mock somebody, that is already illegal. If you commit a hate crime, that is already illegal. The question is, can you as a Christian express your views and not be persecuted? That, yes, in a sense it is at least a plurality of Americans profess Christianity, a smaller percent conservative Christianity, but we are moving so far as to restrict the rights in the workplace of Christians' even ability to hold or say anything about their views. People can't even have Bible studies in some places it has been ruled because that would be offensive to homosexuals in the workplace based on this law in some cities and have been upheld in the court.

Now, moving past the two amendments that were unanimously defeated in committee and then we weren't allowed to debate as a whole House, we have an amendment that was added in response to another amendment from Pete Hoekstra in committee that would have exempted Christian colleges. It was unanimously defeated by the Democrats in committee. Then suddenly in the Rules Committee we have it added with a religious exemption. The problem with the religious exemption, and here I would like to put into the Record a number of cases that show the problem with this. Loyola University was deprived of a religious exemption because even though it was founded by Jesuits, its charter requires its president to be a Jesuit and more than one-third of their trustees, they were denied because they didn't meet one of those criteria. A Friends School, a Quaker school, was denied a religious exemption because it had to have multiple proof that everybody there was Quaker and was following every rule. A private religious school was denied for similar type things. A business that wanted to run as a religious world view was clearly denied the religious exemption. An orphanage by the United Methodist Church was denied the ability because it had gone secular. They wanted to come back and be a Methodist church again and they were denied, and these were all court decisions, because they were no longer purely Methodists and they didn't have a right to go back and be Methodist. This is in addition to the 2,500 Christian bookstores in America. Only 14 percent are run by a church. Eighty-six percent are either for-profit or not primarily religious organizations.

Under this bill, they will be forced to hire homosexuals regardless of the personal views of Christian bookstores. This is going to happen in various independent organizations that are quasi-part of the church. Sometimes the church will operate a for-profit entity, that runs as a for-profit entity, that would not be predominantly for a religious purpose, but the proceeds go to the church, therefore, they will implement their church beliefs in it, even though it is a for-profit entity. None of that is exempted under this. We didn't even get a chance to debate this amendment. It just came in in the rule.

Now, we move to another amendment that suddenly appeared, or I guess we will be debating here on marriage. Somehow in response to debate in committee, they are saying that this won't affect the Defense of Marriage Act. This is another lawsuit amendment because that is directly contrary to the fundamental part of the bill. My amendment tries to address part of this, but quite frankly, it is a legal quagmire.

Then we come to amendments that are allowed. We have had some debate on this gender equity for transgender and transvestite. Now, the challenge here is not whether you favor it or are against it. I heard my friend from New York say he was going to vote for it. He can't vote for it. We are not allowed to vote for it. We have been banned from having a debate. What happened to the day when we have a debate, you win or lose? To come in unprecedented, I have never heard, as a staffer or a Member, a rule coming in prohibiting in the rule a vote. This is an in-your-face tactic as part of this bill to not let us debate the religious underpinnings and the religious stuff, not debate ``perceived,'' not debate protections for people who are individuals, not have a vote on transgender, and it's 5 minutes on each side to even debate it.

This is an abominable rule. It is a precedent-setting, terrible, terrible rule. I urge people to support my colleague Mr. Hastings' motion on the previous question and to vote against that so we can have some amendments to this rule and then vote against this abominable rule because it sets precedents we will regret for a long, long time no matter which party is in the majority.

Examples of Discrimination Against Religious Employees

Christian employees who read Bibles during ``diversity

training'' reprimanded and spend four years in lawsuits to

obtain reversal. The ACLJ filed suit in April 1998 against

the Minnesota Department of Corrections on behalf of Thomas

Altman and Ken Yackly to force their employer to rescind the

reprimands they received in 1997 after they silently read

their Bibles at a state-mandated training session called

``Gays and Lesbians in the Workplace.'' The employees

contended that the training session was little more than a

state-sponsored indoctrination aimed at changing their

religious beliefs about homosexuality. Four years later, and

several appeals later, the employees were finally vindicated.

AT&T employee in Denver fired for refusing to sign company-

required pledge to recognize, respect and value sexual

orientation

differences within the company. In January 2001, an employee

of AT&T was required to sign a new AT&T Broadband Employee

Handbook with policies that conflicted with his religious

beliefs by condoning the homosexual lifestyle. After

notifying his supervisor that based on his religious belief

he could not sign the certificate of understanding, he was

fired.

Christian firefighter suspended for handing out tract

entitled ``The truth about homosexuality.'' Madison, Wis.,

firefighter Ron Greer nearly lost his job for giving his

colleagues a tract entitled, ``The truth about

homosexuality.'' He was suspended and ordered to attend

diversity training for violating the city's anti-

discrimination code.

Hospice worker fired by gay supervisor for expressing

Christian beliefs about homosexuality. Debra Kelly, a former

hospice worker in Philadelphia, was fired for expressing her

Christian beliefs about homosexuality. Her supervisor, a

supporter of ACT-UP, a militant homosexual group, said Kelly

was intolerant and unsuited for her position.

At Hewlett Packard's plant in Boise, Idaho, an employee

with a 21-year record of meeting or exceeding expectations

was fired for refusing to remove Bible verses about

homosexuality from his cubicle. The employee allegedly posted

the Bible verses in response to a poster near his cubicle

that he perceived to be promoting GLBT relationships. HP

openly admitted that its reasoning for firing the employee

was ``his overt opposition to HP's Diversity Advertising

Campaign.''

Man fired by American Red Cross for not celebrating

homosexuality Michael Hartman was employed by the Red Cross

in San Diego. The company sent a mass e-mail to all employees

in 2005 promoting ``Gay and Lesbian Pride Month,'' urging

them to ``observe'' the celebration. Hartman, a Christian,

communicated his religious objections to his supervisors and

was promptly called in and told his communication was

``inappropriate.'' Hartmann was fired.

Oakland city employees posting a flier on a company

bulletin board forced to remove flier and threatened with

discipline. Oakland, Calif., city employees Regina Rederlord

and Robin Christy formed a group called the ``Good News

Employee Association'' and posted a flier on a company

bulletin board advertising a ``forum for people of faith to

express their views on contemporary issues of the day, with

respect for the natural family, marriage and family values.''

After a lesbian employee complained of being offended by the

flier, the city removed the flier and threatened the two

women with adverse employment action for placing the fliers

``in public view which contained statements of a homophobic

nature and were determined to promote sexual orientation

based harassment.'' A federal court upheld the city's action.

In Portland, Maine, city officials canceled a $60,000 grant

for a Salvation Army meals-on-wheels program for senior

citizens. Why? As a Christian denomination, the Salvation

Army won't provide marital benefits to homosexual employees,

thus running afoul of the city's ``sexual orientation'' law.

When the Portland's ``sexual orientation'' ordinance was

introduced, proponents argued, as they do often today, that

it would merely ensure that ``people won't be fired for being

``gay.''

A District of Columbia human rights commission ordered

Georgetown University, a Catholic college, to violate church

doctrine and sponsor a pro-homosexual group on campus. A

court agreed, saying the District's ``sexual orientation''

law overrode the school's religious freedom. It didn't matter

that neither ``sexual orientation'' nor sodomy are protected

in the Constitution or that religion is specifically

protected. In the hands of the judges, ``sexual orientation''

takes on a life of its own.

In 2003 Atlanta Human Rights Commission ordered a local

golf club to extend spousal rights to gay member partners,

Thankfully officials intervened, and the Georgia legislature

promptly passed a law exempting private clubs from local

anti-discrimination obligations.

In June, 2001, The District of Columbia's Commission on

Human Rights fined the Scouts $100,000 and ordered them to

reinstate two openly homosexual leaders. That decision was

overturned in court, but the Scouts paid heavy legal fees.

In Arlington, Virginia, a video duplicator had been ordered

by the Arlington County Human Rights Commission to produce

video material for a lesbian activist or pay for someone else

to duplicate the videos. The videos Vincenz wanted duplicated

were two documentaries entitled: ``Gay and Proud'' and

``Second Largest Minority''. Tim Bono, argued that he could

not, in good conscience (him being a Christian), produce

material that promoted homosexual activity.

In 2006 the 9th Circuit Court in California ruled last year

(06) that members of a Christian employees group for the city

of Oakland could not use words like ``marriage,'' ``natural

family,'' or ``family values'' in email correspondence or on

posters in city offices where a wide variety of groups are

allowed to post. The 9th circuit panel decided that such

words were akin to hate speech because they made homosexual

city employees uncomfortable.

Cases Where Courts Wrongly Denied Religious Exemption

Fike v. United Methodist Children's Home of Virginia, Inc.,

547 F. Supp. 286 (E.D. Va. 1982)--an orphanage founded by the

Methodist Church, trustees required to be Methodists, sought

to teach Christian doctrine and belief to the children. New

President sought to take group in more secular direction and

was fired, despite the entity's desire to recapture its

original founding mission to be a thoroughly Christian (and

Methodist) charity service. Court held it had become too

secular in the interim, and denied religious exemption.

Pime v. Loyola University--Catholic University denied the

general religious exemption under Title VII despite the fact

that it was founded by Jesuits, its charter requires its

President to be a Jesuit, and more than one third of its

trustees are Jesuits.

Doe v. Abington Friends School, 480 F. 3d 252 (3d Cir.

2007)--religious school run and funded entirely by Quakers

not entitled to early dismissal on religious exemption

grounds in an Americans with Disabilities Act case, but was

required to submit to extensive discovery demands of the

plaintiff.

EEOC v. Kamehameha School/Bishop Estate, 990 F.2d 458 (9th

Cir. 1993), cert. denied, 114 S. Ct. 439 (1993)--private

Protestant religious school denied Title VII religious

exemption even though it had numerous religious

characteristics and activities.

EEOC v. Townley Eng'g & Mfg. Co., 859 F. 2d 610 (9th Cir.

1988)--no exemption for manufacturing company whose owner had

a clearly religious world view and wanted it to permeate the

workplace.

Mr. Speaker, I want to thank the gentlewoman from Florida (Ms. Castor) for yielding me the customary 30 minutes, and I yield myself such time as I may consume.

(Mr. HASTINGS of Washington asked and was given permission to revise and extend his remarks.)

Mr. Speaker, Federal law bans job discrimination based on race, color, national origin, or gender. In addition to Federal law, 11 States have passed laws prohibiting discrimination on the basis of sexual orientation and gender identity, while another eight States bar discrimination on the basis of sexual orientation.

The Employment Non-Discrimination Act would extend Federal employment discrimination protections to employees on the basis of their actual or perceived sexual orientation.

Mr. Speaker, I strongly oppose discrimination in the workplace, and I believe that skills and job performance are essential for determining whether employees are hired, promoted, or dismissed. However, I do not think it is the place of the Federal Government to legislate how each and every workplace operates. As a former small business owner, I know that what brings success

to one company does not necessarily bring success to another.

As I mentioned, a number of States have enacted State laws in this area. That is their right as States. Many small businesses and large corporations have chosen to adopt their own policies. That is appropriate as well, Mr. Speaker. This bill as written, though, raises a number of concerns, including that it would expand Federal law into a realm where perception, Mr. Speaker, would be a measure under discrimination law.

On Monday, my colleagues on the Rules Committee and Members testifying before the committee pointed out that debate on the bill, at least in committee, had been productive and a respectful one. Mr. Speaker, I am truly disappointed that moments later, the Democrat- controlled Rules Committee chose to report out a rule that denies the House and the American people the opportunity for a full and fair debate by prohibiting 99 percent of the Members of the U.S. House the opportunity to come to the floor and offer amendments.

For the last 2 weeks, Democrat leaders have had the opportunity to amend, alter, and change this bill. This editing and rewriting has been done behind closed doors and is contained within the Miller-Stupak amendment. Democrat leaders have acted to deny a public debate and to deny Republicans the opportunity to offer an amendment similar in scope to the Miller-Stupak amendment. This is not an open and honest way to run the House, and it is not what Democrat leaders promised the American people only a year ago.

This rule only makes three amendments in order, Mr. Speaker, but buried in this rule there is a special provision, a special provision, that allows amendment No. 3 in the report of the Committee on Rules to be withdrawn by its proponent before the question of adoption.

Mr. Speaker, what does this mean? It means that the Rules Committee decided to make three amendments in order but denies the House a vote on one of those amendments. I just have to wonder why the Democrat Rules Committee is denying a vote on this amendment. My friend from Florida was up there, and I would yield to the gentlewoman from Florida if she can tell me why this provision is in the bill to deny the House a vote on amendment No. 3.

I would yield to my friend if she would explain this for me.

Mr. Speaker, I thank the gentlewoman for giving me that option. I can't remember how many times I have been in the Rules Committee talking about and asking Members who come forward with potential amendments what their choice would be, would they like to have an open rule or would they like to have a closed rule. And every time I hear, at least from the members of the Rules Committee, that the Rules Committee will decide.

Now, it sounds in this particular case that one Member decided that she didn't want a vote on it, so we deny everybody in the House an opportunity. The gentlewoman said that she would like to be able to vote on this. I will give her the opportunity to do so.

Mr. Speaker, I have to say I have served on this Rules Committee for a decade, and I cannot recall one instance when Republicans were in control that a rule allowed a Member to bypass House Rules and withdraw an amendment. I believe it is wrong for a substantive legislative issue to be raised on the floor only to deny Americans, through their representatives, a voice on that amendment.

Let's be clear about what is happening here. And that is that the rules of the House are being altered to block the House from voting on this amendment. It is clear and simple. We were elected to represent our constituents by casting a vote and votes, and today Democrat leaders are denying us a vote. I am extremely concerned with this unprecedented rule and I have an amendment, and I hope the gentlewoman will support me. My amendment would, in section 1 of the resolution, strike the sentence which begins, ``Amendment No. 3 in the report of the Committee on Rules.''

Mr. Speaker, I ask unanimous consent that the resolution be amended to reflect the change as offered in my amendment.

Mr. Speaker, did I hear objection?

No, the question I have, I ask unanimous consent that the amendment be considered and adopted.

Is my amendment now before the body?

Does the gentlewoman yield to me so that I can offer the amendment?

I just want to make this clear, Mr. Speaker. I am asking unanimous consent to have the amendment that I described be considered. Now, if I have to engage the gentlewoman for that determination, I would be happy to do so, but I am asking unanimous consent that that be done. I am just asking for a ruling on this.

So, Mr. Speaker, the way I understand your ruling, then, is that I hear no objection; so, therefore, my amendment should be made in order, and I would like to move the proper procedure as I don't hear any objection.

So there has been an objection?

Will the gentlewoman yield? Did she reserve the right to object and would she yield at least to explain why she objected?

Parliamentary inquiry, Mr. Speaker.

If I attempt to amend this, what procedure would I go through in order to try to amend this rule?

Further parliamentary inquiry. Then the only means I have is through the previous question and not to ask unanimous consent?

Will the gentlewoman yield so I can ask unanimous consent to amend the rule?

I understand.

Well, if that's the case, then, Mr. Speaker, I accept the ruling, and I wish I had a more full description of why there is a problem not at least allowing potentially a vote on amendment No. 3.

Mr. Speaker, I have no other choice but to ask my colleagues, then, later on today to defeat the previous question so that I can amend the rule by striking the language that I described that allows the proponent of amendment No. 3 to withdraw their amendment before a vote.

So, just let me be clear. When I offered this motion, by voting ``no'' on the previous question, Members will, therefore, be allowed to show their support or opposition on amendment No. 3, which would expand the bill's protections to persons discriminated against based on gender identity. This is defined in the amendment as ``gender-related identity, appearance, mannerisms or other characteristics of an individual, with or without regard to an individual's designated sex at birth.'' Now, Members who choose to say ``yes,'' then, on the previous question would, therefore, be showing their support for denying Members of this House an opportunity to vote on that issue.

So, Mr. Speaker, I would urge, and I will talk about this later, but I urge my colleagues to vote ``no'' when I offer that motion on the previous question.

With that, Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself 1\1/2\ minutes.

You were speaking, if I heard you correctly, on the Baldwin amendment. Now, the way the rule is structured, there is potential for not a vote on that amendment. I'm going to offer a motion on the previous question to allow that to be voted. Now, if I understood what the gentlelady was saying in her remarks, she would like the opportunity to debate that and presumably vote on that. So I would hope that the gentlelady would join me in voting ``no'' on the previous question.

I yield to the gentlelady.

Reclaiming my time, Mr. Speaker, I hope the gentlelady then will join with me in defeating the previous question so, in fact, we can have a vote on that amendment.

I thank the gentleman for yielding.

If the gentleman was listening to my remarks, I know he came in, unfortunately, after I had started making my remarks, but my whole point was suggesting that we have a process here where we can dispose of the measure, either for or against. That's all I'm saying.

Mr. Speaker, I yield myself 1 minute.

I appreciate my friend from Massachusetts for yielding to me and at least airing in a brief exchange where I was trying to explain my position base was on the procedure and the rule. He took back his time. And while I think he may have conceded that that's what I was talking about, he said something to the effect of that's not what you meant. Now, I think he is expanding what my thought process is, but I do appreciate the gentleman for at least yielding to me.

I will yield to the gentleman.

Reclaiming my time, I have a great deal of respect for the gentleman from Massachusetts, and he is one chairman who regularly comes to the Rules Committee and wants to have a full and open debate.

I think that the gentleman would have to concede that this is a very unusual step where we are self-building into the rule an opportunity to deny a vote on an amendment that was made in order. That is contrary to what I've heard the gentleman say many times.

Sure, I would be happy to yield.

Mr. Speaker, I yield myself 15 seconds.

This is a very, very unusual procedure. And the whole point of a body like the United States Congress is to debate and dispose of issues. We are being denied that under the rule.

I yield 2 minutes to the gentlelady from Florida (Ms. Ginny Brown- Waite).

Mr. Speaker, I am pleased to yield 7 minutes to a classmate of mine, the gentleman from Indiana (Mr. Souder).

Mr. Speaker, I will yield the gentleman from Ohio 30 seconds, if the gentleman will yield.

Mr. Speaker, reclaiming my time, I gave the gentleman time to hopefully respond to what I am going to suggest,

and that is if he would vote ``no'' on the previous question, that would be to amend the rule to allow a vote under normal rules, normal order. So if you would join me in voting ``no'' on the previous question, you will have an opportunity to vote on that amendment.

Mr. Speaker, at this time I yield 2 minutes to the newest Member, the gentleman from Georgia (Mr. Broun).

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I continue to reserve the balance of my time.

Mr. Speaker, I thank the gentleman for yielding, and I would probably respond to your direct question that for the same reason for the 20 years prior to that your party didn't bring it up either.

But what I want to say, and I thank the gentleman for yielding, the gentleman said that the purpose of the House is not to debate every issue. I would tend to agree with that. But I think that the gentleman would have to agree with me that when there are propositions that are made in order, whether it is a bill or whether it is an amendment, that they ought to be debated and disposed of by the House and not be covered up, if you will.

Mr. Speaker, I yield myself 30 seconds.

I yield to the gentleman from New Jersey.

Mr. Speaker, reclaiming my time, I am glad the gentleman would do that. I hope he would join me. I am just worried that this is so unprecedented for this to happen. That is the point I made from the outset, and that is the point I make right now.

Mr. Speaker, I reserve the balance of my time.

I thank the Chair, and I yield myself 3 minutes.

Madam Chairman and Members of the House, it is disgraceful but true that in much of the United States, it is perfectly legal for employers to fire workers simply on the basis of their sexual orientation.

I am proud that today the House will vote on legislation to end this discrimination. It has no place in American society.

The legislation we are considering was first introduced in the House in 1975, more than 30 years ago, and in the last three decades, gay, lesbian, and bisexual Americans have waged a courageous campaign for their workplace rights. I regret that they have had to wait so long for this vote, but I am pleased that this historic day has finally arrived.

The Employment Non-Discrimination Act ensures that employment decisions are based upon merit and performance and not prejudice. Federal law and the laws of 30 States permit employers to discriminate against employees based solely on their sexual orientation. In those 30 States, employers can fire, refuse to hire, demote, or refuse to promote employees on the basis of sexual orientation alone.

Earlier this year, under Chairman Andrews, the Health, Employment, Labor and Pensions Subcommittee heard testimony from Michael Carney, a highly decorated police officer. Officer Carney was initially denied the opportunity to return to his job with the Springfield, Massachusetts Police Department because he is gay. Fortunately, Massachusetts is not one of the 30 States to deny these basic rights to gay workers, and Officer Carney was eventually able to return to his job.

But that was not the case for Brooke Waites, who testified at the hearing. Ms. Waites was fired from her job in telecommunications after her employer discovered that she was a lesbian. Since the State of Texas allows employers to fire workers based on sexual orientation, Ms. Waites had no recourse. She could not get her job back.

It's hard to believe that fully qualified, capable individuals are being denied employment or fired from their jobs for these completely nonwork-related reasons. This is profoundly unfair and certainly un- American. Unless we act to outlaw this discrimination, millions of American workers will continue to live with the legitimate fear that they could be fired or denied a job and wind up unable to provide for themselves and their families. That is why it is essential that this Congress act to protect the rights of all workers, regardless of their sexual orientation.

The Employment Non-Discrimination Act extends employment nondiscrimination protections to gay, lesbian, bisexual, and heterosexual people. It prohibits employers, employment agencies, and labor unions from using an individual's sexual orientation as a basis for employment decisions such as hiring and firing, promotion, or compensation. The bill prohibits employers from subjecting an individual to different standards of treatment based upon the individual's sexual orientation. The bill does not apply to businesses with less than 15 workers, private membership clubs, or the U.S. Armed Forces. And it does not apply to religious schools or other religious organizations.

I urge my colleagues to support this legislation.

Madam Chairman, I reserve the balance of my time.

Madam Chairman, I yield 3 minutes to the gentleman from New Jersey (Mr. Andrews), the Chair of the subcommittee that did a marvelous job in handling this legislation.

(Mr. ANDREWS asked and was given permission to revise and extend his remarks.)

Madam Chair, I yield 3 minutes to the gentleman from Massachusetts (Mr. Frank), one of the pioneers of this legislation.

I yield 1\1/2\ minutes to the gentlewoman from California (Ms. Woolsey).

I yield 2 minutes to the gentlewoman from Ohio (Ms. Pryce).

I yield 1\1/2\ minutes to the gentleman from Georgia (Mr. Bishop).

I yield 2 minutes to the gentleman from Illinois (Mr. Emanuel).

May I just say, Madam Chairman, it's a rather interesting set of remarks, except it has nothing to do with the underlying legislation that is before us today.

I yield for the purpose of unanimous consent to the gentlewoman from New York.

(Mrs. MALONEY of New York asked and was given permission to revise and extend her remarks.)

I yield 1 minute to the gentleman from Minnesota (Mr. Ellison).

Madam Chairman, I reserve the balance of my time.

Madam Chairman, I yield 30 seconds to the gentleman from New Jersey (Mr. Andrews).

I yield 1 minute to the gentlewoman from Wisconsin (Ms. Moore).

Madam Chairman, I yield myself 1 minute.

Madam Chairman, I appreciate the frustration of my colleagues on the other side the aisle. They really don't like this bill. They don't believe that we should be outlawing discrimination against gay and lesbian individuals. What they are upset about is that most of the handles that they thought they could grab on to to destroy the consensus for this bill are gone.

Why are they gone? Because we went through a markup. We listened to our colleagues on the other side, and we made adjustments. We had a religious exemption in that many of the religious organizations strongly supported. We listened to the debate. We went back to them and suggested that a straight exemption from title VII would be preferable for all of those involved.

So we have continued to listen as that process has gone through. And, yes, we have a bill here now that is far more acceptable to far more Members of the Congress of the United States because it does what it says it is going to do.

Madam Chairman, I yield 1\1/2\ minutes to the gentlewoman from California (Mrs. Davis).

Madam Chairman, I yield 1 minute to the distinguished majority leader, the gentleman from Maryland (Mr. Hoyer).

Madam Chairman, I yield 1 minute to the gentleman from Virginia (Mr. Moran).

Madam Chairman, I yield 1\1/2\ minutes to the gentleman from South Carolina (Mr. Clyburn), the distinguished majority whip in the House.

Madam Chairman, I yield 1 minute to the gentleman from Washington (Mr. Inslee).

(Mr. INSLEE asked and was given permission to revise and extend his remarks.)

I yield 1 minute to the gentleman from Illinois (Mr. Kirk).

Madam Chairman, I offer an amendment.

Madam Chairman, I yield myself 4\1/ 2\ minutes.

Madam Chairman, I rise in support of an amendment to this ENDA legislation that I and Mr. Stupak have written to ensure that this law will protect religious liberties of religious corporations, societies, associations, and in particular, religious schools, including those religious schools that are not affiliated with any particular church or denomination. Our amendment would make it clear that the ENDA exemption matches the religious exemption found in title VII of the Civil Rights Act of 1964. Under my amendment, a religious corporation, association, or school would be categorically exempt from ENDA.

In addition, our amendment also clarifies that the references to the term ``married'' refer to the Federal definition of marriage as between one man and one woman, as enacted in the 1996 Federal law referred to as the Defense of Marriage Act.

With respect to the religious exemption, this issue has been the cause of a lot of confusion in the past weeks. The religious exemption that was part of the ENDA bill that passed out of the Education and Labor Committee on October 18 was exceptionally broad; however, several nondenominational religious schools raised concerns that they might not be covered under the ENDA exemption.

For example, the president of Wheaton College in Naperville, Illinois, sent a letter to Representative Tim Walberg in advance of the Education and Labor Committee's markup on ENDA. Mr. Walberg then shared that letter with the entire committee, and our Republican colleagues argued that Wheaton College, which is clearly a religious school despite the fact that it is not controlled by or affiliated with any specific church, may not be covered by the ENDA exemption. That argument was incorrect.

Wheaton, along with other religious schools and organizations such as the Council for Christian Colleges and Universities, asked that we ``ensure that the act categorically exempts religious organizations as in section 702(a) of title VII,'' and we have done precisely what Wheaton College and the Council for Christian Colleges has asked us to do.

Under this amendment, if a religious organization, including a religious school, is exempt under either section 702(a) or the arguably broader section 703(e)(2), then that organization or school is exempt from ENDA, period. So, if a school qualifies for either one of those exemptions under title VII, it is categorically, as they requested, exempt from ENDA. By directly referencing title VII, we also ensure that the many decades of case law on title VII's religious exemption is imported to ENDA.

This amendment provides clarity for religious schools that have experience with the title VII exemption, and it should satisfy all of their legitimate concerns about ENDA.

Let me be clear, the title VII exemption, and therefore, the ENDA exemption, applies to both nondenominational religious schools like Wheaton and church-affiliated schools. And as one court explained, ``Even though a Christian corporation or organization is nondenominational, it nevertheless may subscribe to particular religious views with which other Christians do not agree, and conversely, it may disagree with the religious views of other Christians.'' And to go on, the court said, ``This is precisely the situation for which the title VII exemptions were enacted; the exemptions allow religious institutions to employ only persons whose beliefs are consistent with the views of the religious organization.'' And that is the purpose of this exemption. That is the purpose of this amendment.

In addition to clarifying the scope of the ENDA religious exemption, my amendment also specifically states that the references to marriage in ENDA refers to the definition of marriage as defined in Federal law. Specifically, these terms in ENDA are given the meaning provided by the Federal law that is referred to as the Defense of Marriage Act, which defines marriage for Federal purposes as the union of one man and one woman. That is the definition that applies to ENDA, and my amendment makes that definition absolutely clear.

Madam Chairman, because our amendment offers strong protections for religious organizations, including nondenominational or nonaffiliated religious schools, and because our amendment clarifies that the Defense of Marriage Act operates to define the term ``marriage'' in this bill, I trust that the Miller amendment will receive a large bipartisan vote in its favor.

Madam Chairman, I would like now to yield 4 minutes to my cosponsor of this legislation, Mr. Stupak.

Does the gentleman have additional speakers? We only have one speaker left and we have the right to close.

Madam Chairman, I yield the remaining time to the gentleman from New Jersey (Mr. Andrews).

I thank our distinguished ranking member.

``Perceived'' is, in fact, a real problem because many businesses simply won't go to court. Obviously they will negotiate or not bother with it. That's the type of intimidation tactics that occur.

I am against the underlying bill. I have never hidden that I'm against the underlying bill. I think it's a disaster for Christian bookstores, at least 85 percent of which would fall under this, all sorts of Christian colleges. Even with the well-intentioned amendment that certainly improves the bill that Chairman Miller is offering, it still doesn't fix the underlying problems.

One prominent attorney says that basically religious rights have to be trumped by sexual rights in the workplace, and that's the goal of this act, and that this gives religious rights a secondary status in our society to sexual rights.

I want to address one other thing, and I apologize for bringing politics into this. In my last campaign, in the last 10 days of my campaign, a cookie-cutter ad was dropped on me that started with pictures of Speaker Hastert and Jerry Lewis. Then a little clip was inserted into the ad that said Speaker Hastert visited my district and that I was proud to have him visit my district. Then pictures of Duke Cunningham came up, and then a picture of Bob Ney came up, then a picture of Mark Foley. Mark Foley's picture came out from the screen, referring to ``Friends of Mark Souder'' and said that Mark Souder has friends who have even had unnatural sex with minors, which was a smear on Mark Foley; nothing was either proven or even directly alleged that way. But for a party that ran cookie-cutter ads, in order to get the majority against me, every half hour referring to unnatural sex with minors that wasn't proven and smeared me, Mark Foley, and others, to stand down here, not allow a vote on gender because they wouldn't want to divide their party on the vote, not allow any direct votes on ``perceived,'' not allow any religious protection votes, and then to attack us for being intolerant when your party used that ad against me and others is a tad cute.

Madam Chairman, I would like to insert into the Record a letter from Agudath Israel of America on how this impacts Orthodox Jewish groups and their reasons they are opposing this, and an article by Andrew Sullivan, a gay editor of The New Republic, who correctly points out that, in fact, this does not meet the discrimination standards in the sense of, if we were having a situation in America where gays, homosexuals couldn't get jobs, it would be a different challenge.

But I wanted to make a couple of points. There is a great irony to this bill. In the faith-based debate, we couldn't get title VII included, and now the Democrats have included it in this bill.

The Democrats opposed the Defense of Marriage Act, and now they are putting it in this bill.

Why does the bill exempt the military? Why can government discriminate and the private sector not discriminate? How in the world is this going to be upheld in court, to be able to hold a standard that the military can discriminate, that religious groups can discriminate, but Christian bookstores can't discriminate?

Clearly, in this bill the majority has tried to provide political cover, a fig leaf, so they can try to move a bill through, knowing full well that once you have the underlying bill, these other protections are going to be stripped out over time. It is internally inconsistent and ironic that the very people who oppose these things now insert them in this bill.

Another irony in this bill is that apparently the Boy Scouts' paid employees fall under this, but their volunteers don't. But this raises a question, what if they get their mileage reimbursed? What if they get expense reimbursement? It leads to a question of what if they go on and off the payroll. What about if they get a tax deduction? A lot of the reasons religious organizations are concerned about this is that is, in fact, a government benefit. Once we have a law that states that discrimination against homosexuals is wrong, this is obviously open to court interpretation, as many others are.

This is a bill fraught with so many problems that it should not see the light of day.

Agudath Israel of America,

Washington, DC, November 5, 2007.

Honorable Members,

House of Representatives.

As the House of Representatives prepares to vote on H.R.

3685, the Employment Nondiscrimination Act, I write on behalf

of Agudath Israel of America, a national Orthodox Jewish

organization, to urge you to oppose the measure.

In an earlier correspondence, we explained in detail our

key concerns regarding the legislation, particularly the

shortcomings of the exemption for religious organizations set

forth in Section 6. We will summarize them here:

Religious Freedom of Religiously-Controlled Charities Might

be in Jeopardy. The exemption, by reference to Title VII,

covers religious corporations and educational institutions

controlled by religious corporations. Courts have given us no

clarity as to whether Title VII protects independently-

incorporated, secular, charities that are ``in whole or in

substantial part controlled, managed, owned or supported by a

particular religion, religious corporation, association or

society.'' Because this bill on its face fails to settle this

issue, thousands of charities could be adversely affected.

Secular Institutions Employing Religious Workers will not

be Protected. Secular social service agencies or religiously-

related businesses that employ workers that abide by certain

religious/traditional tenets would not be protected. Unlike

Title VII, where discrimination based on religion, sex or

national origin is permitted when such status is a ``bona

fide occupational qualification (BFOQ),'' no similar

provision is included in ENDA when ``sexual orientation'' is

a BFOQ.

Religious Groups that Avail themselves of Protection May

Face Retaliation. In recent years, traditional values groups

that adhere to constitutionally protected membership policies

based on sexual orientation have faced various forms of legal

disability from local governments. Groups claiming ENDA's

exemption should not be treated as pariahs. The bill should

include protection against retaliation.

Thank you for considering our views

Rabbi Abba Cohen,

Director and Counsel.

I want to thank Chairman Miller. As a former Republican staff director on the Children and Family Committee when he was chairman of that, and working with the committee, I found, as he said earlier, that he listened to the Hoekstra amendment committee and made some adjustments that, in fact, occasionally he is right. It's occasional, but occasionally he is right. This addressed some of our concerns. It did not address all of our concerns.

As you know, when you are dealing with religious law or any law, it isn't at the heart of the matter, it's at the fringes. In communion, can minors take real alcohol and wine? Can Native Americans smoke peyote?

Here we're not dealing, and this amendment helps clarify that, we're not dealing with religious colleges. We're not dealing with the church proper, but law in the United States is we deal with religious discrimination, the ability to deal whether sexual discrimination trumps religious discrimination, which is fundamentally what this bill is about, that people who hold deeply held religious beliefs, which is part of Orthodox Jewish teaching, fundamentalist Muslim teaching and, in the Bible, unlike civil rights, where civil rights were led by William Wilberforce in England, by the abolitionists in America because the Bible was not explicit. But here, in fact, the Bible is explicit. The Koran is explicit. The Torah is explicit. And people have deeply held religious beliefs. So 85 percent of the Christian bookstores in America would not be covered by this protection. Certain types of church camps would not be, depending on how it's handled. Group homes that are often independent and do not have an overt religious message that grew out of the faith message of a church but do not necessarily now have an overtly religious mission, they're part of the outgrowth of the religion, would be covered. They wouldn't be able to have a husband and wife be the house parents under this bill. Religious law is a lot more complex than it was presented today.

One of the other challenges here is when we are trying to talk about how do we debate in public life over people of faith and which party are they going to be in, how are we going to reach out to this, the American people have heard in this debate today people who seriously are uncomfortable with this debate. We don't like to talk about this type of thing. I have tried to treat everybody in my life, regardless of how they have been in this Congress or friends back home or people I have worked with, with respect and dignity and do not practice personal discrimination.

But I have heard my religion and my religious belief called prejudiced, bigoted, hate-filled, that the predominant religions in America have had their basic beliefs, those who believe in a literal Bible, have seen their faith smeared today on this House floor, and I am very disappointed in much of the tone. I understand the passion. I understand why people who have a homosexual life-style feel they have been discriminated against, but this is a classic question in our country. If, in fact, nobody could get a job, we would be facing a different challenge today. I openly admit that.

But the challenge here is do people who have deeply held religious convictions based on the fundamental text of their faith have the right to practice their faith, too, or are they going to be trumped? This amendment is a step, but it's only a step.

Madam Chairman, I yield myself such time as I may consume.

I rise in opposition to H.R. 3685, a proposal fraught with burdensome mandates, litigation traps, and constitutional concerns.

This bill purports to prohibit discrimination in the workplace, a goal to which we are all committed. However, the reality of this bill's consequences does not match the rhetoric of its supporters.

This bill departs from the longstanding framework and structure of the Civil Rights Act of 1964 by establishing stand-alone protections exclusively on the basis of sexual orientation. This new protected class would be afforded protections on the basis of vague and highly subjective measures that will cause confusion in the workplace and will result in costly litigation.

For example, the bill extends protections on the basis of ``perceived'' sexual orientation, a characteristic that is subjective by its very definition. How would an employer credibly refute such an accusation? This proposal could result in the exact opposite effect its supporters intend by creating new pressures on employers to consider and even document their employees' sexual orientation, actual or how it is perceived, in order to guard against litigation. This is a highly inappropriate infringement on employee privacy and would actually increase the consideration of such characteristics in the workplace. Also, any argument that the term ``perceived'' is already included in existing civil rights statutes is simply not true. This is a new term, applied to a new situation, which will increase uncertainty and litigation.

Even more broadly, this bill encroaches on two fundamental principles we hold dear: the free exercise of religion and preservation of the institution of marriage. H.R. 3685 is inconsistent with the longstanding religious exemption contained in title VII of the Civil Rights Act. The bill adds additional layers of complexity in determining whether a religious organization is covered, setting up highly intrusive Federal interference with the free expression of religion.

We understand an amendment is to be offered later today that attempts to move closer to existing title VII provisions. However, it remains unclear whether this amendment, which has been rewritten repeatedly, does enough to protect faith-based institutions.

On the issue of marriage, the majority adds a provision that prevents employers from considering marital status as a job qualification, even though they have not provided any evidence that such a limitation is necessary. We are left to speculate that the real reason for this provision could be an attempt to undermine the fundamental right of States to define, protect, and preserve the institution of marriage. The bill establishes new limitations on hiring practices only in those States that have prohibited same-sex marriage.

By limiting these new restrictions to States that have defined marriage as an institution between one man and one woman, the bill has essentially identified traditional marriage as a form of discrimination. This bill, then, could become the first step in a radical effort to undermine State marriage laws.

Madam Chairman, this bill has been introduced in various forms and fashions for some three decades. It has been introduced in the House three separate times this year alone. This is evidence of the inherent complexity that comes with such a far-reaching proposal.

Later today, we will consider an amendment that seeks to broaden these new protections even further, to purportedly cover discrimination based on gender identity, despite the fact that this provision was stripped from the bill before it was taken up in committee. There are serious practical and legal concerns with this amendment, and many questions remain unresolved. This is an effort to make an end-run around the legislative process, considering the full scope of this proposal only when it is convenient for supporters.

The bill before us is a sweeping departure from longstanding civil rights law, and its consequences will be far-reaching. A number of valid questions have been raised about how this bill will align with existing State and Federal anti-discrimination policies and those policies that have been voluntarily adopted by employers. These questions remain unanswered.

Because of that, I must oppose this bill and encourage my colleagues to do the same.

Madam Chairman, I reserve the balance of my time.

At this time, Madam Chair, I'm happy to yield 5 minutes to the ranking member of the subcommittee involved, the gentleman from Minnesota, Representative Kline.

I am happy now to yield 3 minutes to a member of the committee, the gentleman from Indiana (Mr. Souder).

I'm happy to yield 2 minutes to the gentleman from Ohio, Jim Jordan.

I am happy now to yield 3 minutes to the gentleman from Michigan, a member of the committee, Representative Walberg.

Madam Chairman, I rise to claim the time in opposition to the amendment. However, I do not oppose the amendment.

Madam Chairman, I yield myself such time as I may consume.

With this amendment, the majority tries to correct fundamental flaws related to hiring protections for faith-based institutions and the preservation of marriage. I will reluctantly support this relatively futile attempt, but let me be clear, on the issues of faith-based protections and the institution of marriage, this amendment fails to solve the problems. As such, even with adoption of this amendment, the underlying bill should be defeated.

For months, my colleagues and I have raised substantive legal and policy concerns related to this legislation. After a series of legislative false starts, the bill brought to the floor continues to pose a number of challenges. The amendment offered by Chairman Miller is an obvious attempt to address a few, but certainly not all, of the issues we have identified.

We expressed concern that the bill created a new anti-discrimination framework outside the existing scope of title VII of the Civil Rights Act of 1964. Among other things, this allowed for a new set of provisions to dictate the hiring rights of religious organizations, thereby stripping faith-based institutions of their long-standing title VII protections.

I appreciate that the majority has recognized and agreed with our concerns about how this bill would intrude on religious freedom. In response to those concerns, the amendment moves closer to title VII. Inexplicably, however, it still leaves out an important piece of current law.

Chairman Miller says his amendment fully restores protections to faith-based institutions. It does not. We expressed concern that the bill could undermine the rights of States to define, protect and preserve the institution of marriage. The Miller amendment deletes troublesome provisions related to employee benefits for same-sex couples and references the Federal Defense of Marriage Act, which defines marriage as a union between one man and one woman. Unfortunately, despite these steps, or perhaps even because of them, the bill taken as a whole continues to create potential conflicts between State and Federal marriage laws.

Chairman Miller says his amendment protects the rights of States to define and preserve traditional marriage. It does not.

A Presidential veto threat has been issued on constitutional and policy grounds. This amendment fails to fully address those concerns. I reluctantly support passage of this amendment to partially address a few of the problems we have identified throughout this bill's troubled legislative path.

But I remind my colleagues that this amendment is not enough. The bill remains a litigation trap that undermines marriage and provides insufficient protections to faith-based organizations. Even after supporting this amendment, I urge my colleagues to reject the underlying bill.

Madam Chairman, I reserve the balance of my time.

Who has the right to close?

Madam Chairman, I am happy to yield at this time 2\1/2\ minutes to the gentleman from Georgia, Representative Broun.

Might I inquire how much time we have left?

At this time, I would be happy to yield 3\1/2\ minutes to the gentleman from Indiana (Mr. Souder).

Madam Chairman, I yield myself the balance of my time.