Home Health Care Access Protection Act of 2007

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 offer an amendment.

Madam Chairman, I yield myself 3 minutes.

My amendment is very simple. It strikes paragraph 3 of 8(a). It does that because, what this clause does, in the name of protecting homosexuals, actually takes out any ability of any business, any youth home, any group, any organization to have any kind of marriage criteria. This doesn't go to the defense of marriage question directly, although it builds in inherent contradictions, because the last amendment, in attempting to address that, merely bred confusion and contradiction inside of the bill, which will have to be resolved by courts. Defense of marriage makes it so that, for example, somebody married in Vermont or Hawaii doesn't have to have their marital status recognized in Indiana. But it doesn't address the fundamental question of can marriage be a criteria.

In fact, this bill even goes beyond that. It doesn't allow you to have any kind of criteria on any type of sexual behavior. It isn't just about homosexual behavior. It isn't clear that any organization can have any guidelines on adultery, on polygamy or anything else, because by eliminating marriage, by eliminating any kind of sexual standards, it's unclear what standards you can have that relate to sex at all. So if you have any kind of ministry goal and aren't a profoundly Christian organization that falls under the very narrow definition of the last amendment, you're in deep trouble here.

So you can't find things like we've seen just recently on the Web site that says things like house parents, cottage parents, counselor parents, family teaching couples. Any organization that wants to try to do this cannot do so. This obviously comes in for Christian child care centers. This is going to come in, which are not overtly Christian missions, it's going to come into exercise centers that may be operated by religious organizations. It comes into all Christian bookstores, obviously, into different counseling centers that maybe both secular and Christian counseling will not be covered by their ability to say that in order to do family counseling you have to be married and you have to subscribe to certain kinds of sexual standards. They will be prohibited, because they aren't covered by title VII under a narrow definition of title VII.

My amendment would eliminate all this. It doesn't fix the bill. I admit, it doesn't change my opinion on the underlying bill, but it helps solve a deeper problem that was created, and I understand why it was created, because those who want to protect homosexuals didn't want to have a back-door way to, in effect, discriminate against them. But by doing this, they set up another class of discrimination, once again pitting sexual discrimination up against the right to practice religious liberty.

I'll reserve the balance of my time.

I yield myself such time as remains.

I appreciate the Chairman's explanation, and there's no use to belabor a point when you've won.

At the same time, I do want to clarify a couple of things inside that.

A, my amendment is far too weak to reach my own goals, and I realize that. I was hoping it could be adopted because I think it improves the bill.

B, I think that the chairman correctly stated the challenge here and the inherent inconsistency in the bill. By merely removing this clause, it didn't allow, in effect, a bill that was intended to protect gay people into other areas, in marriage criteria and other sexual things, because that could have been far more reaching because many organizations have in one man-one woman marriage clauses, also fidelity clauses with the marriage clause, which is why I refer to that.

In this mix, however, I understand that in the purposes of the bill, without the protection that you announced, in fact, somebody could try to get around the intent of the bill. And I understand what you're trying to address.

So, in conclusion, while my amendment, I think, doesn't fix or still has inherent contradictions, still is going to lead to lawsuits, still lead to all sorts of questions, nevertheless, it will improve the bill.

I appreciate the chairman's willingness to support this amendment. It's an incremental improvement. It doesn't fix much, but at least it's another small step.

I yield back.

Madam Chairman, I claim the time in opposition.

If I may inquire, do I have the right to close?

Madam Chairman, I yield myself 4 minutes.

This amendment both would protect transgender in the sense of people who have had sex change operations, and transvestites, people who dress up as the opposite sex, who are not covered, apparently, under the underlying bill.

This bill was to come in front of our committee. Ostensibly, partly because there was a major convention, a disruption occurred on the other party's side over this particular amendment, and the bill was withdrawn. Then continued debate occurred, and in committee a number of the Democrat members voted against the bill because this amendment wasn't included, and, presumably, that was going to be so the amendment could be offered on the floor and people would have a right to vote on this.

I don't really need a right to vote on it. I think most people probably know where I stand on the issue. But I think that to not have a vote on an amendment like this is a political ploy. It's a political ploy in the sense of what appears to be happening here is that the majority doesn't want to have the embarrassment of their side dividing on an issue. Or maybe they're afraid that our people would actually vote for this amendment and put it over the top to kill the bill, but I would suggest on a vote like this, that would be extremely unlikely. I think it's more that they want to shield their Members from having a difficult vote. Therefore, they can go out and tell the transgender community, oh, we tried, but, in fact, in a very peculiar rule, it appears that the intention is to keep us from calling for a vote and having Members actually show where they stand on this issue, not where they give speeches on this issue but where they actually stand on this issue. Clearly, the word ``perceived'' in an amendment that I had been denied for this bill would have had a huge relevance also to this particular category.

The challenge before us as we look at this, and from a conservative perspective, we have heard repeatedly today from multiple speakers, from the opening debate on rules, through the general debate, through here, that we are eventually going to move in this direction. And yet we are told that we as conservatives are paranoiac, that religious organizations are going to be protected, this and that, it's going to be protected.

We have seen the Democrats move and add a title VII protection that they opposed over in the faith-based for years on this House floor. We saw them add a defense of marriage clause, which they had opposed for years. We've seen them move even to the point of including, contrary to what the majority leader said that the government is applying this, know that the military is exempt from having this bill applied to them, inconsistency. Clearly, they are willing to tolerate major changes in the majority's position in order to move the bill, which moves people on the other side to ask, what's the point of moving the bill if there are this many compromises? Oh, they've been saying all day long that they're going to expand this bill. Once it becomes law, it's going to go to court to resolve the different things. Hence, some of us believe that many of the things that were added today, on the marriage clause, on the religious exemption clause, the blocking of this amendment to be offered, were to make the bill more palatable. As my friend the chairman of Financial Services said, you can't get everything in the first thing. It's to make it more palatable to, in effect, move it in place.

And this isn't the end of the day here. This is the start of a move that many of us who just simply don't approve of the lifestyle, there are many different things we don't approve of, but this is a deeply held position of faith by millions of Americans. And this is an attempt, a start, of what's likely to be an increasing effort to have sexual liberties trump religious liberties.

Madam Chairman, I reserve the balance of my time.

I have the right to close since I am defending?

I will reserve the balance of my time until she yields back. I have the right to close.

Madam Chairman, I strongly oppose this amendment. I believe the majority of the House opposes this amendment.

Madam Chairman, I yield back the balance of my time and call for a recorded vote.

Parliamentary inquiry.

Since I moved for a recorded vote before the amendment was withdrawn and because I had the right to close, how did she get recognized over my motion?

But why did you recognize her when I had the right to close?

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).

Madam Chairman, I demand a recorded vote.

I ask unanimous consent to claim the time in opposition.

Madam Chair and members of the Committee, I first want to correct some of the mistaken assumptions that I think Mr. Souder just made in his remarks.

He claims that the language of section 8(a)(3) would undermine the definition of marriage that some States have chosen to adopt. This is untrue. Even after ENDA becomes law, regardless of whether section 8(a)(3) remains in the bill or is taken out, the States, for purposes of State law, decide marriage issues for themselves. Nothing in ENDA would change that. Nothing in ENDA would alter the Federal laws referred to in the Defense of Marriage Act.

Second, Mr. Souder makes a claim that section 8(a)(3) would have prevented an employer from firing an employee who has extramarital sex. Frankly, I don't see anything in the text of 8(a)(3) that discusses extramarital sex. In fact, I don't see anything anywhere in the text of ENDA that discusses extramarital sex, and I can't understand how Mr. Souder's come to this conclusion about extramarital sex. But the entire issue is just a diversion from what ENDA actually does.

ENDA is very simple. ENDA will prevent employers from firing a perfectly qualified gay, lesbian or bisexual employee just because of that employee's sexual orientation.

Madam Chairman, in short, I will vote for this amendment, but the fact of the matter is I don't think it is necessary. But Mr. Souder has pursued this course, and I think that it's important. Another important provision of ENDA is the nondiscrimination section that already outlaws employers from discriminating based upon sexual orientation through any pretext policy including the pretext of marital status.

Moreover, many States, including Mr. Souder's home State in Indiana, have already created State laws that allow a plaintiff to sue their employer based upon marital status discrimination. And those State laws would further protect against pretextual discrimination against gay and lesbian Americans.

Finally, I want to explain in more detail why I will vote for Mr. Souder's amendment. I have realized that section 8(a)(3) is redundant. It is unnecessary. The concern that section 8(a)(3) has sought to address and will actually be addressed in many cases by section 4 of

How much time do I have remaining?

I yield 15 seconds to the gentleman from Massachusetts (Mr. Frank).

I yield 15 seconds to the gentlewoman from Texas (Ms. Jackson-Lee).

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

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.

This is an emotional issue, it's a serious issue, and I think it's hard for some of us, I know on this, to control our passions. It's disturbing that some are offended, have been offended during the debate today, and I feel badly about that.

My concerns are more with the flaws that I see in the bill. I am concerned that we are all trying to end discrimination. I don't think you do that by passing laws. I think we have to engage people in their hearts, in their minds and try to work with that approach.

While this amendment does not correct or even address all of the challenges created by the underlying legislation, I recognize the incremental steps it takes. I appreciate the chairman for making this effort at trying to resolve these issues. I will support its passage.

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

I am grateful for the obscurity of the opposition's argument.

I first filed a bill 35 years ago to say that you couldn't fire someone because he was gay or she was a lesbian, and at the time people were very straightforward about their opposition. Times have changed. It is no longer fashionable to say that you ought to be able to discriminate against someone based on his or her sexual orientation, so we now get other arguments.

Let me say this: I have heard a number of people raise this argument that the real problem is that it says ``perceived.'' I do not believe that a single one of them would change his or her position if we were to remove that. They are opposed to the notion that gay men and lesbians, people like me, should be allowed to prove themselves in the workplace without discrimination, but that's not a good argument to make. So we get ``perceived'' as the argument, and it is not a serious one.

In the first place, it's arguing about having to defend a negative; it's wrong, both legally and factually. The burden of proof is on the complainant. No employer has to prove a negative. It is the complainant who has the hard job of proving the positive. That's why historically statutes like this, every time we try to protect some people against discrimination, we go through two phases. First, beforehand, we get the most absurd exaggerations of the chaotic impact it will have. After the fact, they are rarely, unfortunately, enforced very vigorously. And by the way, if this ``perceived,'' if this were a problem, we would have examples of it. Nineteen States have laws like this on the books, and how many examples have you had of the poor, befuddled employer who is so unable to perceive that he is put on the dock? None. This is a made- up issue made up by people who don't want to confront the real issue.

And here is the real issue: there are millions of our fellow citizens, Madam Chair, gay or lesbian, who live in fear that they could be fired because they live in States where there is no such protection. And we have had real examples of that. And what we say today is, no, you can't be fired because of that.

Why is ``perceived'' in there? Because otherwise you're opening a big loophole. By the way, this notion of ``perceived,'' it is so unusual that it's in the American Disabilities Act and has been interpreted by several judges, Justice Alito, Judge Mukasey and Poser, three radicals who have enforced this.

So, let's not hide behind this semantic. That is not the genuine motivation for opposition to this bill on the part of anyone in this House. What they are saying is, we don't want to protect working men and women from this.

Madam Chair, I was accused in the last campaign by a former Member of this body of pursuing a radical homosexual agenda. Well, here it is in the House today, working, getting a job. That's what we are asking for, the right for people to go to work and be judged solely on how they work. Let's get rid of the semantic obscurantism.

Madam Chairman, we have these laws in 19 States. Nothing like that fantasy has ever come forward. There is a saying that if it ain't broke, don't fix it. If it doesn't exist, you can't fix it.

They have made this up. We have had the experience for over 25 years with laws exactly like this in 19 States.

Parliamentary inquiry.

Is it in order to demand a roll call before the Chair has put the voice vote?

Mr. Speaker, I rise in opposition to the motion to recommit.

Before I begin, I have an inquiry: If I could yield to the gentleman from Virginia, the proponent of the motion, would he consider my making a unanimous consent request to change this to a ``motion of forthwith,'' so the House could simply adopt this ``forthwith'' and go to dinner?

Well, this is now clear. This is a motion to do this promptly. ``Promptly'' means at the speediest nine calendar days, because it does not, as the Parliamentarian has informed us in writing, waive any of the rules for committee meetings, for Rules Committee, et cetera. So the purpose here, the intent, perhaps not the purpose, but the unmistakable intent would be to put this off until after we are due to adjourn November 16. And for what purpose? For the purpose of restating what has already been stated.

It is interesting, Mr. Speaker, and I take some encouragement from this, that opponents of the principle of nondiscrimination don't want to debate it on its merits. We haven't heard any defense of discrimination. We just have a parliamentary maneuver to protect it.

This is not about marriage. In fact, this is not a recommit. It is a statement. It says ``nothing in this act may be construed.'' Correct. No one who reads English could think to the contrary.

But, just to make sure, the gentleman from California offered a motion, and the minority tried to have it not be roll-called, and you voted for it, Members of the House. It says, ``As used in this act, the terms `married' or `marry' refer to marriage as defined in section 7, title I of the U.S. Code, the Defense of Marriage Act.'' The Members of the House just voted overwhelmingly to reaffirm that definition.

So what do we have? A motion now simply to delay by reaffirming the last vote.

The gentleman from Indiana thought there was some other language that might lead to a marriage problem, so we adopted that. So this is the third effort to say the same thing. It is not to say the same thing, but to defeat it.

I would say this. I would recommend to my friend from California, who has done such a good job on this, once we have concluded this, report this out as a separate bill, this third reiteration, if it gives people some comfort.

I asked the gentleman to make it ``forthwith.'' If there was a real need to do this, it would be now part of the law and we would be voting. It is ``promptly'' because it adds nothing to the bill, nothing, literally nothing; it subtracts nothing. It is simply a motion to delay.

I now want to address that. I want to address the motion to delay.

Mr. Speaker, we say here that we don't take things personally, and usually that is true. Members, Mr. Speaker, will have to forgive me. I take it a little personally.

Thirty-five years ago, I filed a bill to try to get rid of discrimination based on sexual orientation. As we sit here today, there are millions of Americans in States where this is not the law. By the way, 19 States have such a law. In no case has it led to that decision. The Massachusetts law passed in 1989, that did not lead to the decision in 2004. Unrelated.

But here is the deal. I used to be someone subject to this prejudice, and, through luck, circumstance, I got to be a big shot. I am now above that prejudice. But I feel an obligation to 15-year-olds dreading to go to school because of the torments, to people afraid that they will lose their job in a gas station if someone finds out who they love. I feel an obligation to use the status I have been lucky enough to get to help them.

I want to ask my colleagues here, Mr. Speaker, on a personal basis, please, don't fall for this sham. Don't send me out of here having failed to help those people.

We have already today twice voted overwhelmingly to repudiate any suggestion that this had anything to do with marriage. What you have is a ploy by people who want to keep discrimination on the books, who want to deny protection to so many vulnerable victims of discrimination, but they at least understand that is not something you can say explicitly. So they give us this sham.

I ask, I ask again, would the gentleman allow us to adopt this forthwith? I would yield to the gentleman for that purpose so we can make that forthwith.

I asked the gentleman a simple question.

The response is ``no.'' I was ready to yield to make this ``forthwith'' so this extra language which does nothing could be added. But if you don't do that, as they won't, and you vote for this, you are killing this bill. Understand that. Nine days later it is too late for this bill and we are out of this.

So I will close with this. Yes, this is personal. There are people who are your fellow citizens being discriminated against. We have a simple bill that says you can go to work and be judged on how you work and not be penalized. Please don't turn your back on them.

I thank my chairman and friend for yielding.

Madam Chairman, we very often hear people say in this House that they oppose discrimination. Today there's a chance to do something more than just say that you oppose discrimination; you can vote against it.

I listened to the questions raised by my friend from California, the ranking member of the full committee, and I would like to address them.

My friend says that there are burdensome new mandates imposed by this bill. That is not the case. If an employer has 15 or fewer employees, they are not covered by it at all. And there's really nothing burdensome about the idea that you can't refuse to hire or fire or mistreat someone because of their sexual orientation. That's no more of a burden than having the same rules based on race or religion or nationality.

My friend says there are highly subjective measures, and he points to the use of the word ``perceived'' discrimination. He says that when we ban discrimination based on perception of sexual orientation, it creates too much confusion. The reality is that precisely the same legal concept has been part of our Federal law since 1989 under the Americans with Disabilities Act.

Listen to this. I know the word ``perceived'' is not in the ADA, but the legal concept is the same. One Federal judge in New York heard a case, and that judge says that the case was based on ``harassment and discrimination based on her perceived disability.'' I'm not sure this judge is qualified, but most of the Senate does because it was Judge Michael Mukasey, who is now the President's nominee to be Attorney General of the United States. This doesn't create new confusion; it simply restates an existing principle.

On free exercise of religion, the gentleman from California is correct. There was some debate about the proper scope of the free exercise provisions in the underlying bill. Mr. Miller's amendment, which we will hear shortly, imports precisely the same standard that has existed for the exercise of religion for the last 42 years under title VII.

The gentleman raises questions about marriage and says this is a radical attempt or a first step in a radical attempt to redefine marriage. Mr. Miller's amendment will make it clear that precisely the opposite is true. Mr. Miller's amendment will take the language that was approved by the House, signed by President Clinton, in the Defense of Marriage Act, which defines for Federal law purposes marriage as one man and one woman and import it into this bill.

Finally, the gentleman says this is a sweeping departure from civil rights laws. Nothing could be further from the truth. This is not a departure from civil rights laws. It's an inclusion of millions of Americans who should have been included for a very long time. It's a question of simple fairness. It's a question that says if you are a computer programmer or a bus driver or a carpenter, your job situation should be based on how well you drive the bus or how well you can program the computer, not on your sexual orientation.

Madam Chairman, the record should reflect some accuracy in the point two of our friends just made that the proposition that the display of a religious artifact such as a Bible in and of itself creates a hostile work environment. There is not a shred of that in this bill, nor is there a shred of case law anywhere in the 42-year history of title VII that supports that claim. The majority certainly is welcome to supplement the record if we are wrong. I just don't see it.

Madam Chairman, I yield 1 minute to the gentleman from Florida (Mr. Hastings), a distinguished member of the Rules Committee.

Madam Chairman, we have two speakers remaining, including the Speaker.

Madam Chairman, I yield 1\1/2\ minutes to an icon in the protection of human and civil rights in our country, a hero for our generation, the gentleman from Georgia (Mr. Lewis).

Madam Chairman, at this time, it is my honor to yield 1 minute to a woman of faith and strength, the leader of our House, our Speaker, the gentlelady from California.

I thank the chairman for yielding.

Madam Chairman, I rise in support of this well-thought-out amendment from Chairman Miller and Mr. Stupak. I think it quite fairly addresses some of the concerns people have raised.

First, with respect to religion, on October 3, 2007, the president of Wheaton College wrote to our colleague, Mr. Walberg from Michigan. President Litfin worried about the scope of the religious exemption in the underlying bill, and here is what he said: ``I urge you to remove the problematic religious definition language currently in ENDA and ensure that the act categorically exempts religious organizations as in section 702(a) of title VII of the Civil Rights Act.''

Here is what the amendment in front of us says: ``This act shall not apply to a corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 pursuant to section 702(a),'' precisely what was asked for.

Second, I have heard concerns that there is preferential treatment or special rights for persons protected under this bill. The gentleman and others should read page 8 of the underlying bill, subparagraph (f), which is captioned ``No Preferential Treatment or Quotas.'' Let me read from it: ``Nothing in this Act shall be construed or interpreted to require or to permit any covered entity to grant preferential treatment to any individual or any group because of the actual or perceived sexual orientation of such individual.''

It's helpful to read the bill.

Finally, we have heard suggestions that somehow the institution of marriage is undermined. It's very important to read the second part of Mr. Miller and Mr. Stupak's amendment, subsection (c) and I will read it: ``As used in this Act, the term `married' or `marry' refer to marriage as such term as defined in section 7 of title I,'' which is the Defense of Marriage Act which explicitly defines marriage as a union between one man and one woman.

These were concerns that were raised. They are met. I respect and appreciate the fact that the ranking member of the full committee will vote ``yes'' on this amendment. So will I, and so will an overwhelming majority so we can proceed to passage of this bill with a strong bipartisan majority.

I urge a ``yes'' vote on this amendment.