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Congressional Record

Opposition Debate on Employment Non-Discrimination Act (ENDA)

Nov. 7, 2007

TODD TIART, Kansas

Although I join with all my colleagues in abhorrence to bigotry and discrimination, this disingenuous and vaguely-constructed overhaul of labor law is inconsistent with the free exercise of religion and weaken the fundamental Defense of Marriage Act.

America's churches, synagogues, and religious non-profit organizations must maintain the right to employ those that share their particular religious or moral worldview. Although the sponsors of this act claim that the religious exemptions found in the legislation are adequate, they are simply not strong enough to pass constitutional muster or fulfill legislative intent in the RFRA.

Madam Speaker, ENDA would also weaken the landmark Defense of Marriage Act (DOMA) by giving Federal statutory significance to same-sex marriage rights under State law. Federal law states that marriage is between one man and one woman. Maintaining DOMA is essential in defending the sanctity of marriage. However, the passage of ENDA will provide activist judges around the country the legal ammunition to undermine state and federal marriage laws. Courts in New Jersey, Vermont, and Massachusetts have all used state legislation similar to ENDA as a springboard for mandating same-sex marriage or civil unions. In 2005 Kansas overwhelmingly passed the Traditional Marriage Amendment by 70 percent. The people of Kansas have spoken. With the path is so clearly defined in history, it would be irresponsible for Congress to pass ENDA.

Madam Speaker, bigotry and discrimination is clearly wrong. However, tampering with such bedrock legal and constitutional standards such as the freedom of religion and DOMA is not the right solution. I urge my colleagues to join with me in opposing this legislation.

Ms. GINNY BROWN-WAITE of Florida. Mr. Speaker, I rise today in opposition to H.R. 3685, the Employment Non-Discrimination Act, and the rule that we have before us today. Primarily, I'm opposed to the measure's unclear wording that could easily lead to wide-ranging and serious consequences.

This bill would prohibit discrimination, which is a good thing, on extremely hard-to-define measures such as an individual's perceived characteristics. I think it's the perception and the ``perceived'' language in here that is very troubling to me as a former small business owner with up to 15 employees. It would be impossible for employers to operate a business while having to worry about being accused of mistreating someone based on the employee's ``perceived characteristics.'' This ill-conceived, vague language is nothing more than a golden ticket for America's trial lawyers. This loose wording is also an invitation for accusations by disgruntled employees who want to take advantage of a poorly constructed law.

Like all of my colleagues, I believe congressional policies should strive to promote a tolerant society. I believe many Members, including myself, would vote for it without the ``perception'' language in it.

The gentleman from Massachusetts spoke before very eloquently, as he always does, and he said, our laws should not say that gay people are bad people. That's not what this bill says, nor has any bill that has come before us ever said that. When people that I come in contact with begin to disparage individuals who may be gay, I point out to them that, you know, you don't know whether your Aunt Jen, our son Bill, your grandson Paul or your granddaughter may be gay, so it's inappropriate.

You know, it's inappropriate to make disparaging comments about anyone who is gay because people really don't know the people around them, whether they are or whether they're not, and it's really none of their business.

However, when that quest for intolerance in this bill leads us to costly and irresponsible ends, I think we must rethink the legislation. At a time when America faces so many challenges, the last thing Congress needs to be doing is finding a way to hand trial lawyers an avalanche of litigation to cash in on. I urge my colleagues to oppose this poorly drafted legislation. Let's go back to the drafting board with this.

Mr. MARK SOUDER, Indiana. 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. SOUDER. 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.

Mr. JIM JORDAN of Ohio. I thank the ranking member.

Madam Chair, I rise today to express my opposition to the so-called Employment Non-Discrimination Act.

Far from actually protecting new workers, this legislation will add confusion and contradictions to title VII's existing protections. We have already heard from speakers who talked about the ``perceived'' sexual orientation language in this bill. And it would violate the traditional bases used to determine protected status, those being an immutable characteristic, a history of economic disenfranchisement and political powerlessness. All of the protected classes that currently exist in title VII meet these standards, while those individuals this legislation seeks to protect do not. The current title VII protections are sufficient to protect our Nation's citizens. Expansion would only lead to confusion and more litigation. The previous Republican speaker talked about this. He talked about the contradiction that exists between sexual rights and religious rights. If this legislation is approved, it will certainly be challenged in court and produce a clash with religious freedom and expression.

And then, finally, two other things I would like to address. ENDA , I believe, has the potential to severely hurt business. Not only will the religious exemption fail to cover nondenominational religious elementary schools, high schools and colleges, but it may, in fact, force employers to violate their personal convictions and hire individuals that they determine may not be in the best interests of their business. Business owners with religious convictions should be free to apply those convictions to their hiring practices.

And I guess I would just close by saying, most importantly in my mind, this legislation, I believe, would undermine the institution of marriage and thereby undermine that key institution in our culture, which I believe in the end ultimately determines the strength of our entire society, and that being the family institution. You think about one of the reasons America is so great is because moms and dads and families sacrifice for the next generation. I believe this legislation has the real potential to undermine the importance of families in our culture and in our society and in our country.

For those reasons, Madam Chair, I would oppose the legislation. I thank the gentleman for yielding.

Mr. TIM WALBERG of Michigan. I thank the ranking member for the opportunity to stand today in strong opposition to the ENDA Act. I use that acronym because I believe it is mistitled, that this is not a nondiscrimination act but rather a discrimination act, a reverse discrimination in many ways. But it certainly doesn't achieve what I think ought to be part of this society because it is a radical transformation of workplace discrimination law that stomps on the rights of private employers, adds new unfunded mandates and opens the judicial gates to a herd of endless litigation.

Pitting a newly protected class of individuals based on sexual orientation against our longstanding foundation of religious liberty will force job makers to walk a legal tightrope over which law to follow and which law to violate.

A business with as few as 15 employees will be slammed as new unfunded Federal mandates will provide additional protections for some employees, protections that may conflict with the ability of other employees to freely express their personal and religious convictions, again, without attempt to discriminate or treat wrongly. In fact, this legislation is so poorly written and broad, it will immediately serve as another way for trial lawyers to make a quick buck at the expense of small business owners. More lawsuits against jobs creators in my home State of Michigan, especially with recently passed tax increases, are the last thing employers in south central Michigan need to grow, prosper and thrive in a competitive environment.

ENDA is a fundamental departure from the longstanding principles of religious liberty as well, principles our country was founded upon. In fact, this will directly discriminate against people of traditional values and long-held faith principles. Rather than reducing discrimination, this legislation will instead reduce religious freedom and increase litigation.

The Founders of this great democratic Republic would invariably run afoul of this legislation if they were alive today. If you want to make a stand in favor of increasing lawsuits and penalizing small business owners at the benefit of trial lawyers, then by all means support this bill. If you want to chill the exercise of personal religious freedom, support this bill.

Madam Chairman, I, for one, am choosing to stand for the basic principle of religious freedom and nondiscrimination. I urge my colleagues to vote ``no.''

Mr. JOE PITTS, of Pennsylvania. Madam Chairman, I rise in opposition to this ENDA bill. This bill, if signed into law, will have serious long-term implications on one of our most basic and treasured institutions, marriage. A Federal ENDA will provide activist judges with the legal ammunition to move toward the legalization of same-sex marriage. In fact, State ENDA laws are already being used by activist judges to impose gay marriage and civil unions on States.

One example is the landmark decision by the Massachusetts Supreme Court which determined that there was ``no rational basis for the denial of marriage to same-sex couples.'' And this decision used the State ENDA laws in their argument. Another example took place in Vermont where the court ordered the State legislature to pass either a same-sex marriage or civil union law. Again, this case referenced existing State ENDA legislation. Another example is the New Jersey Supreme Court, which gave the State legislature 6 months to either pass a same-sex marriage law or civil union law, and the court cited New Jersey ENDA laws in defense of this ruling.

Although ENDA is bad legislation on its face, more importantly, it is just one component of a larger strategy. An editorial in an activist publication recently compared this approach to building a house. It explains that hate crimes legislation is the foundation, ENDA is one of the walls, civil unions is the roof structure, and marriage is the shingles.

The author states, ``When all the various above issues have been resolved, think of all the money that would be freed up to focus on marriage. We can lobby the President and Congress on repealing DOMA, while targeting the weakest States to repeal their one man-one woman amendments.''

The strategy as laid out above is clear. ENDA is merely a building block for efforts to overturn traditional marriage laws and to impose same-sex marriage on States. I urge you to protect traditional marriage and oppose H.R. 3685.

Mr. JOE PITTS. Madam Chairman, I rise in opposition to this ENDA bill. This bill, if signed into law, will have serious long-term implications on one of our most basic and treasured institutions, marriage. A Federal ENDA will provide activist judges with the legal ammunition to move toward the legalization of same-sex marriage. In fact, State ENDA laws are already being used by activist judges to impose gay marriage and civil unions on States.

Mr. ROY BLUNT of Missouri. Madam Chairman, I thank the gentleman for yielding.

Madam Chairman, I am in opposition to the bill. It goes without saying that the authors of our Nation's founding document understood better than most that freedom to practice one's religion represents one of the most fundamental, most inalienable rights bestowed on us. It was, after all, the reason that many came to America, the reason that many fought to found America. The Founders made sure to include the free exercise of religion among the first rights they included in the Constitution.

While the Founders saw the Constitution as a means of ensuring religious freedom and that that be protected at all levels, this bill, innocently enough, named the Employment Non-Discrimination Act, would actually have the effect of rolling back these protections, depending on where you happen to work. Perhaps even worse, it deliberately sets out to create a constitutional conflict between one's right to religious freedom and another's right to sue you for practicing it.

Madam Chairman, the tension this bill could create is not difficult to foresee in practice. For instance, if you chose to keep a Bible at your work station or perhaps even display in your cubicle a verse you found particularly meaningful, the legal question is simple created by this legislation: Can one or more of your coworkers seeing that passage, seeing that Bible, understanding there are passages there about homosexuality, bring suit against you and your employer on the grounds that mere presence of religious symbols constitutes a ``hostile workplace'' in which they are being forced to work?

The answer, it seems to me, depends more on where you work than whether or not the Bible's position on your desk is offensive. Employees, for example, at Southwest Baptist University, where I was the president before I came to Congress, would be exempt from the standards of this measure because they have a relationship with a specific denomination. But employees of either a Christian bookstore or a Muslim bookstore would be granted no such dispensation, potentially being forced to choose between upholding the faith positions upon which they are based and on which they acquire customers and complying with a law that says the free exercise of religion can be abrogated by a whim of Congress. This is the wrong decision for us to expect them to make. We are told, however, that any of the legal questions here will be decided and settled in court. The very reason the Constitution established this exercise of religion as the first of all the amendments is so these issues would not have to be settled in court.

There is really no reason here to create a new protected class. This bill puts this newly protected freedom on a collision course with the oldest of all the protected freedoms, the freedom of religion. The inevitable upshot of pitting two classes of people against each other, one protected by the Constitution, the other by Congress, is litigation, and lots of it. We don't need to create more reasons for litigation in the country. We don't need to create differences from court jurisdiction to court jurisdiction. We need to go back and look at this issue again. We need to defeat this bill today. I urge my colleagues to vote ``no.''

Mr. MIKE PENCE of Indiana. Madam Chairman, I thank the gentleman for yielding.

Madam Chairman, I come before the House today in strong opposition to H.R. 3685, the Employment Non-Discrimination Act. However well-intended, the bill extends existing employment discrimination provisions of Federal law like those contained in title VII of the Civil Rights Act to prohibit employment discrimination based on sexual orientation.

Let me be clear. I don't condone discrimination against people for any reason whatsoever. I believe in civility and decency in society. But the problem here is that by extending the reach of Federal law to cover sexual orientation, employment discrimination protections, in effect, can wage war on the free exercise of religion in the workplace. In effect, as has been said already, this sets up something of a constitutional conflict between the right to religious freedom in the workplace and another person's newly created right to sue you for practicing your faith or acknowledging your faith in the workplace. This is, as has been said before, a deeply enshrined tradition in the American experiment, emanating, as it does, out of the first amendment of the Constitution of the United States.

Some examples: Under ENDA , employees around the country who possess religious beliefs that are opposed to homosexual behavior would be forced, in effect, to lay down their rights and convictions at the door. For example, if an employee keeps a Bible in his or her cubicle, if an employee displays a Bible verse on their desk, that employee could be claimed by a homosexual colleague to be creating a hostile work environment because the homosexual employee objects to passages in the Bible relating to homosexuality.

The employer is in a no-win situation as well. Either the employer has to ban employees from having a Bible at the workplace for their break time, or displaying Bible verses, and thereby face a lawsuit under title VII for religious discrimination, or the employer then has to continue to allow it and face a potential lawsuit under ENDA by the homosexual employee. This sets up a constitutional conflict headed for the courts, about which Congress should not involve itself.

Madam Chairman, I strongly oppose the Employment Non-Discrimination Act. We must stand for the right of every American to practice their faith according to the dictates of their conscience, whether it be in the public square or in the workplace. So I oppose the Employment Non-Discrimination Act and urge my colleagues to do likewise.

Mr. SOUDER. 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.

Mr. WELDON of Florida. Madam Chairman, I rise to express my concerns about H.R. 3685, the Employment Non-Discrimination Act (ENDA ). Unfortunately, this bill goes far beyond simply providing protections against discrimination. If that had been the sole purpose of H.R. 3685, the authors would have closely tracked the Civil Rights Act. The fact that they chose not to follow the Civil Rights Act, but instead create a whole new statute belies their true motives. Because H.R. 3685 does not consider the rights of other protected classes by giving them less protection than have already been provided for them under Title VII of the Civil Rights Act, I believe this legislation is unfair and unwise.

Again, as has become the common practice with the new majority, this bill is on the floor with little review, no committee hearings, and little input from religious organizations and employees that will feel the largest impact from this legislation. Having a one-sided piece of legislation rushed to the floor is no way to pass legislation whose implications will be deeply felt by all Americans. This haste to the House floor, fear of constructive criticism, and failure to model this bill after other successful Federal civil rights legislation, is unwise and is plagued with pitfalls.

The Committee summarily rejected amendments to (1) broaden the exemption for religious schools not covered by the definition in H.R. 3685 to make it consistent with Title VII exemptions; (2) strike the vague and confusing ``perceived'' sexual orientation language; (3) prohibit retaliation against employees who may not agree with employer policies relating to this bill on the basis of sincerely held religious beliefs and; (4) remove the provision making it unlawful to condition employment in a State in which a person cannot marry a person of the same sex. One wonders why in the quest to protect one group, the authors of this bill are so willing to infringe and discriminate against the rights of others. In fact, I do not believe it is going too far to say that the authors of this bill are willing to infringe on the consciences of others in their attempt to create new protections.

H.R. 3685 contains a much narrower religious exemption than is provided under Title VII of the Civil Rights Act, which broadly exempts religious corporations, associations, societies, and educational institutions. There is strong evidence to suggest that non-denominational independent religious schools will not be exempt from complying with H.R. 3685 even though they are under Title VII. This issue has been glossed over by the Democratic leaders even though Congress specifically amended the Civil Rights Act in 1972 to forthrightly protect the mission-critical hiring rights of religious organizations.

A significant concern over H.R. 3685 is its inadequate protection for religious employers and those with deeply held religious convictions. Under Title VII, religious corporations, associations, societies and educational institutions are given broad exemptions. H.R. 3685 contains insufficient exemptions for religious organizations and companies with sincerely held religious beliefs. While houses of worship, missions, and some religious schools would be exempt, H.R. 3685's definition of ``religious organizations'' is a two-part test to determine if an educational institution qualifies for an exemption. In light of the broad exemptions provided in Title VII and the successful management of competing protections, why does H.R. 3685 feel it is necessary to subject religious organizations to intrusive snooping of the Federal Government to investigate if the organization is ``religious enough?'' This requirement indeed constitutes an excessive government entanglement with religion in violation of the First Amendment, and it is doubtful that it would survive scrutiny by the Supreme Court.

H.R. 3685 is vaguely drafted to prohibit employers from discriminating against an individual's actual or ``perceived'' sexual orientation or the actual or ``perceived'' sexual orientation of a person with whom the employee associates. Again, someone's ``perceived'' status is not included in any other civil rights legislation, including Title VII, which protects race, color, religion, sex, and national origin. Employers will now be subjected to claims and potential liability based on the highly subjective standard of someone's perception. With this legislation applying to essentially every company in the country with more than 15 employees, exposing employers to the threat of liability based on ``perception'' seems highly unwise and will create a lawyer's bonanza. This will force employers to defend themselves in claims and litigation by having to prove a negative--that they weren't able to perceive someone's sexual orientation. I'm sure this is welcome news for the nation's trial bar who will welcome vague loopholes to create Title VII claims to litigate. We should not open employers up to lawsuits because they were unable to ``perceive'' a person's sexual orientation, but that is what this bill does. This is especially an unfair burden on our small business owners, who will not be able to afford lengthy and costly litigation. This bill allows individuals to file suit, if their claims aren't resolved by the EEOC, for punitive damages up to $300,000.

H.R. 3685 will also needlessly create hostile work environments, as religious employees protected under Title VII will have their right to free religious expression challenged by the new rights created in ENDA for individuals based on their ``actual or perceived sexual orientation.'' The balancing of these two will lead to an impossible balancing test of which law to follow and which to violate.

While I strongly oppose intentional discrimination in the workplace to anyone, H.R. 3685 would favor some classes of citizens over other already protected classes. I cannot support a bill that does not provide adequate and equal protections to religious organizations, especially religious educational institutions that will be forced to act against their consciences if this legislation becomes law.

Mr. PAUL BROUN of Georgia. I thank the gentleman for yielding.

Madam Chairman, the House of Representatives is debating H.R. 3685, the Employment Non-Discrimination Act, today.

As well meaning as the title of this bill sounds, I want my constituents in the 10th Congressional District of Georgia and all Americans to know why this legislation is bad for Georgia and bad for America. Just like the ill-conceived hate crimes legislation that this Democratic majority passed, this bill will increase discrimination, yes, increase, and not decrease it.

I believe in the Constitution of the United States as our Founding Fathers intended. The first amendment to our Constitution expressly protects religious freedom. So while I am opposed to discrimination, I am also opposed to creating special rights and privileges for certain classes, and that is exactly what this bill does. This bill would elevate one person's desire for a particular job over another person's right to practice and honor their religious beliefs.

If H.R. 3685 is signed into law, and I pray that it will not be, it would deny the civil rights of employers, and it would abridge the freedom of association enshrined in our first amendment.

ENDA will force employers, including Christians, Muslims, Jews and people of other faiths to hire individuals that are diametrically opposed to their fundamental belief system. If they stand up for their religious beliefs and refuse to hire those opposed to their faith, they will be sued. In fact, one thing the bill will accomplish is to dramatically increase lawsuits against employers.

Further, while the Democratic majority will argue that religious organizations are exempt, the highly nuanced definition contained in this bill for religious organizations and religious educational institutions is so bad as to make this exemption essentially meaningless. The bill would grant special employment privileges and protected minority status to anyone that defines themselves by their sexual orientation. Further, an employer can be sued for not only making an employment decision based on a person's sexual orientation, but on his perception of their orientation.

Countless individuals and organizations, including Christian and Jewish schools, Christian bookstores and even religious daycare providers will be forced to either hire a homosexual or transgender individual or face prosecution.

This legislation is unnecessary and is unconstitutional. I urge my colleagues on both sides of the aisle to do the right and courageous thing and to vote ``no'' on H.R. 3685.

Mr. SOUDER. 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.

Mr. SOUDER. 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.

Mr. SOUDER. 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.

Mr. SOUDER. Madam Chairman, I yield myself 3 minutes.

I'll reserve the balance of my time.

Mr. SOUDER. 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.

Mr. JORDAN of Ohio. I thank the ranking member.

Madam Chair, I rise today to express my opposition to the so-called Employment Non-Discrimination Act.

For those reasons, Madam Chair, I would oppose the legislation. I thank the gentleman for yielding.