Congressional Record, Volume 153 Issue 172 (Wednesday, November 7, 2007)

[Congressional Record Volume 153, Number 172 (Wednesday, November 7, 2007)]
[House]
[Pages H13228-H13253]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EMPLOYMENT NON-DISCRIMINATION ACT OF 2007

The SPEAKER pro tempore. Pursuant to House Resolution 793 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the consideration of the bill, H.R. 3685.

{time} 1500

In the Committee of the Whole

Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the consideration of the bill
(H.R. 3685) to prohibit employment discrimination on the basis of
sexual orientation, with Mrs. Tauscher in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the rule, the bill is considered read the
first time.
The gentleman from California (Mr. George Miller) and the gentleman
from California (Mr. McKeon) each will control 30 minutes.
The Chair recognizes the gentleman from California (Mr. George
Miller).
Mr. GEORGE MILLER of California. 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.
Mr. McKEON. 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.

[[Page H13229]]

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.
Mr. GEORGE MILLER of California. 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.)
Mr. ANDREWS. 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.

{time} 1515

Mr. McKEON. 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.
Mr. KLINE of Minnesota. I thank my colleague, the gentleman from
California, for yielding the time.
Madam Chair, I rise today in opposition to the Employment Non-
Discrimination Act, H.R. 3685.
As the ranking member of the Health, Employment, Labor and Pension
Subcommittee, I have reviewed this legislation in several different
forms over the last several weeks. I've participated in debates and
conversations that have brought this bill to the

[[Page H13230]]

floor, and I have to report that this legislation is still flawed.
The bill before us is drafted in such a way that it creates confusion
and uncertainty. My colleagues offered a number of amendments to
correct the inherent problems in this bill. Unfortunately, one critical
amendment offered by Mr. Souder removing the word ``perceived'' was not
accepted by the majority. My colleague has already introduced that
point of confusion; I would like to expand on it.
This bill, and I quote, ``prohibits employers from discriminating
against an individual because of an individual's actual or perceived
sexual orientation.'' What does that mean, ``perceived sexual
orientation''? We do not know because the bill fails to provide a
definition. This raises a number of practical and legal concerns. The
term ``perceived'' is overly broad, vague, and will inevitably lead to
increased litigation, lots of increased litigation.
We cannot abdicate our constitutional duty by knowingly creating a
law that is so vague that the courts must necessarily determine a
definition. This is, frankly, a trial lawyer's dream. I would point out
that in the course of our hearings one of our colleagues did express
faith in ``Attorney World'' to clarify this issue. Well, it is kind of
funny; I just don't think that's a theme park that we want to visit.
Employers may have difficulty in identifying noninherent
characteristics of a person but could still be liable. Under the
statute, employers would be accountable to prove that they did not make
an employment decision based on either their own perception of an
individual's sexual orientation or on that person's perception of
themselves. I can see why ``Attorney World'' could be called upon here.
Employers would find themselves in the unenviable position of defending
themselves in lawsuits by proving a negative, that they did not
perceive the individual to be part of a newly protected class.
Further, the term ``perceived'' does not appear in any other civil
rights legislation. Let me be clear, we are not talking about the
definition of gays, lesbians and bisexuals; we are talking about those
individuals that may be ``perceived'' to be such. The Civil Rights Act
protects individuals on the basis of race, color, religion, sex or
national origin. Nowhere do we see the term ``perceived.''
Madam Chair, those who favor this bill presented on the floor today
are motivated only by the end goals of this legislation and are failing
to recognize the difficulty presented by vague terms and loose
definitions. We are left with a bill that is filled with confusion and
uncertainty.
I would ask that my colleagues carefully consider the inherent
problems in enforcement of this legislation and vote against H.R. 3685.
Mr. GEORGE MILLER of California. Madam Chair, I yield 3 minutes to
the gentleman from Massachusetts (Mr. Frank), one of the pioneers of
this legislation.
Mr. FRANK of Massachusetts. 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.
Mr. McKEON. I am happy now to yield 3 minutes to a member of the
committee, the gentleman from Indiana (Mr. Souder).
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. GEORGE MILLER of California. I yield 1\1/2\ minutes to the
gentlewoman from California (Ms. Woolsey).
Ms. WOOLSEY. Madam Chairwoman, I rise in support of H.R. 3685.
Before I came to Congress, I was a human resources executive, and
even then, during the 1970s, my company had a policy that prohibited
discrimination based on sexual orientation. It

[[Page H13231]]

boggles my mind that it has taken Congress this long to even try to
catch up.
I acknowledge that today's bill is a good start, but it is just a
beginning. Many of my constituents want this legislation to include
provisions that were in the original version of the bill and in the
amendment that Representative Baldwin will introduce later today.
I share the concern that the legislation before us does not protect
the transgendered people. Transgendered people are particularly subject
to workplace discrimination, and nearly one-half of all transgendered
people have reported employment discrimination at some point in their
lives.
My home State of California is one of a dozen States which already
provide this basic liberty, freedom from discrimination based on gender
identity. We have done so because we recognize that transgendered
people, like all people, deserve protection.
Today's bill is not perfect, but please know that today and every day
I commit to working with my colleagues to pass this bill and to keep up
the fight to expand protection for all peoples.
Mr. McKEON. I'm happy to yield 2 minutes to the gentleman from Ohio,
Jim Jordan.
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.
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. GEORGE MILLER of California. I yield 2 minutes to the gentlewoman
from Ohio (Ms. Pryce).
Ms. PRYCE of Ohio. Madam Chair, I thank the gentleman for yielding.
For more than two centuries, this country has advertised itself as a
land of opportunity, of capitalism and free markets, of rugged
individualism, where economic success awaited anybody who was willing
to play by the rules and work hard. We pride ourselves as a Nation that
doesn't necessarily guarantee equality and economic success, but
promises equality and opportunity for all Americans. Yet today, these
doors of opportunity aren't open for all Americans.
Gay Americans currently hold the dubious distinction of being the
only segment of our workforce that can be overtly denied an opportunity
to contribute to our economy and to earn a living.
Madam Chair, corporate America has never been widely identified as a
vanguard for social change, but in the case of ensuring opportunity for
gay Americans, the private sector is way ahead of the Federal law by
leaps and bounds.

{time} 1530

At present, 90 percent of American Fortune 500 companies have
policies in place similar to what would be required under ENDA. They do
it out of a sense of fairness, but also because it makes financial
sense. Their bottom line is enhanced when they can attract talented and
productive workers, men or women, gay or straight, that can contribute
to the company's success without fear of recrimination or workplace
reprisal. The ability to apply oneself, work hard and succeed has been
the American Dream. This quintessential American right to pursue that
dream should not be abridged. It should not be abrogated. Rather, it
should be protected by the very government that has flourished for more
than two centuries because of that dream.
Madam Chairman, the concept of ENDA, the fundamental American right
to earn a living, should be a principle around which everyone in this
Chamber, regardless of party or ideology, should be eager to embrace.
Mr. McKEON. I am happy now to yield 3 minutes to the gentleman from
Michigan, a member of the committee, Representative Walberg.
Mr. WALBERG. 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. GEORGE MILLER of California. I yield 1\1/2\ minutes to the
gentleman from Georgia (Mr. Bishop).
Mr. BISHOP of Georgia. Madam Chairman, as one who has suffered the
stigma and painful effects of state-enforced legal discrimination based
on my race for the first 20 of my 60 years, and having spent all of my
professional

[[Page H13232]]

life as an attorney and as an elected official fighting to eradicate
unlawful discrimination based on race, creed, color, religion, gender,
age, disability or national origin, and based on my study and
understanding of the life and teachings of Jesus Christ, I cannot
condone discrimination in employment based on sexual orientation.
The only appropriate consideration in employment should be the
willingness and the ability to perform the job. Sexual orientation,
unless it adversely affects job performance, is a private matter and
should not be a basis for legal discrimination with the possible
exception of the armed services and religious organizations.
Accordingly, after prayerful consideration, I must therefore support
H.R. 3685, the Employment Non-Discrimination Act. I urge my colleagues
to do the same.
Mr. KLINE of Minnesota. Madam Chairman, I am very pleased now to
yield 3 minutes to our colleague from Texas, a former appellate judge,
Mr. Gohmert.
Mr. GOHMERT. Madam Chairman, my time is short. I'll get right to some
of these issues. I just have a copy of the bill here.
Under the definition of ``religious organization,'' it actually
excludes by definition schools, institutions that have been started by
churches in which they set up their own boards, because it requires
that the institution has to be in whole or in substantial part
controlled, managed, owned or supported by the religion. So free-
standing educational institutions, bookstores, things like that, would
be opened up. Because there is so much language, I think while the Boy
Scouts felt they were safe by the past litigation, but this opens up
that whole new can of worms and we can expect more litigation against
the Boy Scouts.
To add in some of these things like, you can bring a lawsuit for
discrimination if you don't like your conditions. I had one lawsuit
that went nowhere because a woman claimed she was moved from working on
copper to working on aluminum and that was an insult. Under this,
that's a legitimate lawsuit if you have manifested, acted or had people
perceive you in such a way that they think you may be homosexual.
What this does is it invites people to come apply for a job, and if
they feel like they may not get a job, make utterances like, well, you
think I'm gay, that's why, and they will have a lawsuit. I can
guarantee you, many lawyers will encourage their clients, the
employers, to pay something just to make it go away.
Training programs are listed. If you don't get the seminar, then you
can go in and say, you didn't give me that trip because you think I'm
gay. There may be a lawsuit there. In fact, you could, and lawyers in
some circumstances, I would say most circumstances, will say, yeah, you
ought to settle with these guys because they can take you to the
cleaners.
There is a provision, though, here. Isn't it nice, we have a
provision in here that says States shall not be immune under the 11th
amendment. This legislation is just going to set aside an amendment to
the Constitution legislatively. My goodness. That's pretty bold. Pretty
bold. Then we get down to what the real issue may be here, attorneys'
fees on page 18. You're getting attorneys' fees. All the tort reform
that occurred on med mal, this will bring litigation many times over if
this becomes law. But the good news for the United States is, we have a
provision in here, the United States will not be subject to punitive
damages. Don't have a provision like that for States and for employers.
So look out.
What this Congress is now attempting to dictate is which religious
beliefs and moral beliefs the majority believes are okay and which
religious beliefs it feels are not okay. This will actually encourage
people, whether they are gay or not, to flaunt or manifest what may be
perceived to be characterizations to help the lawyers.
Mr. GEORGE MILLER of California. I yield 2 minutes to the gentleman
from Illinois (Mr. Emanuel).
Mr. EMANUEL. Madam Chairman, more than 40 years ago, this House stood
up in the name of America and did the right thing and passed sweeping
civil rights legislation to protect men and women of all races from
discrimination. By widening the circle of freedom to include those who
stood outside its embrace, America strengthened the character of its
democracy.
And that is exactly what we are doing today with this vote. The Civil
Rights Act of 1964 has had a profound impact on our Nation. But the
work to create a more just, equal Nation that began decades ago is
unfinished. This morning, in 30 States across this country, millions of
gay and lesbian Americans went to work knowing full well that they
could be fired simply because of their sexual orientation. Their job
performance would have nothing to do with their being fired. In too
many places simply being gay can cost you your job.
We should all be able to agree that this type of discrimination is
inconsistent with American values. But for too many gay and lesbian
Americans, it is a reality. This Congress has a duty to make this form
of discrimination a thing of the past. We should be gratified by the
fact that many American employers already do the right thing and
protect the rights of their workers. Many Fortune 500 companies take
these type of policies. For those who say the private sector should be
a guiding light for government, well, here is your chance to prove it.
Some employers have failed to protect their workers, though, so this
Congress has been left with the duty to make sure our values are
represented in our laws. The Employment Non-Discrimination Act offers
basic protections that everyone enjoys and takes for granted, except
gays and lesbians, and this law allows it to be true for them. But more
importantly, this bill is yet another important step forward in
ensuring that justice and genuine equality for every American is the
law of the land.
Today, I hope my colleagues will join us to pass this critical
legislation and continue this country's long-running commitment to
eliminate discrimination in all its forms.
Mr. KLINE of Minnesota. Madam Chairman, I am very pleased now to
yield 2\1/2\ minutes to the gentleman from Pennsylvania (Mr. Pitts).
Mr. 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.
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. GEORGE MILLER of California. 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.

[[Page H13233]]

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.)
Mrs. MALONEY of New York. Madam Chairman, I rise in strong support of
this bill, and I urge my colleagues to help make history today by
taking this important step forward.
Madam Chairman, I rise in strong support of this bill.
I urge my colleagues to help make history today by taking this
important step towards ensuring that discrimination based on sexual
orientation will not be tolerated in the United States of America.
In the year 2007, it is legal in 30 states to fire someone simply
because he or she is gay, lesbian, or bisexual.
Hardworking, tax-paying Americans shouldn't have to live with the
constant, legitimate fear they could lose their jobs. No one should be
discriminated against because of his or her sexual orientation or
perceived sexual orientation.
This bill will also lay the groundwork to provide sorely needed
protections in the future to countless more Americans who need and
deserve them.
History has shown that progress in the struggle for civil rights has
been hard fought and incremental.
Most of our greatest legislative victories have only been achieved
step by step.
While the measure before us today is by no means complete or
definitive, I believe that the passage of this measure today will lay
the foundation to provide additional protections in the future for the
entire LGBT community.
So while I deeply regret that transgender Americans are not protected
by this bill, I nonetheless urge my distinguished colleagues to support
it. I do so with the knowledge and the determination that we will be
back to continue to press the fight for all Americans to live free from
discrimination.
Mr. GEORGE MILLER of California. I yield 1 minute to the gentleman
from Minnesota (Mr. Ellison).
Mr. ELLISON. Madam Chairman, today is a very proud day for me. I am
proud to be an American today because when this ENDA bill passes, what
we will be doing is affirming traditional values, traditional values
like tolerance, traditional values like minding your own business,
traditional values like allowing fellow Americans to rise to the full
measure of their ability, traditional values, values that have made
this country endure and pass the test of time.
Opportunity and traditional values is what this ENDA bill is all
about. This bill has nothing to do with the institution of marriage.
This bill is about giving opportunity to fellow Americans so that we
can reap the full benefit, the talent, the creativity, this hardworking
ethic of both gay and lesbian and all Americans. All.
This bill today makes me proud to be an American and makes me very,
very happy to vote for it, and I do hope all of our Members do.
Mr. KLINE of Minnesota. Madam Chairman, I am very pleased now to
yield 4 minutes to the Republican whip, the distinguished gentleman
from Missouri (Mr. Blunt).

{time} 1545

Mr. BLUNT. 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. GEORGE MILLER of California. Madam Chairman, I reserve the
balance of my time.
Mr. KLINE of Minnesota. Madam Chairman, I yield 2\1/2\ minutes to my
friend, the gentleman from Indiana (Mr. Pence).
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. 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

[[Page H13234]]

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. GEORGE MILLER of California. Madam Chairman, I yield 30 seconds
to the gentleman from New Jersey (Mr. Andrews).
Mr. ANDREWS. 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.
Mr. GEORGE MILLER of California. I yield 1 minute to the gentlewoman
from Wisconsin (Ms. Moore).
Ms. MOORE of Wisconsin. Madam Chairman, the opponents of H.R. 3685
have asked the question: What does perceived sexual orientation mean?
It's when folks proclaim to have some sort of psychic ability to know
who's gay. They have so-called ``gay-dar,'' so that a man who perhaps
is slightly built or a woman like myself who has a deep voice is
perceived to be homosexual and they could be discriminated against in
the workplace.
I can tell you that hundreds of thousands of school children will
pass through these Chambers in the years to come, and as the guides in
the visitors bureau talk about the history of this Chamber, this will
be a signature moment, and I want to be identified as one of the people
who stood up to the last vestige of discrimination in our country.
Mr. KLINE of Minnesota. Madam Chairman, I am pleased now to yield
1\1/2\ minutes to my friend, the gentleman from Indiana (Mr. Souder).
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.
____

[From The Advocate, Apr. 14, 1998]

Do We Need These Laws?--Gay Rights--Are We Really Asking for Special
Rights?

(By Andrew Sullivan)

Before I make myself irreparably unpopular, I might as well
start with a concession. Almost all the arguments the
fundamentalist right uses against gay ``special rights'' are
phony ones. If there's legal protection for Blacks, Whites,
Jews, Latinos, women, the disabled, and now men in the
workplace, then it's hard to see why homosexuals should be
excluded.
It's also true that such laws would ban discrimination
against straights as well as gays, and so they target no
single group for ``special'' protection. Nevertheless,
there's a reason the special rights rhetoric works, and that
is because it contains a germ of truth. However evenhanded
antidiscrimination laws are in principle, in practice they're
designed to protect the oppressed. So while the laws pretend
to ban discrimination on the neutral grounds of sex, race,
ethnicity, or disability, they really exist to protect women,
Blacks, Latinos, the disabled, and so on. They are laws that
create a class of victims and a battery of lawyers and
lobbyists to protect them.
The real question, then, is this: Are gay people generally
victims in employment? Have we historically been
systematically barred from jobs in the same way that, say,
women, Blacks, and the disabled have? And is a remedy
therefore necessary? My own view is that, while there are
some particular cases of discrimination against homosexuals,
for the most part getting and keeping jobs is hardly the most
pressing issue we face. Aided by our talents, by the ability
of each generation to avoid handing on poverty to the next,
and by the two-edged weapon of the closet, we have, by and
large, avoided becoming economic victims. Even in those
states where job-protection laws have been enacted, sexual
orientation cases have made up a minuscule proportion of the
whole caseload.
Most people--gay and straight--know this to be true; and so
they sense that the push for gay employment rights is
unconvincing and whiny. I think they're right. The truth is,
most gay people are not victims, at least not in the economic
sense. We may not be much richer than most Americans, but
there's little evidence that we are much poorer. Despite
intense psychological, social, and cultural hostility, we
have managed to fare pretty well economically in the past few
generations. Instead of continually whining that we need job
protection, we should be touting our economic achievements,
defending the free market that makes them possible, investing
our resources in our churches and charities and social
institutions, and politically focusing on the areas where we

[[Page H13235]]

clearly are discriminated against by our own government.
The problems of gay and lesbian Americans are not, after
all, systematic exclusion from employment. They are (to name
a few off the top of my head): a recourse to the closet, a
lack of self-esteem, an inability to form lasting
relationships, the threat of another epidemic, exclusion from
our own churches, and our own government's denial of basic
rights, such as marriage, immigration, and military service.
In this sense, employment discrimination is a red herring.
National gay rights groups love it because they are part of
the lobbyist-lawyer nexus that will gain from it and because
their polls tell them it's the least objectionable of our
aims. But anyone could tell them it's the least objectionable
because it's the least relevant.
Of course, we're told that until we're protected from
discrimination in employment, we'll never be able to come out
of the closet and effect the deeper changes we all want. But
this is more victim-mongering. Who says gay people can't risk
something for their own integrity? Who says a civil rights
revolution can only occur when every single protection is
already in place? If African-Americans in the 1960s had
waited for such a moment, there would still be segregation in
Alabama.
Our national leaders should spend less time making excuses
for us and more time challenging us to risk our own lives
and, yes, if necessary, jobs to come out and make a
difference for the next generation. An ``equal rights''
rather than ``special rights'' agenda would focus on those
areas in which gay people really are discriminated against.
After all, have you heard any fundamentalist ``special
rights'' rhetoric in the marriage debate? Or in the military
battle? Not a squeak. What you hear instead is a revealing
mumble of bigotry in opposition. And in these areas of clear
government discrimination, we stand on firm, moral ground
instead of the muddy bog of interest-group politics. In an
equal-rights politics, we reverse the self-defeating logic of
victim culture. We are proud and proactive instead of
defensive and cowed. And we stop framing a movement around
the tired 1970s mantra of ``what we want'' and start building
one around the 1990s vision of ``who we actually want to
be.''

Mr. GEORGE MILLER of California. 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).
Mrs. DAVIS of California. Madam Chairman, I rise in support, but I am
sorry we are not debating a more inclusive gender identity bill today,
which I would have supported, and let me tell you why.
Employment discrimination strikes at a fundamental American value,
the right of each individual to do his or her job without facing unfair
discrimination. Transgendered people are among the most marginalized
and vulnerable groups within the LGBT community.
I worked with a nationally known landscape architect as a member of
the San Diego School Board that San Diegans know today as Vicki
Estrada. Vicki Estrada spent the first 50 years of her life as Steve
Estrada. Soon after Steve became Vicki, she was assured by a leader
within the California Department of Transportation, where Vicki worked
as a contractor, that she would be treated no differently.
Vicki had only a few problems with her transition, for two reasons:
She had an internal advocate and the comprehensive protection of
California State law. Others, Madam Chairman, are not so lucky, which
is why it is so important for us to provide inclusive Federal
protections.
I urge my colleagues to join me in continued support of the entire
LGBT community, and I also urge them to join me in supporting this
bill.
Mr. KLINE of Minnesota. Madam Chairman, for the purpose of making a
unanimous consent request, I yield to the gentleman from Connecticut
(Mr. Shays).
(Mr. SHAYS asked and was given permission to revise and extend his
remarks.)
Mr. SHAYS. Madam Chairman, I rise in strong support of this
legislation.
Madam Chairman, the Employment Non-Discrimination Act (or ENDA) is a
common-sense solution to a very serious problem in the workplace. It:
Prohibits employers from making decisions about hiring, firing,
promoting or compensating an employee based on sexual orientation;
Makes clear that preferential treatment and quotas are strictly
prohibited, and that no claims will be permitted based on statistics
about gays and lesbians in the workforce.
Until the 109th Congress, ENDA had been reintroduced in every
Congress since 1994.
Our staff members' sexual orientation is no business of ours, and is
irrelevant to their ability to perform the job.
One frequent objection to ENDA is that it would extend ``special
rights'' to homosexuals.
That is simply not the case.
Gays and lesbians don't want special rights, they want the same as
other Americans: equal protection under the law.
And they deserve no less.
ENDA supporter and former senator Barry Goldwater wrote: There was no
gay exemption in the right to ``life, liberty, and the pursuit of
happiness.'' Job discrimination against gays--or anybody else--is
contrary to each of these founding principles. Anybody who cares about
real moral values understands that this isn't about granting special
rights it's about protecting basic rights.
Paul Allaire, the former Chairman of the Board of Directors for
Xerox, which is headquartered in Stamford, recognized the importance of
non-discrimination policies when he wrote: We view diversity awareness
and acceptance as enablers to increased productivity. We strive to
create an atmosphere where all employees are encouraged to contribute
to their fullest potential. Fear of reprisals on the basis of sexual
orientation only serves to undermine that goal.
When ENDA is passed--a process that may take some time--working
Americans who happen to be gay or lesbian will only have to prove
themselves in the workplace and the employment market on the basis of
their talents and abilities, just like other Americans.
They will be able to do so without fear of dismissal for any reason
unrelated to the workplace.
Mr. GEORGE MILLER of California. Madam Chairman, I yield 1 minute to
the distinguished majority leader, the gentleman from Maryland (Mr.
Hoyer).
Mr. HOYER. Madam Chairman, I thank the gentleman from California, the
chairman of the committee, for yielding the time.
Madam Chairman, America was regaled today by the President of France,
and he talked about America's values. He said that is why the world
loves America, because of its values.
Now, whether all the world loves America's actions all the time is
another question, but they know that one of our cardinal values was
that we believe that all men and women are created equal and endowed by
their creator with certain inalienable rights, and among these are
life, liberty and the pursuit of happiness. No one in America believes
that you can pursue life, liberty and the pursuit of happiness without
the opportunity to have employment.
In America, we have discriminated historically against various groups
of people. Some because of the color of their skin. Some because of
their gender. Some because of their religion. Some because of their
ethnic origin. There have been all sorts of reasons throughout our
history that we have discriminated against people.

{time} 1600

Madam Chairman, for more than 200 years our great Nation has fought
for and advanced the timeless values and ideals that are embodied in
our constitution: fairness, justice and equality under law.
And today through this bipartisan legislation, the Employment Non-
Discrimination Act, we again take a momentous step in breaking down
centuries of rank injustice, unthinking prejudice, and unjustified
discrimination against gay and lesbian Americans.
It could be gays and lesbians, it could be African Americans, it
could be Catholics, it could be Baptists like me. We have all been
discriminated against

[[Page H13236]]

from time to time. It could be a Jew. It could be somebody of any other
arbitrary distinction.
What this country really believes is that we should not discriminate
against anybody. It so happens this bill describes one somebody, but it
really refers to everybody. And it really is saying in this just
Nation, we believe in equal opportunity.
When the Congress passed the Civil Rights Act of 1964, it prohibited
employment discrimination based on race and gender; discrimination that
often was open and far too often regarded as acceptable.
Frankly, my colleagues, as we sit here in this Chamber, hopefully all
435 of us believe that if we had lived in another time a half a century
ago or perhaps a century ago, we would have even then thought it was
wrong to discriminate against somebody because of the color of their
skin. But we know that too many of our predecessors voted to allow and
to further discrimination against people because of their color.
I presume that some of those looked back after their service in this
body maybe 10 or 20 years later and said, I am historically sorry that
I cast that discriminatory vote. I hope that none of my colleagues find
themselves in that place today or tomorrow, and tomorrow or 10 years
from now.
We have expanded the scope of the law's protection to prohibit
employment discrimination based on religion, color, national origin,
and disability. Today, through this historic civil rights legislation,
we would simply add sexual orientation as a protected class, because
even in 2007, there is little doubt that gay and lesbian Americans are
too often the object of discrimination, not because of their actions
but because of who they are. America believes that's wrong. That's what
President Sarkozy was saying today.
Madam Chairman, let us be clear. This legislation is consistent with
our values, our ideals, and America's long history of social progress.
Thus, the question before us today is not only whether we will choose
to do the right thing and pass this bill, but whether we will choose to
stand on the right side of history; saying to some of our fellow
citizens yes, you may be different than we are, but you are entitled by
our Constitution and by our God and by our values to equal treatment
under law.
This legislation, in fact, is the logical extension of the law in
some 20 States that prohibit employment discrimination based on sexual
orientation. I should note that the Federal Government, we have taken
that action. All the people who work for us, we bar discrimination
against them based upon sexual orientation.
Madam Chairman, as the lead House sponsor of the landmark Americans
with Disabilities Act, I harbor no illusions that this legislation will
topple centuries of prejudice overnight or that we can legislate that
prejudice out of existence. That is probably not possible. But what we
can do, what we ought to in fairness do this day is say that it is not
lawful in the United States to have that prejudice prevent the pursuit
of happiness and the enjoyment of opportunities offered by this great,
fair and just Nation.
I urge my colleagues to stand with great pride, to vote against
discrimination in this great, just land we call America.
Mr. KLINE of Minnesota. Madam Chairman, I reserve the balance of my
time.
Mr. GEORGE MILLER of California. Madam Chairman, I yield 1 minute to
the gentleman from Virginia (Mr. Moran).
Mr. MORAN of Virginia. Madam Chairman, the function of this Congress
is to answer the question: Who are we? And one of the most defining
characteristics of who we are is that we are a meritocracy. That is the
reason why we are as strong and as wealthy and as influential as we are
all over the globe. People come from all parts of the globe to America
because they know that they will be judged here on the basis of their
goodness as a member of society and their ability as a contributor to
our economy. That's all this legislation does.
The people that it is directed to have no more control over their
sexual orientation than the color of their skin. All we are saying is
that you will be judged on your ability to contribute, not on any other
artificial distinction.
As a sponsor of ENDA, I would have favored the further amendment by
Congresswoman Baldwin, but the fact is that this is a civil rights
struggle, and struggles take time. But this measure today is a powerful
sign of enlightenment and progressive change in America. It is defining
legislation. I urge all my colleagues to vote for it.
Mr. GEORGE MILLER of California. Madam Chairman, I yield 1\1/2\
minutes to the gentleman from South Carolina (Mr. Clyburn), the
distinguished majority whip in the House.
Mr. CLYBURN. Thank you, Mr. Chairman, for yielding me time.
Madam Chairman, I rise in strong support of the Employment Non-
Discrimination Act. As a former civil rights activist in South Carolina
who has been incarcerated a number of times for advocating equal
treatment for all, I have come to find that our Nation's civil rights
issues are in fact human rights issues.
Whether you are talking about allowing people of color to sit and eat
at lunch counters or about ensuring that gay and lesbian Americans can
freely go to work and earn a living without fear of being discriminated
against, you are talking about basic human rights.
Madam Chairman, before I came to Congress, I spent 18 years as South
Carolina's human affairs commissioner. In that position, I came to find
that bigotry and homophobia are sentiments that should never be allowed
to permeate the American workplace. Such intolerance does nothing but
take us back to a dark moment in our Nation's history that most of us
never want to revisit.
I implore my friends on the other side of the aisle to stop
misconstruing this issue as a marriage issue. This is an employment
issue, not a marriage issue. And this bill does nothing to infringe on
the institution of marriage which I have cherished for more than 46
years.
By passing this bill, Members of the House go on record as wanting to
end discrimination in the workplace and not allowing its ugly face to
persist. I urge my colleagues to bring fairness to the American
workplace and support this important legislation.
Mr. KLINE of Minnesota. Madam Chairman, I continue to reserve.
Mr. GEORGE MILLER of California. 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.)
Mr. INSLEE. Madam Chairman, this bill is about discrimination, but it
is also about economic competition.
Thinking about this bill today, I was thinking about the 1964
University of Washington Huskies football team that went to the Rose
Bowl. They had a slashing, tough, brutal halfback named Dave Kopay, a
boyhood hero of mine. He helped them go to the Rose Bowl. Later on
after he goes to the NFL, we learn he is gay. If the UW hadn't put that
guy in, there are several games they would not have won.
And if software companies don't hire gay software engineers, they
will not be economically competitive with the rest of the world. In
America, let's get one thing real clear: All good athletes play and all
good software engineers engineer and all good workers work. That's the
American way. Let's pass this bill.
Mr. KLINE of Minnesota. Madam Chairman, I continue to reserve.
Mr. GEORGE MILLER of California. I yield 1 minute to the gentleman
from Illinois (Mr. Kirk).
Mr. KIRK. Madam Chairman, if our Constitution stands for anything, it
is the ideal of individual liberty. To defend that liberty, we support
democracy. But underneath both of those key values in the West, we
believe in tolerance for our Federal citizens. Tolerance.
In Nazi Germany, they killed Jews and gypsies; but they also killed
homosexuals. Thanks to us, the Nazis were defeated by the tolerant
democracies of the West.
Our history is one of expanding tolerance. First, that all white men
are equal; then all men; then all men and women. These are the civil
rights achievements of the 20th century. Now it is our turn to offer
protection for those of a different orientation.

[[Page H13237]]

From the Land of Lincoln, our country is the leader in advancing the
toleration values of the West. This bill is already the law in the Land
of Lincoln; but today, we go forward to make it the law for all.
Mr. ANDREWS. Madam Chairman, I yield 1 minute to the gentleman from
Florida (Mr. Hastings), a distinguished member of the Rules Committee.
Mr. HASTINGS of Florida. I thank the distinguished gentleman for
yielding to me.
Madam Chairman, yesterday in the Rules Committee I commented that
democracies should be about tolerance. Democracies and religions should
be about tolerance.
Today we get an opportunity to manifest our tolerance within the body
politic of this country. And it is an important day, just as 1964 was
an important day for passage of the Civil Rights Act. As one who has
stood in this struggle with brothers and sisters throughout this land
to make this country live up to all of the creeds that are our values,
American values, we cannot nor should we ever permit discrimination in
the workplace or anyplace. It is wrong, it is intolerant, and it is un-
American. I urge my colleagues to support this measure.
Mr. KLINE of Minnesota. Madam Chairman, could I inquire how many
speakers my friend has?
The CHAIRMAN. Each side has 2\1/2\ minutes remaining.
Mr. ANDREWS. Madam Chairman, we have two speakers remaining,
including the Speaker.
Mr. KLINE of Minnesota. Very well, then I will continue to reserve my
time to close.
Mr. ANDREWS. 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).
Mr. LEWIS of Georgia. Madam Chairman, I want to thank my friend for
yielding.
Madam Chairman, I for one fought too long and too hard to end
discrimination based on race and color not to stand up against
discrimination against our gay and lesbian brothers and sisters. During
the 1960s, we broke down those signs that said ``white'' and
``colored.''
Call it what you may, to discriminate against someone because they
are gay is wrong. It is wrong; it is not right. There is not any room
in our society for discrimination. Today, we must take this important
step after more than 30 long years and pass the Employment Non-
Discrimination Act. It is the right thing to do. It is the moral thing
to do.

{time} 1615

Let us do it, not just for this generation, but for generations yet
unborn.
Today, we have an opportunity to bring down those signs. Now is the
time to do what is right, what is fair, what is just. The time is
always right to do right. Let us pass this bill.
Mr. KLINE of Minnesota. Madam Chairman, I yield myself the balance of
our time.
Today, we're considering a truly far-reaching modification to civil
rights policy. There are some here who want this proposal to go even
further, and we've heard that, while many of us believe that it already
goes too far.
The free exercise of religion is fundamental; yet this bill could
infringe upon it. The right of States to define and protect marriage is
fundamental; yet this bill would undermine it. When enacting new
Federal mandates, we should be seeking policies that employers can
successfully implement; yet this bill is vague and subjective and
invites costly litigation.
We heard a discussion earlier about the concerns in employment law
around a hostile work environment and what this newly protected class,
how this would fit into that. It was asked, could an employee have a
quote from the Bible that soundly condemns homosexuality, would that in
itself create a hostile work environment. I would say we do not know
the answer to that question. This is a boon for trial lawyers and court
cases stacked up like cordwood.
Because of these concerns, Madam Chairman, the White House issued a
Statement of Administration Policy indicating that if this bill were to
reach the President's desk, his senior advisers would recommend that it
be vetoed. The administration identified a number of concerns, both on
a constitutional level and with the underlying policy. Unfortunately,
these concerns have not been given the full attention they deserve in
this debate.
The number of amendments has been seriously limited. We have seen an
extraordinary step of putting in the rule a mandatory withdrawal of a
proposed amendment. This deserves a fuller examination.
Republicans were prevented from offering key amendments that would
have highlighted and attempted to correct some of the more glaring
problems which we see in the underlying bill. As a result, Madam Chair,
H.R. 3685 remains fatally flawed.
I oppose the bill and urge my colleagues to join me in voting ``no''
on this overreaching proposal.
Madam Chairman, I yield back the balance of our time.
Mr. ANDREWS. 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.
Ms. PELOSI. Madam Chairman, I thank the gentleman for yielding and I
thank Mr. Andrews of New Jersey for his leadership on this important
issue. He knows, as does the chairman of the full committee, Mr.
Miller, that discrimination has no place in America. Our country is a
great country because we recognized that long ago, but we have more
work to do.
I thank them both for their strong leadership in fighting
discrimination and thank them for, in the case of Mr. Miller, decades
of service and leadership on social justice. I commend Mr. Andrews for
his commitment to protecting the rights of America's workers.
This is truly an historic day. Today, the House of Representatives
will consider and hopefully pass for the first time the Employment Non-
Discrimination Act, or ENDA. As someone who has looked forward to this
day for 20 years that I have served in Congress, it is a joyous
occasion. It simply would not have been possible without the
outstanding leadership and courage of Chairman Barney Frank and of
Congresswoman Tammy Baldwin. Anyone who cares about a country without
discrimination is deeply in debt to Tammy Baldwin and to Barney Frank
for their leadership in this regard.
While ENDA's victory will represent an historic victory, I share the
disappointment of Tammy Baldwin, Barney Frank and others who support
including protection for transgender individuals in ENDA. While I had
hoped that we could have included gender identity, I support final
passage of ENDA because its passage will build momentum for further
advances on gender identity rights and the rights of all Americans.
America is a country that is great and wealthy, but we cannot afford
to squander the talents of any of our citizens, nor should we. We all
benefit if everyone gets a chance to work hard and support their
families. Yet today, in 30 States an American can be denied a job or
fired because they are gay, lesbian, bisexual or transgender. This is
wrong. Working Americans should be judged on one criterion, their job
performance, and not be subjected to prejudice.
Madam Chairman, our history teaches us that progress on civil rights
is never easy. It is often marked by small and difficult steps. We must
take this step today toward the ideal of equality that is both our
heritage and our hope.
I've heard the use of the word ``tolerance'' today, and I respect the
use of that word, but if I may respectfully depart from it and say that
in my community that is blessed with a diverse community, our diversity
is of all kinds: religion, gender identification, religious faith and
the rest. And I always say that the beauty is in the mix. And it's not
that we're tolerant in my district in California in San Francisco; it
is that we have so much respect for the role that each person plays in
our society.
So tolerance, maybe; respect, definitely. But let me also add that it
is the pride that we take in that diversity, and it is the pride that I
take in the gay, lesbian, bisexual and transgender community that
brings me to the floor today to urge a ``yes'' vote on this important
legislation.

[[Page H13238]]

Ms. LINDA T. SANCHEZ of California. Madam Chairman, at the outset,
I'd like to note that I did not vote for this bill in Committee, not
because I don't support its goals--I do--but because I strongly believe
that we could have done better by protecting more people from
discrimination.
That is why I am proud to support the amendment by my colleague from
Wisconsin, that will add a prohibition against gender identity
discrimination. This amendment is needed because protecting transgender
people is the right thing to do. We're talking about a small group of
people, but a group that faces tremendous discrimination and that
deserves to be protected from workplace discrimination just as much as
anybody else.
Now that this bill is out of committee and on the floor, let me be
clear, I will vote for it because it extends a basic right to millions
of Americans. And that right is the right to go to work and earn a
living.
That's all, just the right to support themselves and their families.
It is a right that is so basic that I'm appalled that some in this
Chamber actually oppose this bill.
What is so problematic about protecting Americans from losing their
jobs, not due to job performance, but due to bigotry?
Americans believe that if you work hard and do your job, you should
be rewarded. And Americans believe that this basic principle should
apply across the board.
Poll after poll reveal that an overwhelming majority of Americans
agree someone shouldn't lose a job or be denied a promotion simply for
being gay or lesbian.
Americans also believe that it is already illegal to do so.
Unfortunately, in many states, it isn't. That's why this bill is so
important.
The passage of this bill is just one part of an overall effort to
improve the lives of working Americans. So far this year, the New
Direction Congress has already worked to increase the opportunities
available to working Americans and their families.
We have increased the minimum wage.
We have made college more affordable by increasing Pell Grants and
reducing interest rates on student loans.
We have investigated the Administration's failure to protect workers
on the job, and begun efforts to ensure that the Occupational Safety
and Health Administration and Mine Safety and Health Administration do
their jobs: keep workers safe so they can go home to their families
after a day's work free of injury and disease.
It is wrong to deny someone a job, a raise, or a promotion because of
his or her real or perceived sexual orientation. And it is past time
for Congress to say so.
Ending employment discrimination against gay, lesbian, and bisexual
people by enacting ENDA is such a common sense solution, and so
consistent with the American principles of freedom, justice, and
equality that it's amazing to me that in 2007, we still haven't passed
this bill.
Let's work together to make the ``American Dream'' a reality for
millions of Americans. Let's vote for the Baldwin amendment and pass
this bill.
Ms. ESHOO. Madam Chairman, I rise today to express my strong support
for The Employment Non-Discrimination Act, ENDA. I was an original
cosponsor of this bill when it was first introduced in 1994 and have
supported it ever since.
This legislation is a long time in coming. For years we've had
workplace protections in place for race, religion, gender, national
origin, age, and disability, but nothing to cover sexual orientation.
Surprisingly, in 2007, it's still legal to fire someone based on their
sexual orientation in 30 different States. ENDA will extend Federal
employment discrimination protections to include sexual orientation for
all workers.
This bill will not impose new costs and obligations on employers.
ENDA will not require employers to give benefits to partners of gay,
lesbian, or bisexual employees, although I believe they should. ENDA
will not set ``quotas'' for hiring or provide special rights to a
unique class of citizens. ENDA will simply end one of the last areas of
legal discrimination against Americans in the workplace today.
As introduced in the 110th Congress, this bill originally included
protections for transgendered Americans in their jobs. While the bill
that comes to the Floor today does not include this provision, it is
something I strongly support and will continue to advocate for.
I take pride in being a citizen of a country that promotes tolerance
and equality . . . but we must ensure these founding principles extend
to all American citizens. I believe ENDA is the next step for us to
take on the journey toward full equality for all Americans.
Mr. VAN HOLLEN. Madam Chairman, I rise today in support of H.R. 3685,
the Employment Non-Discrimination Act of 2007. Currently American
workers are not entitled to protection from discrimination in the work
place based upon their sexual orientation. As a result, it is legal to
fire or refuse to hire someone simply because they are gay or lesbian.
That is simply wrong! This country has a rich history of battling
discrimination. Over the years Congress has banned employment
discrimination on the basis of race, color, religion, sex, national
origin, disability and age. However, our work is not done; we must
continue to fight against injustice and extend basic workplace
protection to gays and lesbians.
The American people do not support workplace intolerance. A Gallup
poll in May of this year found that 89 percent of the American people
support equal treatment for gays and lesbians regarding employment
opportunities. The sexual orientation of an employee should not factor
into the determination of one's competence to perform a particular job.
American values are rooted in fairness and opportunities for all, in
basic recognition that employment, free of discrimination, is a basic
civil right, a human right that must be extended without regard to
one's sexual orientation.
My own State of Maryland, in 2001, enacted a law prohibiting
employment discrimination on the basis of sexual orientation. I was
proud then to have worked on its passage through the State legislature.
I am proud today to stand before the House and help pass this bill
through Congress. Legislation to promote fairness in employment for
gays and lesbians at the national level is long overdue. It is time to
take action and extend equality to all Americans.
Mr. LANGEVIN. Madam Chairman, I rise in strong support of H.R. 3685,
the Employment Non-Discrimination Act. This important measure
demonstrates Congress's commitment to combating prejudice and ensures
that Americans will not be denied access to employment because of their
sexual orientation.
Current Federal law prevents employment discrimination on the basis
of race, gender, religion, national origin, or disability. As a person
with a disability, I know how important those Federal protections are
for people who want to contribute to the workforce. Unfortunately, too
many Americans are still able to be fired based on their sexual
orientation. I am proud I come from a State where discrimination based
on sexual orientation is against the law, but in 30 States, a person
may be fired from a job simply for being gay, lesbian, or bisexual. We
need a strong Federal law to protect those Americans and end a practice
that is contrary to the American promise of equality and opportunity
for all.
The Employment Non-Discrimination Act would prohibit employers from
using an individual's sexual orientation as the sole basis for
employment decisions. As previously mentioned, Rhode Island is one of
20 States that have comparable State laws. Similarly, a growing number
of companies are incorporating non-discrimination policies because they
recognize that they should be recruiting and retaining the best
individuals for the job, irrespective of a person's sexual orientation.
However, despite these advances, too many Americans still face
discrimination in the workplace. Today we have the opportunity to make
a stand for civil rights and equality by passing ENDA.
I also want to voice my strong support for an amendment to be offered
by the gentlewoman from Wisconsin, Ms. Baldwin, which would prevent
discrimination based on gender identity. Rhode Island is one of 12
States that protect gender identity in employment, and our experience
has been a positive one. Transgender individuals often have their own
set of challenges in the workplace, and we must ensure that their
rights are protected as well. I am deeply disappointed that the
underlying bill does not include gender identity, especially as I am a
cosponsor of a fully inclusive ENDA. Today, the House of
Representatives is sending a clear message to the Nation that no
American should face discrimination at work or in society, and I think
we are missing an unprecedented opportunity to make the measure as
inclusive as possible. However, if the Baldwin amendment is
unsuccessful, I pledge to work with her and other supporters to see
this important provision enacted into law.
I would like to thank everyone who contributed to developing this
legislation and bringing it to the floor for a historic vote. I urge
all of my colleagues to make a strong stand for equal rights and
support H.R. 3685.
Mr. STARK. Madam Chairman, I rise today in strong support of equal
rights for all people. No job applicant should be discriminated against
because of his or her race, religion, gender, ethnicity, age,
disability, political affiliation--or sexual orientation or gender
identity.
The Employment Non-Discrimination Act (ENDA, H.R. 3685) simply
modernizes existing non-discrimination law to prohibit discriminatory
employment practices on the basis of sexual orientation.
Everyone knows that employment discrimination against people based on
their sexual orientation occurs daily in our country. Many of us know
people who have been the victims of such discrimination. It is wrong
and it should be against the law. I'm only sorry it has taken us so
long to bring this bill forward.
This legislation succeeds in advancing civil rights. However, it
still falls short of what

[[Page H13239]]

needs to be accomplished. By no means is this bill as inclusive as it
should be. It fails to include gender identity as a protected class. I
commend Congresswoman Baldwin for her efforts to include the
transgender community in today's legislation. Had her amendment reached
a vote on the House floor, I would have proudly supported it.
Our Declaration of Independence states that Americans have an
inalienable right to liberty and happiness, neither of which can be
achieved if equal rights are granted to some and not others. Today's
bill continues to leave transgender individuals without equal
protection from discrimination.
I support this bill because it brings the country one step closer to
a prejudice-free workplace, but I implore my colleagues to work toward
legislation that guarantees fair employment practices to all people.
Most of us look back on America's history and bemoan that women and
non-whites had to struggle for rights that should have automatically
been granted to them. If we as a Congress cannot stand against
discrimination for a group of citizens who simply demand the right to
be treated fairly in the workplace, we are no better than past
legislators who opposed a woman's right to vote or the right of African
Americans to sit in the same section of a bus or restaurant as whites.
I urge my colleagues to do what is right and support this legislation.
Mr. HONDA. Madam Chairman, I rise today to support the Employment
Non-Discrimination Act (ENDA), an important step forward in the fight
for civil rights in the United States. It is high time for Congress to
recognize and address the fear of persecution in the workplace
experienced by gay, lesbian, bisexual, and transgender Americans. The
Federal Government is right to follow the lead of 20 progressive states
to extend federal employment protection to the lesbian and gay
community, and I look forward to casting my vote in favor of this bill.
ENDA ensures that American workers will be judged on their ability as
workers instead of allowing ignorance and fear to bar them from
contributing to the success of the Nation and enjoying the unalienable
rights of ``life, liberty, and the pursuit of happiness.''
Sadly, more inclusive language was narrowed to exclude the most
vulnerable, least understood group within the LGBT community,
transgender men and women. I congratulate Representative Baldwin on
offering an amendment to re-insert this wording into the underlying
bill and I proudly support her effort. Although this amendment was
withdrawn, I was prepared to vote in its favor. Despite this
compromise, I support final passage of the bill because I recognize
that the perfect should not be the enemy of the good. I trust in my
colleagues and my leadership that we will not stop the push for civil
rights after consideration of this bill, and I reiterate my dedication
to further expanding protection to transgender men and women.
Finally, I strongly object to the mischaracterization of this bill as
anti-religious. Gay, lesbian, and straight people alike, strongly
religious and strongly secular, support this important step in the
struggle for civil rights. Yet, the authors of the bill have wisely
sought a compromise for those who still hold a religious objection to
these civil rights protections by crafting exemptions for religious
organizations and schools.
I am proud to vote for this bill and urge my colleagues to do the
same.
Ms. DeGETTE. Madam Chairman, I am a proud cosponsor of the original
Employment Non-Discrimination Act (ENDA) that included gender identity.
I will support final passage of this legislation today because
passing this bill is important and extending these protections is the
right thing to do.
But I will cast my vote with deep regret the trangendered community
has been denied the protections offered to gays and lesbians in this
bill.
I did not support its removal from the overall legislation and am
extremely disappointed that it will not be included when the House
passes H.R. 3685.
I have cosponsored ENDA every session since I was first elected to
Congress. I have strongly supported this legislation because it is an
important step forward in eliminating discrimination against gay
people.
I believe that all citizens should be treated equally in this
country, regardless of their sexual orientation. Firing someone from
their job, or evicting them from their home simply because of their
sexual orientation, is immoral and undemocratic.
All members of the gay, lesbian, bisexual and transgender community
should be protected from employment discrimination, and by not
including gender identity we are essentially abandoning Americans who,
frankly, are among the most discriminated against individuals in this
country.
Mr. RYAN of Wisconsin. Madam Chairman, today, the House will consider
H.R. 3685, the Employment Non-Discrimination Act of 2007. In essence,
the bill would expand the protections of Title VII of the Civil Rights
Act that prohibit discrimination on the basis of color, religion,
national origin and gender to include sexual orientation. As H.R. 3685
has undergone various iterations over the previous months, I have spent
a considerable amount of time weighing the implications this
legislation would have on our society as a whole. My gravest concerns
lie with how religious institutions would be affected. The protections
afforded to these groups by our country's founders have been upheld for
centuries, and I would not support any legislation that would erode
those freedoms.
H.R. 3685, however, provides explicit and concrete exemptions for
religious institutions that are similar to the ones included in Title
VII of the Civil Rights Act. Specifically, religious organizations,
define as ``a religious corporation, association, or society; or a
school, college, university, or other educational institution or
institution,'' are exempted from complying with the requirements of
this law. Effectively, where religious institutions are currently
allowed to make hiring decisions on the basis of religion, this
protection will be extended so these organizations can continue this
practice. In addition, I feel strongly that non-denominational
institutions, that is, religious institutions not affiliated or
supported by a specific denomination, should be included in this
exemption. With passage of the Miller amendment, H.R. 3685 will be
adequately modified so that the hiring practices of non-denominational
institutions are equally protected and will not be affected by the
bill.
Given this, I intend to support the legislation pending before the
House. I believe individuals should be judged based on merit and their
ability to perform the tasks required rather than on perceived
characteristics and unrelated biases.
One of the essential roles of the Federal Government is to protect
the equal rights of individuals. H.R. 3685 is not a bill that grants
special rights to a certain class of people. If this were the case, I
would oppose the bill. This legislation simply protects the equal
rights of individuals from workplace discrimination. Indeed, Congress
is not alone in its attempt to end sexual orientation discrimination in
the workplace. In fact, my home state of Wisconsin has had a very
similar law in place since 1982. The legislation the House will
consider is an extension of this type of protection. Congress has
historically acted to protect workers from discrimination and I believe
H.R. 3685 meets this objective.
Mr. WAXMAN. Madam Chairman, I rise in strong support of the
Employment Non-Discrimination Act, or ENDA. This legislation is long
overdue. Prejudice has no place in the workplace.
Nearly 10 years ago, the Federal Government set a bold example when
President Clinton issued an executive order specifically outlawing
discrimination based on sexual orientation in the federal government.
Today, 22 States, the District of Columbia and more than 180 cities and
counties nationwide have enacted laws prohibiting sexual orientation
discrimination in the workplace. I am proud that my home State of
California and my congressional district in Los Angeles have played a
leading role in the effort to promote understanding, acceptance,
tolerance, and equality for gay Americans.
But congressional leadership is sorely needed to set a national
standard for this fundamental civil rights protection. The health of
our democracy requires that all Americans be entitled to justice. Civil
rights and human rights should not stop at State boundaries.
Like many civil rights battles before it, the fight for gay rights
has been long, arduous, and frustrating. In recent years, we have faced
many setbacks with anti-gay initiatives by President Bush and
Republicans in Congress that serve only to fan the flames of
intolerance and bigotry.
The tide is turning. Earlier this year the Democratic leadership in
the House and Senate achieved victories with hate crimes legislation
that would criminalize attacks against individuals based on their
sexual orientation or gender identity. With the passage of ENDA, we
will push further by making it illegal to fire, refuse to hire, or deny
a promotion to an individual on the basis of sexual orientation.
As an original cosponsor of H.R. 2015, a more comprehensive version
of this legislation, I am disappointed that H.R. 3685 does not protect
against discrimination based on gender identity. I strongly support the
amendment Representative Baldwin will offer to include gender identity
in H.R. 3685 and if that amendment is not adopted, I pledge to work for
an ENDA that includes gender identity.
I look forward to passing this landmark legislation, which is a great
leap forward for equal rights.
Mr. LEVIN. Madam Chairman, I rise in support of the Employment Non-
Discrimination Act.
This day is long overdue. Freedom from discrimination in the
workplace. A simple concept

[[Page H13240]]

really. One should be judged by the quality of their work, not by the
color of their skin, not by their age, not by their disability, and of
course, not by their sexual orientation.
Thirty States continue to permit employers to discriminate against
employees based solely on their sexual orientation. It is vital that we
adopt federal protections to end this unjust discrimination that
affects millions of Americans. The bill before the House today would
extend the basic protections of the Civil Rights Act by prohibiting
employment discrimination based on sexual orientation.
For all of my life, this country has been grappling with the issue of
how to extend fundamental rights to every individual in our society. We
all know the profound impact of the Civil Rights Act of 1964, which
made it illegal to fire, refuse to hire, deny promotions or otherwise
discriminate against employees based on race. While the Civil Rights
Act was controversial in the years leading up to its enactment, one of
our country's proudest moments was the day President Johnson signed it
into law.
I very much regret that the Bush Administration is threatening to
veto this legislation. Back in 1990, the first President Bush signed
the landmark Americans with Disabilities Act, which barred workplace
discrimination against qualified individuals with disabilities. It is
unfortunate that the current Bush Administration has chosen not to
build on this progress.
But today is about progress. Today we stand up for gay Americans and
say it is long overdue that you have the protections needed in our
Nation's employment laws. Tomorrow we continue to educate and outreach
around the need to also prohibit employment discrimination on the basis
of gender identity.
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. BLUMENAUER. Madam Chairman, today I vote in favor of H.R. 3685,
the Employment Non-Discrimination Act (ENDA) because all Americans
deserve to be protected from discrimination in the workplace. As a new
legislator, one of the first hearings I attended in Congress was on
this very bill and while I am pleased to finally vote on it, I'm sad it
took twelve years for this day to come.
I see today's vote as part of our nation's struggle to achieve civil
rights--an effort to make our country more equitable, more just, and
more fair, so that every child has the opportunity to pursue their
dreams in a safe and accepting environment. As I look back on how we
have achieved civil rights legislation, I am struck that each
accomplishment was both monumental and yet disappointingly incomplete.
I am saddened that the gender identity provision did not pass this time
around, but remain committed to resolving this inequity in the future.
I appreciate the advocates in my district, and across the country,
who have worked tirelessly to bring about today's successful passage of
ENDA. I am confident we will continue these efforts to keep these
issues at the forefront of our agenda. Together, we can put an end to
the ugliness of intolerance and bigotry.
Ms. HIRONO. Madam Chairman, I rise today in support of H.R. 3865, the
Employment Non-Discrimination Act of 2007 (ENDA), as well as in support
of the amendment to the bill offered by Congresswoman Tammy Baldwin.
I would like to thank the chief sponsor .of the bill, Congressman
Barney Frank, and George Miller, Chairman of the Education and Labor
Committee, for their leadership. This is truly a historic moment, which
was largely made possible by their commitment to the democratic ideals
of equality and fairness.
As an original cosponsor of the original ENDA, H.R. 2015, I am glad
to be able to have this opportunity to debate the Baldwin amendment to
include anti-discrimination protections for transgender individuals. It
is unfortunate that political realities made it difficult to bring an
inclusive ENDA to the floor today in the first place.
However, I stand with Congresswoman Baldwin in her courageous fight
to provide for the inclusion of a group that is probably the most in
need of workplace protections. I look forward to continuing to work
with her and our

[[Page H13241]]

likeminded colleagues in any effort to build upon the momentum of H.R.
3865 and provide employment protections for gender identity through
future educational and legislative initiatives.
The Civil Rights Act of 1964 prohibited employment discrimination
based on race and gender. The scope of protections has expanded since
then to also bar employment discrimination based on religion, color,
and national origin. And while versions of H.R. 3865 have been
introduced in each Congress since 1975, this is the first time it will
be voted on by the U.S. House of Representatives.
H.R. 3865 provides us with a historic opportunity to be able to
respond to the prejudice and discrimination that face millions of
Americans in our workforce. It is at moments like these, this ability
to provide for civil rights progress, that I am truly proud to be a
member of the Democratic majority making freshmen class.
I urge my colleagues to join me in voting for H.R. 3865 and working
toward the inclusion of gender identity in future legislation. Mahalo
(thank you).
The CHAIRMAN. All time for general debate has expired.
Pursuant to the rule, the bill shall be considered read for amendment
under the 5-minute rule.
The text of the bill is as follows:

H.R. 3685

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Employment Non-
Discrimination Act of 2007''.

SEC. 2. PURPOSES.

The purposes of this Act are--
(1) to provide a comprehensive Federal prohibition of
employment discrimination on the basis of sexual orientation;
(2) to provide meaningful and effective remedies for
employment discrimination on the basis of sexual orientation;
and
(3) to invoke congressional powers, including the powers to
enforce the 14th amendment to the Constitution, and to
regulate interstate commerce and provide for the general
welfare pursuant to section 8 of article I of the
Constitution, in order to prohibit employment discrimination
on the basis of sexual orientation.

SEC. 3. DEFINITIONS.

(a) In General.--In this Act:
(1) Commission.--The term ``Commission'' means the Equal
Employment Opportunity Commission.
(2) Covered entity.--The term ``covered entity'' means an
employer, employment agency, labor organization, or joint
labor-management committee.
(3) Employee.--
(A) In general.--the term ``employee'' means--
(i) an employee as defined in section 701(f) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(f);
(ii) a Presidential appointee or State employee to which
section 302(a)(1) of the Government Employee Rights Act of
1991 (42 U.S.C. 2000e-16(a)(1) applies;
(iii) a covered employee, as defined in section 101 of the
Congressional Accountability Act of 1995 (2 U.S.C. 1301) or
section 411(c) of title 3, United States Code; or
(iv) an employee or applicant to which section 717(a) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies.
(B) Exception.--The provisions of this Act that apply to an
employee or individual shall not apply to a volunteer who
receives no compensation.
(4) Employer.--The term ``employer'' means--
(A) a person engaged in an industry affecting commerce (as
defined in section (701)(h) of the Civil Rights Act of 1964
(42 U.S.C. 2000e(h)) who has 15 or more employees (as defined
in subparagraphs (A)(i) and (B) of paragraph (3)) for each
working day in each of 20 or more calendar weeks in the
current or preceding calendar year, and any agent of such a
person, but does not include a bona fide private membership
club (other than a labor organization) that is exempt from
taxation under section 501(c) of the Internal Revenue Code of
1986;
(B) an employing authority to which section 302(a)(1) of
the Government Employee Rights Act of 1991 applies;
(C) an employing office, as defined in section 101 of the
Congressional Accountability Act of 1995 or section 411(c) of
title 3, United States Code; or
(D) an entity to which section 717(a) of the Civil Rights
Act of 1964 applies.
(5) Employment agency.--The term ``employment agency'' has
the meaning given the term in section 701(c) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(c)).
(6) Labor organization.--The term ``labor organization''
has the meaning given the term in section 701(d) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(d)).
(7) Person.--The term ``person'' has the meaning given the
term in section 701(a) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(a)).
(8) Religious organization.--The term ``religious
organization'' means--
(A) a religious corporation, association, or society; or
(B) a school, college, university, or other educational
institution or institution of learning, if--
(i) the institution is in whole or substantial part
controlled, managed, owned, or supported by a particular
religion, religious corporation, association, or society; or
(ii) the curriculum of the institution is directed toward
the propagation of a particular religion.
(9) Sexual orientation.--The term ``sexual orientation''
means homosexuality, heterosexuality, or bisexuality.
(10) State.--The term ``State'' has the meaning given the
term in section 701(i) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(i)).
(b) Application of Definitions.--For purposes of this
section, a reference in section 701 of the Civil Rights Act
of 1964--
(1) to an employee or an employer shall be considered to
refer to an employee (as defined in paragraph (3)) or an
employer (as defined in paragraph (4)), respectively, except
as provided in paragraph (2) below; and
(2) to an employer in subsection (f) of that section shall
be considered to refer to an employer (as defined in
paragraph (4)(A)).

SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED.

(a) Employer Practices.--It shall be an unlawful employment
practice for an employer--
(1) to fail or refuse to hire or to discharge any
individual, or otherwise discriminate against any individual
with respect to the compensation, terms, conditions, or
privileges of employment of the individual, because of such
individual's actual or perceived sexual orientation; or
(2) to limit, segregate, or classify the employees or
applicants for employment of the employer in any way that
would deprive or tend to deprive any individual of employment
or otherwise adversely affect the status of the individual as
an employee, because of such individual's actual or perceived
sexual orientation.
(b) Employment Agency Practices.--It shall be an unlawful
employment practice for an employment agency to fail or
refuse to refer for employment, or otherwise to discriminate
against, any individual because of the actual or perceived
sexual orientation of the individual or to classify or refer
for employment any individual on the basis of the actual or
perceived sexual orientation of the individual.
(c) Labor Organization Practices.--It shall be an unlawful
employment practice for a labor organization--
(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual because of
the actual or perceived sexual orientation of the individual;
(2) to limit, segregate, or classify its membership or
applicants for membership, or to classify or fail or refuse
to refer for employment any individual, in any way that would
deprive or tend to deprive any individual of employment, or
would limit such employment or otherwise adversely affect the
status of the individual as an employee or as an applicant
for employment because of such individual's actual or
perceived sexual orientation; or
(3) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
section.
(d) Training Programs.--It shall be an unlawful employment
practice for any employer, labor organization, or joint
labor-management committee controlling apprenticeship or
other training or retraining, including on-the-job training
programs, to discriminate against any individual because of
the actual or perceived sexual orientation of the individual
in admission to, or employment in, any program established to
provide apprenticeship or other training.
(e) Association.--An unlawful employment practice described
in any of subsections (a) through (d) shall be considered to
include an action described in that subsection, taken against
an individual based on the actual or perceived sexual
orientation of a person with whom the individual associates
or has associated.
(f) No Preferential Treatment or Quotas.--Nothing in this
Act shall be construed or interpreted to require or permit--
(1) any covered entity to grant preferential treatment to
any individual or to any group because of the actual or
perceived sexual orientation of such individual or group on
account of an imbalance which may exist with respect to the
total number or percentage of persons of any actual or
perceived sexual orientation employed by any employer,
referred or classified for employment by any employment
agency or labor organization, admitted to membership or
classified by any labor organization, or admitted to, or
employed in, any apprenticeship or other training program, in
comparison with the total number or percentage of persons of
such actual or perceived sexual orientation in any community,
State, section, or other area, or in the available work force
in any community, State, section, or other area; or
(2) the adoption or implementation by a covered entity of a
quota on the basis of actual or perceived sexual orientation.
(g) Disparate Impact.--Only disparate treatment claims may
be brought under this Act.

SEC. 5. RETALIATION PROHIBITED.

It shall be an unlawful employment practice for a covered
entity to discriminate against an individual because such
individual (1) opposed any practice made an unlawful
employment practice by this Act; or (2) made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this Act.

[[Page H13242]]

SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

This Act shall not apply to a religious organization.

SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES;
VETERANS' PREFERENCES.

(a) Armed Forces.--
(1) Employment.--In this Act, the term ``employment'' does
not apply to the relationship between the United States and
members of the Armed Forces.
(2) Armed forces.--In paragraph (1) the term ``Armed
Forces'' means the Army, Navy, Air Force, Marine Corps, and
Coast Guard.
(b) Veterans' Preferences.--This title does not repeal or
modify any Federal, State, territorial, or local law creating
a special right or preference concerning employment for a
veteran.

SEC. 8. CONSTRUCTION.

(a) Employer Rules and Policies.--
(1) In general.--Nothing in this Act shall be construed to
prohibit a covered entity from enforcing rules and policies
that do not intentionally circumvent the purposes of this
Act, if the rules or policies are designed for, and uniformly
applied to, all individuals regardless of actual or perceived
sexual orientation.
(2) Sexual harassment.--Nothing in this Act shall be
construed to limit a covered entity from taking adverse
action against an individual because of a charge of sexual
harassment against that individual, provided that rules and
policies on sexual harassment, including when adverse action
is taken, are designed for, and uniformly applied to, all
individuals regardless of actual or perceived sexual
orientation.
(3) Actions conditioned on marriage.--An unlawful
employment practice under section 4 shall include an action
described in that section that is conditioned, in a State in
which a person cannot marry a person of the same sex, either
on being married or being eligible to marry.
(b) Employee Benefits.--Nothing in this Act shall be
construed to require a covered entity to treat a couple who
are not married, including a same-sex couple who are not
married, in the same manner as the covered entity treats a
married couple for purposes of employee benefits.

SEC. 9. COLLECTION OF STATISTICS PROHIBITED.

The Commission shall not collect statistics on actual or
perceived sexual orientation from covered entities, or compel
the collection of such statistics by covered entities.

SEC. 10. ENFORCEMENT.

(a) Enforcement Powers.--With respect to the administration
and enforcement of this Act in the case of a claim alleged by
an individual for a violation of this Act--
(1) the Commission shall have the same powers as the
Commission has to administer and enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.); or
(B) sections 302 and 304 of the Government Employee Rights
Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c),

in the case of a claim alleged by such individual for a
violation of such title, or of section 302(a)(1) of the
Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
16b(a)(1)), respectively;
(2) the Librarian of Congress shall have the same powers as
the Librarian of Congress has to administer and enforce title
VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)
in the case of a claim alleged by such individual for a
violation of such title;
(3) the Board (as defined in section 101 of the
Congressional Accountability Act of 1995 (2 U.S.C. 1301))
shall have the same powers as the Board has to administer and
enforce the Congressional Accountability Act of 1995 (2
U.S.C. 1301 et seq.) in the case of a claim alleged by such
individual for a violation of section 201(a)(1) of such Act
(2 U.S.C. 1311(a)(1));
(4) the Attorney General shall have the same powers as the
Attorney General has to administer and enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.); or
(B) sections 302 and 304 of the Government Employee Rights
Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c);

in the case of a claim alleged by such individual for a
violation of such title, or of section 302(a)(1) of the
Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
16b(a)(1)), respectively;
(5) the President, the Commission, and the Merit Systems
Protection Board shall have the same powers as the President,
the Commission, and the Board, respectively, have to
administer and enforce chapter 5 of title 3, United States
Code, in the case of a claim alleged by such individual for a
violation of section 411 of such title; and
(6) a court of the United States shall have the same
jurisdiction and powers as the court has to enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.) in the case of a claim alleged by such
individual for a violation of such title;
(B) sections 302 and 304 of the Government Employee Rights
Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c) in the case
of a claim alleged by such individual for a violation of
section 302(a)(1) of such Act (42 U.S.C. 2000e-16b(a)(1));
(C) the Congressional Accountability Act of 1995 (2 U.S.C.
1301 et seq.) in the case of a claim alleged by such
individual for a violation of section 201(a)(1) of such Act
(2 U.S.C. 1311(a)(1)); and
(D) chapter 5 of title 3, United States Code, in the case
of a claim alleged by such individual for a violation of
section 411 of such title.
(b) Procedures and Remedies.--The procedures and remedies
applicable to a claim alleged by an individual for a
violation of this Act are--
(1) the procedures and remedies applicable for a violation
of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e
et seq.) in the case of a claim alleged by such individual
for a violation of such title;
(2) the procedures and remedies applicable for a violation
of section 302(a)(1) of the Government Employee Rights Act of
1991 (2 U.S.C. 1202(a)(1)) in the case of a claim alleged by
such individual for a violation of such section;
(3) the procedures and remedies applicable for a violation
of section 201(a)(1) of the Congressional Accountability Act
of 1995 (2 U.S.C. 1311(a)(1)) in the case of a claim alleged
by such individual for a violation of such section; and
(4) the procedures and remedies applicable for a violation
of section 411 of title 3, United States Code, in the case of
a claim alleged by such individual for a violation of such
section.
(c) Other Applicable Provisions.--With respect to a claim
alleged by a covered employee (as defined in section 101 of
the Congressional Accountability Act of 1995 (2 U.S.C. 1301))
for a violation of this Act, title III of the Congressional
Accountability Act of 1995 (2 U.S.C. 1381 et seq.) shall
apply in the same manner as such title applies with respect
to a claim alleged by such a covered employee for a violation
of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).

SEC. 11. STATE AND FEDERAL IMMUNITY.

(a) State Immunity.--A State shall not be immune under the
11th amendment to the Constitution from a suit described in
subsection (b) and brought in a Federal court of competent
jurisdiction for a violation of this Act.
(b) Remedies for State Employees.--
(1) In general.--
(A) Waiver.--A State's receipt or use of Federal financial
assistance for any program or activity of a State shall
constitute a waiver of sovereign immunity, under the 11th
amendment to the Constitution or otherwise, to a suit brought
by an employee or applicant for employment of that program or
activity under this Act for a remedy authorized under
subsection (c).
(B) Definition.--In this paragraph, the term ``program or
activity'' has the meaning given the term in section 606 of
the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a).
(2) Officials.--An official of a State may be sued in the
official capacity of the official by any employee or
applicant for employment who has complied with the applicable
procedures of section 10, for equitable relief that is
authorized under this Act. In such a suit the court may award
to the prevailing party those costs authorized by section 722
of the Revised Statutes of the United States (42 U.S.C.
1988).
(3) Effective date.--With respect to a particular program
or activity, paragraphs (1) and (2) apply to conduct
occurring on or after the day, after the date of enactment of
this Act, on which a State first receives or uses Federal
financial assistance for that program or activity.
(c) Remedies Against the United States and the States.--
Notwithstanding any other provision of this Act, in an action
or administrative proceeding against the United States or a
State for a violation of this Act, remedies (including
remedies at law and in equity, and interest) are available
for the violation to the same extent as the remedies are
available for a violation of title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq.) by a private entity,
except that--
(1) punitive damages are not available; and
(2) compensatory damages are available to the extent
specified in section 1977A(b) of the Revised Statutes (42
U.S.C. 1981a(b)).

SEC. 12. ATTORNEYS' FEES.

Notwithstanding any other provision of this Act, in an
action or administrative proceeding for a violation of this
Act, an entity described in section 10(a) (other than
paragraph (4) of such section), in the discretion of the
entity, may allow the prevailing party, other than the
Commission or the United States, a reasonable attorney's fee
(including expert fees) as part of the costs. The Commission
and the United States shall be liable for the costs to the
same extent as a private person.

SEC. 13. POSTING NOTICES.

A covered entity who is required to post notices described
in section 711 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-10) shall post notices for employees, applicants for
employment, and members, to whom the provisions specified in
section 10(b) apply, that describe the applicable provisions
of this Act in the manner prescribed by, and subject to the
penalty provided under, section 711 of the Civil Rights Act
of 1964.

SEC. 14. REGULATIONS.

(a) In General.--Except as provided in subsections (b),
(c), and (d), the Commission shall have authority to issue
regulations to carry out this Act.
(b) Librarian of Congress.--The Librarian of Congress shall
have authority to issue regulations to carry out this Act
with respect to

[[Page H13243]]

employees and applicants for employment of the Library of
Congress.
(c) Board.--The Board referred to in section 10(a)(3) shall
have authority to issue regulations to carry out this Act, in
accordance with section 304 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1384), with respect to
covered employees, as defined in section 101 of such Act (2
U.S.C. 1301).
(d) President.--The President shall have authority to issue
regulations to carry out this Act with respect to covered
employees, as defined in section 411(c) of title 3, United
States Code.

SEC. 15. RELATIONSHIP TO OTHER LAWS.

This Act shall not invalidate or limit the rights,
remedies, or procedures available to an individual claiming
discrimination prohibited under any other Federal law or
regulation or any law or regulation of a State or political
subdivision of a State.

SEC. 16. SEVERABILITY.

If any provision of this Act, or the application of the
provision to any person or circumstance, is held to be
invalid, the remainder of this Act and the application of the
provision to any other person or circumstances shall not be
affected by the invalidity.

SEC. 17. EFFECTIVE DATE.

This Act shall take effect 6 months after the date of the
enactment of this Act and shall not apply to conduct
occurring before the effective date.

The CHAIRMAN. No amendment to the bill is in order except those
printed in House Report 110-422. Each amendment may be offered only in
the order printed in the report, by a Member designated in the report,
shall be considered read, shall be debatable for the time specified in
the report, equally divided and controlled by the proponent and an
opponent of the amendment, shall not be subject to amendment, and shall
not be subject to a demand for division of the question.
Amendment No. 3 in the report may be withdrawn.

Amendment No. 1 Offered by Mr. George Miller of California

The CHAIRMAN. It is now in order to consider amendment No. 1 printed
in House Report 110-422.
Mr. GEORGE MILLER of California. Madam Chairman, I offer an
amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 1 offered by Mr. George Miller of California:
Strike paragraph (8) of section 3(a) (and redesignate
paragraphs (9) and (10) of such section as paragraphs (8) and
(9), respectively).
Strike section 6 and insert the following:

SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

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 Acts of 1964 pursuant to section 702(a) or 703(e)(2)
of such Act (42 U.S.C. 2000e-1(a); 2000e-2(e)(2)).
In section 8(b), strike ``, including a same-sex couple who
are not married,''.
At the end of section 8, insert the following:
(c) Definition of Marriage.--As used in this Act, the term
``married'' or ``marry'' refer to marriage as such term is
defined in section 7 of title I, United States Code (referred
to as the Defense of Marriage Act).

The CHAIRMAN. Pursuant to House Resolution 793, the gentleman from
California (Mr. George Miller) and a Member opposed each will control
10 minutes.
The Chair recognizes the gentleman from California.
Mr. GEORGE MILLER of California. 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.
Mr. STUPAK. Madam Chairman, I thank the chairman of the committee.
I rise in support of the Miller-Stupak amendment to the Employment
Non-Discrimination Act of 2007.
This amendment makes two important clarifications. First, our
amendment asserts and clarifies that any religious organization that is
currently covered by the Civil Rights Act of 1964 would be exempt from
the Employment Non-Discrimination Act. This will continue to protect
religious organizations, including corporations, schools, associations,
and societies from religious discrimination claims.

[[Page H13244]]

For the past 40-plus years, religious high schools, colleges and
other organizations throughout the Nation have been allowed to hire
individuals based on that institution's religious principles.
Today, as we adopt employment protections based on sexual
orientation, these principles should be upheld.
Continuing America's long-standing separation of church and State,
this amendment will ensure that the Federal Government does not
unconstitutionally infringe on religious organizations' hiring
practices.
Religious schools and organizations throughout my district and
throughout this Nation will continue to freely practice their beliefs
without being afraid of being charged with discrimination.
Several major religious organizations support the inclusion of a
religious exemption in ENDA, including the U.S. Conference of Catholic
Bishops, Union of Orthodox Jewish Congregations of America, and the
General Conference of the Seventh-day Adventist Church.
The Miller-Stupak amendment also upholds the Defense of Marriage Act.
It also clarifies that any reference to ``marriage'' within ENDA refers
to the legal union between one man and one woman as husband and wife.
In 1996, a bipartisan group of 342 Members, including myself, voted
in favor of the Defense of Marriage Act. Marriage is between a man and
woman. I support including a clear definition of marriage as a union
between a man and woman in this legislation.
No American should have to face discrimination in the workplace,
regardless of their race, gender or sexual orientation. However,
religious organizations should be able to hire individuals who agree
with their religious beliefs.

{time} 1630

It is also important to make it explicitly clear that marriage is a
union between a man and a woman and that no part of the Employment Non-
Discrimination Act could be misconstrued to undercut the Defense of
Marriage Act.
I urge my colleagues to join with me and the chairman in voting for
this amendment. With the inclusion of this amendment, I encourage
Members to vote for final passage of the Employment Non-Discrimination
Act.
I ask for a ``yes'' vote on the Miller-Stupak amendment.
Mr. GEORGE MILLER of California. Madam Chairman, I reserve the
balance of my time.
Mr. McKEON. Madam Chairman, I rise to claim the time in opposition to
the amendment. However, I do not oppose the amendment.
The CHAIRMAN. Without objection, the gentleman from California is
recognized for 10 minutes.
There was no objection.
Mr. McKEON. 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.
Mr. GEORGE MILLER of California. Does the gentleman have additional
speakers? We only have one speaker left and we have the right to close.
Mr. McKEON. Who has the right to close?
The CHAIRMAN. The gentleman from California (Mr. McKeon) has the
right to close.
Mr. McKEON. Madam Chairman, I am happy to yield at this time 2\1/2\
minutes to the gentleman from Georgia, Representative Broun.
Mr. 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

[[Page H13245]]

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. McKEON. Might I inquire how much time we have left?
The CHAIRMAN. The gentleman from California (Mr. McKeon) has 4\1/2\
minutes. The gentleman from California (Mr. George Miller) has 3
minutes.
Mr. McKEON. At this time, I would be happy to yield 3\1/2\ minutes to
the gentleman from Indiana (Mr. Souder).
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. GEORGE MILLER of California. Madam Chairman, I yield the
remaining time to the gentleman from New Jersey (Mr. Andrews).
The CHAIRMAN. The gentleman from New Jersey is recognized for 3
minutes.
(Mr. ANDREWS asked and was given permission to revise and extend his
remarks.)
Mr. ANDREWS. 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.
Mr. McKEON. Madam Chairman, I yield myself the balance of my time.
The CHAIRMAN. The gentleman from California is recognized for 1
minute.
Mr. McKEON. 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.

{time} 1645

The CHAIRMAN. The question is on the amendment offered by the
gentleman from California (Mr. George Miller).
The question was taken; and the Chairman announced that the ayes
appeared to have it.
Mr. GEORGE MILLER of California. Madam Chairman, I demand a recorded
vote.
The CHAIRMAN. Pursuant to clause 6 of rule XVIII, further proceedings
on the amendment offered by the gentleman from California will be
postponed.

[[Page H13246]]

Amendment No. 2 Offered by Mr. Souder

The CHAIRMAN. It is now in order to consider amendment No. 2 printed
in House Report 110-422.
Mr. SOUDER. Madam Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 2 offered by Mr. Souder:
Strike paragraph (3) of section 8(a).

The CHAIRMAN. Pursuant to House Resolution 793, the gentleman from
Indiana (Mr. Souder) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Indiana.
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. GEORGE MILLER of California. I ask unanimous consent to claim the
time in opposition.
The CHAIRMAN. Without objection, the gentleman is recognized for 5
minutes.
There was no objection.
Mr. GEORGE MILLER of California. 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
ENDA.
Let me explain this concern. When Mr. Frank and other original ENDA
sponsors and I wrote this bill, we were worried that a clever
discriminatory employer might realize he could not fire a gay employee
specifically because of his or her sexual orientation, so the
discriminatory employer might decide to create a pretextual reason for
firing that person; in this case, the fact that the employee is not
married or does not have the right to get married. That's why we
drafted section 8(a)(3).
However, the thing that convinced me to vote for the Souder amendment
is the fact that section 4 of ENDA, which my committee marked up and
favorably reported, makes the Souder amendment practically irrelevant.
Section 4 of ENDA is the portion of the bill that will very clearly
prohibit the discrimination based upon sexual orientation. So if an
employer is actually discriminating based upon sexual orientation, but
is pretending that the decision is based upon marital status, the gay
plaintiff will have the opportunity to convince a Federal jury of that
fact.
Consider the following example: A large accounting firm that has no
policy whatsoever about whether its accountants should be single or
married. That's not hard to picture because not many accounting firms
anywhere in America have a policy that requires an accountant to be
married. Being a good accountant is the reason that they hire people.
Then imagine that one of the accountants in a branch office let's his
coworkers know that he is gay. Now let's say that the branch office has
a homophobic manager who the very next day sends out a memo announcing
a new policy in the branch office that all accountants will have to be
married to keep their job. The manager has figured out this new policy
will allow him to fire gay or lesbian accountants, and it happens only
to an accountant who is unmarried.
Also imagine that after sending out the memo, the homophobic branch
manager sends an e-mail to some of his colleagues explaining: ``Now
that we have our new marriage policy, we can fire that disgusting
homosexual accountant.''
That gay accountant will be able to file a lawsuit pursuant to ENDA.
And that's the point of this legislation. They will be able to put
evidence before a Federal jury and to try and convince them he was
really fired because of sexual orientation, not because of marriage
policy. And that is why this legislation exists.

[[Page H13247]]

My point of this scenario that I've just described to you is that
already covered by section 4 of ENDA stating that the same thing of
section 8(a)(3) is just redundant. For all of these reasons I will vote
for the amendment offered by Mr. Souder. Even if 8(a)(3) is stricken
from ENDA, I believe that the gay plaintiff will still be able to
succeed in court and have a meritorious claim.
I reserve the balance of my time.
Mr. SOUDER. I yield myself such time as remains.
The CHAIRMAN. The gentleman is recognized for 2 minutes.
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. GEORGE MILLER of California. How much time do I have remaining?
The CHAIRMAN. The gentleman from California has 30 seconds.
Mr. GEORGE MILLER of California. I yield 15 seconds to the gentleman
from Massachusetts (Mr. Frank).
Mr. FRANK of Massachusetts. 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.
Mr. GEORGE MILLER of California. 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.)
Ms. JACKSON-LEE of Texas. Just on the underlying bill, every American
deserves to have a nondiscriminatory workplace, and that means whoever
you are, whatever faith, whatever sexual orientation, you deserve a
nondiscriminatory workplace.
I rise to support this legislation and ask my statement to be put
into the Record and to ensure that my constituents in Houston, Texas,
can be free of discrimination in the workplace.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from Indiana (Mr. Souder).
The question was taken; and the Chairman announced that the ayes
appeared to have it.
Mr. GEORGE MILLER of California. Madam Chairman, I demand a recorded
vote.
The CHAIRMAN. Pursuant to clause 6 of rule XVIII, further proceedings
on the amendment offered by the gentleman from Indiana will be
postponed.

Amendment No. 3 Offered by Ms. Baldwin

The CHAIRMAN. It is now in order to consider amendment No. 3 printed
in House Report 110-422.
Ms. BALDWIN. Madam Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 3 offered by Ms. Baldwin:
Throughout the Act, insert ``or gender identity'' after
``sexual orientation'' each place it appears.
In section 3(a), after paragraph (5) insert the following
(and redesignate succeeding paragraphs accordingly):
(6) Gender identity.--The term ``gender identity'' means
the gender-related identity, appearance, or mannerisms or
other gender-related characteristics of an individual, with
or without regard to the individual's designated sex at
birth.
In section 8(a), insert after paragraph (2) the following
(and redesignate succeeding paragraph accordingly):
(3) Certain shared facilities.--Nothing in this Act shall
be construed to establish an unlawful employment practice
based on actual or perceived gender identity due to the
denial of access to shared shower or dressing facilities in
which being seen unclothed is unavoidable, provided that the
employer provides reasonable access to adequate facilities
that are not inconsistent with the employee's gender identity
as established with the employer at the time of employment or
upon notification to the employer that the employee has
undergone or is undergoing gender transition, whichever is
later.
(4) Additional facilities not required.--Nothing in this
Act shall be construed to require the construction of new or
additional facilities.
(5) Dress and grooming standards.--Nothing in this Act
shall prohibit an employer from requiring an employee, during
the employee's hours at work, to adhere to reasonable dress
or grooming standards not prohibited by other provisions of
Federal, State, or local law, provided that the employer
permits any employee who has undergone gender transition
prior to the time of employment, and any employee who has
notified the employer that the employee has undergone or is
undergoing gender transition after the time of employment, to
adhere to the same dress or grooming standards for the gender
to which the employee has transitioned or is transitioning.

The CHAIRMAN. Pursuant to House Resolution 793, the gentlewoman from
Wisconsin (Ms. Baldwin) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentlewoman from Wisconsin.
Ms. BALDWIN. Madam Chairman, I yield myself 3\1/2\ minutes.
Madam Chairman, in the United States, the law forbids discrimination
in employment on the basis of a person's race, color, sex, religion or
national origin. It forbids discrimination based on age or disability,
perceived or real. These protections were not easy to achieve, but we
are better for them.
Today, ENDA seeks to expand the law to prohibit job discrimination
against people because of their sexual orientation, and my amendment
would also include gender identity.
We have worked steadily over the years to rid our Nation of
irrational hate and fear against gay and transgender Americans that too
often results in violent hate crimes, ostracism, bullying and
discrimination in employment, housing, public accommodations or
education.
Today, at least 282 cities and towns and 19 States across the country
have protections against discrimination based on sexual orientation in
both public and private sector jobs. And more than 93 local
jurisdictions in 11 States have laws that include protections based on
gender identity.
195 American businesses employing more than 8.3 million American
workers have exemplary policies that protect gay, lesbian, bisexual and
transgender employees, consumers and investors; 58 percent of these
firms provide employment protections on the basis of gender identity.
It is time for Congress to catch up to our communities and American
businesses. Today we can strengthen our laws against discrimination in
the workplace.
While gay and lesbian Americans are now out and accepted in record
numbers, not everyone understands the issue of gender identity. Few
understand how a person's body might not match their internal sense of
gender.

{time} 1700

This is not a new phenomenon. It is not a fad. And it is certainly
not a reason to lose one's job.
Some have asked why it is essential to include protections for
transgender Americans in this legislation. The answer is that this
community shares a common history with the rest of the lesbian, gay,
and bisexual community, a history of suffering, discrimination, and too
often violence, just for being who they are.
The importance of nondiscrimination laws cannot be overstated.
Substantively, they provide legal remedies and a chance to seek
justice. Symbolically, they say that in America we judge our fellow
citizens by their integrity, their character, their talents; and not
their sexual orientation or gender

[[Page H13248]]

identity, race or religion, age or disability.
Irrational hate and fear have no place in our society. If we truly
believe in life, liberty, and the pursuit of happiness; if we truly
want to protect the most vulnerable in our society; if we continue to
profess that all men are created equal, then we must work towards
achieving the American Dream for all, and not just for some.
Madam Chairman, I reserve the balance of my time.
Mr. SOUDER. Madam Chairman, I claim the time in opposition.
The CHAIRMAN. The gentleman from Indiana is recognized for 5 minutes.
Mr. SOUDER. If I may inquire, do I have the right to close?
The CHAIRMAN. Yes, the gentleman does.
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.
Ms. BALDWIN. Madam Chairman, I yield myself the balance of my time.
The CHAIRMAN. The gentlewoman from Wisconsin is recognized for 1\1/2\
minutes.
Ms. BALDWIN. My amendment reflects my belief that we should be acting
on an inclusive ENDA, covering both sexual orientation and gender
identity. Now, those of us in politics know that it is much easier to
protect a provision in a bill from removal on the floor than it is to
add a provision to a bill once it has been reported out of committee.
This amendment is no exception to that rule. But while I believe that a
roll call vote on this amendment would demonstrate strong support for
an inclusive ENDA, I believe that it will fall short of adoption.
People have asked why I pressed for and insisted upon bringing an
amendment to the floor and maintaining the option to withdraw it
without a vote. The reason is simple: I believe that those who will be
left behind by this bill deserve to hear on this House floor that you
are not forgotten and our job will not be finished until you too share
fully in the American Dream.
So at the moment at which the closing arguments are made, I will
withdraw this amendment with a commitment to my colleagues and all
Americans committed to equality of opportunity and ending
discrimination that I will do everything within my power to make this
measure whole again.
The CHAIRMAN. Does the gentlewoman yield back her time?
Ms. BALDWIN. If I withdraw right now, I will preclude the gentleman
from making his closing. I do not want to preclude him from doing that;
so I will just wait to withdraw until he has finished with his remarks.
Mr. SOUDER. I have the right to close since I am defending?
The CHAIRMAN. The gentleman has the right to close and has 1\1/4\
minutes remaining.
Mr. SOUDER. I will reserve the balance of my time until she yields
back. I have the right to close.
The CHAIRMAN. The gentlewoman from Wisconsin's time has expired.
Mr. SOUDER. Madam Chairman, I strongly oppose this amendment. I
believe the majority of the House opposes this amendment.
Mrs. MALONEY of New York. Madam Chairman, I rise today in strong
support of the amendment offered today by my distinguished colleague,
Congresswoman Tammy Baldwin.
Transgender Americans need and deserve protection from employment
discrimination. All too often they bear the brunt of brutal bigotry,
and are subject to unspeakable hatred and violence inspired by fear and
ignorance.
That is why I strongly support this amendment to provide protection
from job discrimination to transgender Americans.
Congress took an important step earlier this year when we passed a
hate crimes bill that included protections for lesbian, gay, bisexual,
and transgender people.
It is unfortunate that there is not at this time the same degree of
support in the House to pass this measure.
Discrimination based on gender identity and gender expression should
simply not be tolerated in the United States of America.
And, while there may not be enough support for us to pass this
amendment today, I pledge to work with my distinguished colleague from
Wisconsin and other like-minded Members to educate and persuade this
House of the need to enact protections from discrimination for
transgender Americans.
We will not rest until the right of every American, regardless of his
or her gender identity or gender expression, to live free of fear,
discrimination and intolerance is the law of the land.
I urge my distinguished colleagues in this House to strike a blow for
justice and tolerance by passing this amendment.
Mr. SOUDER. Madam Chairman, I yield back the balance of my time and
call for a recorded vote.
Ms. BALDWIN. Madam Chairman, I withdraw the amendment.
The CHAIRMAN. Pursuant to House Resolution 793, the amendment is
withdrawn.

[[Page H13249]]

parliamentary inquiry

Mr. SOUDER. Parliamentary inquiry.
The CHAIRMAN. The gentleman will state his inquiry.
Mr. SOUDER. 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?
The CHAIRMAN. The gentlewoman withdrew the amendment before the Chair
put the question on the amendment.
Mr. SOUDER. But why did you recognize her when I had the right to
close?
The CHAIRMAN. The gentleman made the closing remarks in debate. Then
the amendment was withdrawn.

parliamentary inquiry

Mr. FRANK of Massachusetts. Parliamentary inquiry.
The CHAIRMAN. The gentleman will state his inquiry.
Mr. FRANK of Massachusetts. Is it in order to demand a roll call
before the Chair has put the voice vote?
The CHAIRMAN. No.

Announcement by the Chairman

The CHAIRMAN. Pursuant to clause 6 of rule XVIII, proceedings will
now resume on those amendments on which further proceedings were
postponed, in the following order:
Amendment No. 1 by Mr. George Miller of California.
Amendment No. 2 by Mr. Souder of Indiana.
The Chair will reduce to 5 minutes the time for any electronic vote
after the first vote in this series.

amendment no. 1 offered by mr. george miller of california

The CHAIRMAN. The unfinished business is the demand for a recorded
vote on amendment No. 1 printed in House Report 110-422 offered by the
gentleman from California (Mr. George Miller) on which further
proceedings were postponed and on which the ayes prevailed by voice
vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

recorded vote

The CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 402,
noes 25, not voting 10, as follows:

[Roll No. 1054]

AYES--402

Abercrombie
Ackerman
Aderholt
Akin
Alexander
Allen
Altmire
Andrews
Arcuri
Baca
Bachmann
Bachus
Baird
Baker
Baldwin
Barrow
Bartlett (MD)
Bean
Becerra
Berkley
Berman
Berry
Biggert
Bilbray
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blumenauer
Blunt
Boehner
Bonner
Bono
Boozman
Bordallo
Boren
Boswell
Boucher
Boustany
Boyd (FL)
Boyda (KS)
Brady (PA)
Brady (TX)
Brown (SC)
Brown, Corrine
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Butterfield
Calvert
Camp (MI)
Campbell (CA)
Cantor
Capito
Capps
Capuano
Cardoza
Carnahan
Carney
Carter
Castle
Castor
Chabot
Chandler
Clarke
Clay
Cleaver
Clyburn
Coble
Cohen
Cole (OK)
Conaway
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crenshaw
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, David
Davis, Lincoln
Davis, Tom
Deal (GA)
DeFazio
DeGette
Delahunt
DeLauro
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Donnelly
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Ellison
Ellsworth
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Everett
Faleomavaega
Fallin
Farr
Fattah
Feeney
Ferguson
Filner
Flake
Forbes
Fortenberry
Fortuno
Fossella
Frank (MA)
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Giffords
Gilchrest
Gillibrand
Gingrey
Gonzalez
Goodlatte
Gordon
Granger
Graves
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hall (TX)
Hare
Harman
Hastert
Hastings (FL)
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Herseth Sandlin
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hobson
Hodes
Hoekstra
Holden
Holt
Honda
Hooley
Hoyer
Hulshof
Hunter
Inglis (SC)
Inslee
Israel
Issa
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson (IL)
Johnson, E. B.
Jones (OH)
Jordan
Kagen
Kanjorski
Kaptur
Keller
Kennedy
Kildee
Kilpatrick
Kind
King (IA)
King (NY)
Kingston
Kirk
Klein (FL)
Kline (MN)
Knollenberg
Kucinich
Kuhl (NY)
Lamborn
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Levin
Lewis (CA)
Lewis (GA)
Lipinski
LoBiondo
Loebsack
Lofgren, Zoe
Lowey
Lucas
Lungren, Daniel E.
Lynch
Mack
Mahoney (FL)
Maloney (NY)
Manzullo
Markey
Marshall
Matheson
Matsui
McCarthy (CA)
McCarthy (NY)
McCollum (MN)
McCotter
McCrery
McDermott
McGovern
McHenry
McHugh
McIntyre
McKeon
McMorris Rodgers
McNerney
McNulty
Meek (FL)
Meeks (NY)
Melancon
Mica
Michaud
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murphy, Tim
Murtha
Musgrave
Myrick
Nadler
Napolitano
Neal (MA)
Neugebauer
Norton
Nunes
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Pearce
Pence
Perlmutter
Peterson (MN)
Peterson (PA)
Petri
Pickering
Platts
Poe
Pomeroy
Porter
Price (GA)
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Reichert
Renzi
Reyes
Reynolds
Richardson
Rodriguez
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Salazar
Sali
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Saxton
Schiff
Schmidt
Schwartz
Scott (GA)
Scott (VA)
Sensenbrenner
Serrano
Sessions
Sestak
Shadegg
Shays
Shea-Porter
Sherman
Shimkus
Shuler
Simpson
Sires
Skelton
Slaughter
Smith (NE)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Solis
Souder
Space
Spratt
Stearns
Stupak
Sullivan
Sutton
Tancredo
Tanner
Tauscher
Taylor
Terry
Thompson (CA)
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Visclosky
Walberg
Walden (OR)
Walsh (NY)
Walz (MN)
Wamp
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Weldon (FL)
Weller
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (OH)
Wilson (SC)
Wolf
Wu
Wynn
Yarmuth
Young (AK)
Young (FL)

NOES--25

Barrett (SC)
Barton (TX)
Blackburn
Broun (GA)
Cannon
Culberson
Davis (KY)
Foxx
Gohmert
Goode
Johnson, Sam
Jones (NC)
Lee
Lewis (KY)
Linder
Marchant
McCaul (TX)
Pitts
Schakowsky
Shuster
Stark
Tsongas
Velazquez
Wasserman Schultz
Woolsey

NOT VOTING--10

Braley (IA)
Buyer
Carson
Christensen
Cubin
Jindal
LaHood
Oberstar
Paul
Westmoreland

Announcement by the Chairman

The CHAIRMAN (during the vote). Two minutes remain in this vote.

{time} 1735

Mr. STARK, Ms. WOOLSEY, Ms. VELAZQUEZ and Ms. SCHAKOWSKY changed
their vote from ``aye'' to ``no.''
Messrs. FORBES, MILLER of Florida, LAMBORN, SALI, BURTON of Indiana,
ADERHOLT, KINGSTON, AKIN and Ms. WATERS changed their vote from ``no''
to ``aye.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.

Amendment No. 2 Offered by Mr. Souder

The CHAIRMAN. The unfinished business is the demand for a recorded
vote on amendment No. 2 printed in House Report 110-422 offered by the
gentleman from Indiana (Mr. Souder) on which further proceedings were
postponed and on which the ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

Recorded Vote

The CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The CHAIRMAN. This is a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 325,
noes 101, not voting 11, as follows:

[Roll No. 1055]

AYES--325

Aderholt
Akin
Alexander
Altmire
Andrews
Arcuri
Baca
Bachmann
Bachus
Baker
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bean
Berry
Biggert
Bilbray
Bilirakis
Bishop (GA)
Bishop (UT)

[[Page H13250]]

Blackburn
Blumenauer
Blunt
Boehner
Bonner
Bono
Boozman
Bordallo
Boucher
Boustany
Boyd (FL)
Boyda (KS)
Brady (PA)
Brady (TX)
Broun (GA)
Brown (SC)
Brown, Corrine
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Butterfield
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Capuano
Cardoza
Carnahan
Carney
Carter
Castle
Chabot
Chandler
Cleaver
Coble
Cole (OK)
Conaway
Cooper
Costa
Costello
Courtney
Cramer
Crenshaw
Cuellar
Culberson
Davis (AL)
Davis (CA)
Davis (KY)
Davis, David
Davis, Lincoln
Davis, Tom
Deal (GA)
DeFazio
DeLauro
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Doggett
Donnelly
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Ellsworth
Emanuel
Emerson
English (PA)
Eshoo
Etheridge
Everett
Faleomavaega
Fallin
Fattah
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fortuno
Fossella
Foxx
Frank (MA)
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gilchrest
Gingrey
Gohmert
Gonzalez
Goode
Goodlatte
Gordon
Granger
Graves
Green, Gene
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Herseth Sandlin
Higgins
Hill
Hinojosa
Hirono
Hobson
Hoekstra
Holden
Hooley
Hoyer
Hulshof
Hunter
Inglis (SC)
Issa
Jackson (IL)
Jefferson
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Kagen
Kanjorski
Kaptur
Keller
Kildee
Kind
King (IA)
King (NY)
Kingston
Kirk
Klein (FL)
Kline (MN)
Knollenberg
Kuhl (NY)
Lamborn
Lampson
Langevin
Larson (CT)
Latham
LaTourette
Levin
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lucas
Lungren, Daniel E.
Lynch
Mack
Mahoney (FL)
Maloney (NY)
Manzullo
Marchant
Markey
Marshall
Matheson
McCarthy (CA)
McCarthy (NY)
McCaul (TX)
McCollum (MN)
McCotter
McCrery
McHenry
McHugh
McIntyre
McKeon
McMorris Rodgers
McNerney
Meek (FL)
Melancon
Mica
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Miller, George
Mitchell
Mollohan
Moore (KS)
Moran (KS)
Murphy, Patrick
Murphy, Tim
Murtha
Musgrave
Myrick
Neal (MA)
Neugebauer
Norton
Nunes
Obey
Olver
Ortiz
Pascrell
Pastor
Pearce
Pence
Perlmutter
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pomeroy
Porter
Price (GA)
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Reichert
Renzi
Reyes
Reynolds
Richardson
Rodriguez
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Ross
Royce
Ruppersberger
Ryan (OH)
Ryan (WI)
Salazar
Sali
Sanchez, Loretta
Saxton
Schiff
Schmidt
Schwartz
Scott (GA)
Sensenbrenner
Sessions
Sestak
Shadegg
Shimkus
Shuler
Shuster
Simpson
Sires
Skelton
Smith (NE)
Smith (NJ)
Smith (TX)
Snyder
Souder
Space
Spratt
Stearns
Stupak
Sullivan
Tancredo
Tanner
Tauscher
Taylor
Terry
Thompson (CA)
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Tierney
Turner
Udall (CO)
Udall (NM)
Upton
Visclosky
Walberg
Walden (OR)
Walsh (NY)
Walz (MN)
Wamp
Weldon (FL)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (OH)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOES--101

Abercrombie
Ackerman
Allen
Baird
Baldwin
Becerra
Berkley
Berman
Bishop (NY)
Boswell
Capps
Castor
Clarke
Clay
Clyburn
Cohen
Conyers
Crowley
Cummings
Davis (IL)
DeGette
Delahunt
Dingell
Ellison
Engel
Farr
Filner
Giffords
Gillibrand
Green, Al
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Hinchey
Hodes
Holt
Honda
Inslee
Israel
Jackson-Lee (TX)
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kennedy
Kilpatrick
Kucinich
Lantos
Larsen (WA)
Lee
Lewis (GA)
Loebsack
Lofgren, Zoe
Lowey
Matsui
McDermott
McGovern
McNulty
Meeks (NY)
Michaud
Moore (WI)
Moran (VA)
Murphy (CT)
Nadler
Napolitano
Pallone
Payne
Rothman
Roybal-Allard
Rush
Sanchez, Linda T.
Sarbanes
Schakowsky
Scott (VA)
Serrano
Shays
Shea-Porter
Sherman
Slaughter
Smith (WA)
Solis
Stark
Sutton
Towns
Tsongas
Van Hollen
Velazquez
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Woolsey
Wu
Wynn
Yarmuth

NOT VOTING--11

Boren
Braley (IA)
Buyer
Carson
Christensen
Cubin
Jindal
LaHood
Oberstar
Paul
Westmoreland

Announcement by the Chairman

The CHAIRMAN (during the vote). There are 2 minutes remaining on this
vote.

{time} 1744

Mrs. LOWEY changed her vote from ``aye'' to ``no.''
Ms. CORRINE BROWN of Florida, Messrs. NEAL of Massachusetts, CLEAVER,
WALZ of Minnesota, UDALL of Colorado and GENE GREEN of Texas changed
their vote from ``no'' to ``aye.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.
The CHAIRMAN. There being no further amendments, under the rule, the
Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Snyder) having assumed the chair, Mrs. Tauscher, Chairman of the
Committee of the Whole House on the state of the Union, reported that
that Committee, having had under consideration the bill (H.R. 3685) to
prohibit employment discrimination on the basis of sexual orientation,
pursuant to House Resolution 793, she reported the bill back to the
House with sundry amendments adopted by the Committee of the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on any amendment reported from the
Committee of the Whole? If not, the Chair will put them en gros.
The amendments were agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.

{time} 1745

Motion to Recommit Offered By Mr. Forbes

Mr. FORBES. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore. Is the gentleman opposed to the bill?
Mr. FORBES. In its present form I am.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. Forbes moves to recommit the bill, H.R. 3685, to the
Committee on Education and Labor with instructions to report
the same back to the House promptly with the following
amendment:
In section 8(c) (as amended), strike ``As used in'' and
insert the following:
(1) As used in
At the end of section 8(c) (as amended), insert the
following:
(2) Nothing in this Act may be construed to modify, limit,
restrict, or in any way overturn any State or Federal
definition of marriage as between one man and one woman,
including the use of this Act as a legal predicate in
litigation on the issue of marriage.
The SPEAKER pro tempore. The gentleman from Virginia is recognized
for 5 minutes.
Mr. FORBES. Mr. Speaker, one of the big concerns that many of us have
with legislation of this type is that courts across the country have
used it to establish public policy, and then certain judges have taken
that and determined from that public policy that they are going to
redefine the institution of marriage.
In considering this bill, I am deeply troubled by not only what is in
the bill, but where I believe this bill is leading us. And you don't
have to take my word for it. A memo from the Marriage Law Project at
Catholic University's Columbus School of Law noted this:
``ENDA is about more than jobs. It is also about marriage. ENDA is
based on the idea that State laws restricting marriage to the union of
one man and one woman are a `subterfuge' for discrimination against
homosexuals and bisexuals. If the courts accept the proposition that
marriage is a `subterfuge' for discrimination on the basis of sexual
orientation, the Defense of Marriage Act will be struck down as
unconstitutional.''
And that is the goal, Mr. Speaker. This legislation will ultimately
allow activist judges across the country to redefine the institution of
marriage. The majority might say that is not their intent, but I
guarantee that is exactly what will happen if ENDA passes as it is. If
we don't vote to stop it, then we are tacitly allowing one of our most
sacred institutions to be torn down.
This legislation will provide certain activist judges with the legal
justification to strike down State and Federal

[[Page H13251]]

marriage laws that define marriage as between one man and one woman.
State ENDA laws are being used by activist judges to impose same-sex
marriage and civil unions on States. State courts are using ENDA and
other similar laws to justify the argument that the government has no
rational basis to continue discriminating in the area of marriage. And
this is not something that might happen down the road. It has already
happened in three States: Massachusetts, Vermont and New Jersey.
In Massachusetts, the supreme court there decided in Goodridge v.
Department of Public Health that there was no rational basis for the
denial of marriage to same-sex couples. In that case the court cited a
list of State statutes, including nondiscrimination laws, as evidence
that the State should not discriminate in the area of marriage. The
court's opinion laid it out clearly, writing, ``Massachusetts has a
strong, affirmative policy of preventing discrimination on the basis of
sexual orientation.'' You can't get any clearer than that on how
nondiscrimination laws can be used to undermine marriage.
However, even before the Massachusetts decision, the supreme court of
Vermont in 1999 ordered the State legislature to pass either a same-sex
marriage or civil union law. The Vermont court relied in part on the
fact that the State had a law preventing discrimination based on sexual
orientation. The court said it would be irrational and thus not meet
the rational basis test to argue that the State could refuse to allow
same-sex marriage or civil unions when they clearly already had a law
prohibiting discrimination on the basis of sexual orientation.
Most recently, New Jersey's courts have gotten into the game. In
2006, the New Jersey Supreme Court gave the State legislature 6 months
to pass either a same-sex marriage law or a civil union law. In Lewis
v. Harris the court stated, ``New Jersey's legislature has been at the
forefront of combating sexual orientation discrimination and advancing
equality of treatment towards gays and lesbians. In 1992, through an
amendment to the law against discrimination, New Jersey became the
fifth State in the Nation to prohibit discrimination on the basis of
affectional or sexual orientation.''
Mr. Speaker, I rise today to ensure that this bill does not become
the building block that some may want to use to destroy the institution
of marriage. The motion simply says this: That nothing in this act may
be construed to modify, limit, restrict, or in any way overturn any
State or Federal definition of marriage as between one man and one
woman, including the use of this act as a legal predicate in litigation
on the issue of marriage.
On the wall in my office, I have a framed copy of the Declaration of
Independence and the pictures of our Founding Fathers. This wall serves
as a reminder to me of the ideals and institutions our country was
founded on. Yet every day we see people trying to rewrite our history
and tear down those ideals and institutions.
This country is great because of the ideals of our Founding Fathers,
but eventually if we chip away at enough of our values, we will lose
our foundation. This is what is happening and will continue to happen
unless we stand up and make sure it doesn't.
Marriage between a man and woman has been the cornerstone of strength
in our country, and while it may be under attack from all sides, I
believe it is an institution worth protecting. This motion allows us to
take a stand for marriage, for our country, and, at least for today,
puts a stop to those that are trying or may try to use this legislation
as a predicate to change those laws. This motion would ensure that the
intentions of this Congress are clear and unambiguous.
Mr. FRANK of Massachusetts. Mr. Speaker, I rise in opposition to the
motion to recommit.
The SPEAKER pro tempore. The gentleman is recognized for 5 minutes.
Mr. FRANK of Massachusetts. 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?
Mr. FORBES. I would object.
Mr. FRANK of Massachusetts. 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.
Mr. FORBES. Mr. Speaker, I would be glad, if the gentleman would
yield me some time.
Mr. FRANK of Massachusetts. I asked the gentleman a simple question.
Mr. FORBES. If the gentleman doesn't want me to respond, then I
won't.

[[Page H13252]]

Mr. FRANK of Massachusetts. 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.
The SPEAKER pro tempore. Without objection, the previous question is
ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. FORBES. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 and clause 9 of rule
XX, this 15-minute vote on the motion to recommit will be followed by a
5-minute vote on passage of the bill, if ordered, and suspension of the
rules and adoption of House Concurrent Resolution 236.
The vote was taken by electronic device, and there were--yeas 198,
nays 222, not voting 13, as follows:

[Roll No. 1056]

YEAS--198

Aderholt
Akin
Alexander
Altmire
Bachmann
Bachus
Baker
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Boozman
Boustany
Brady (TX)
Broun (GA)
Brown (SC)
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Crenshaw
Culberson
Davis (KY)
Davis, David
Davis, Lincoln
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Donnelly
Doolittle
Drake
Dreier
Duncan
Ehlers
Ellsworth
Emerson
English (PA)
Everett
Fallin
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Hill
Hobson
Hoekstra
Hulshof
Hunter
Inglis (SC)
Issa
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kline (MN)
Knollenberg
Kuhl (NY)
Lamborn
Lampson
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
Marshall
Matheson
McCarthy (CA)
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McIntyre
McKeon
McMorris Rodgers
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy, Tim
Musgrave
Myrick
Neugebauer
Nunes
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Poe
Porter
Price (GA)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Roskam
Royce
Ryan (WI)
Sali
Saxton
Schmidt
Sensenbrenner
Sessions
Shadegg
Shimkus
Shuler
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Souder
Space
Stearns
Sullivan
Tancredo
Taylor
Terry
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walberg
Walden (OR)
Walsh (NY)
Wamp
Weldon (FL)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NAYS--222

Abercrombie
Ackerman
Allen
Andrews
Arcuri
Baca
Baird
Baldwin
Bean
Becerra
Berkley
Berman
Berry
Biggert
Bishop (GA)
Bishop (NY)
Blumenauer
Bono
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Brady (PA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Doyle
Edwards
Ellison
Emanuel
Engel
Eshoo
Etheridge
Farr
Fattah
Filner
Frank (MA)
Gilchrest
Gillibrand
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth Sandlin
Higgins
Hinchey
Hinojosa
Hirono
Hodes
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Kirk
Klein (FL)
Kucinich
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McNerney
McNulty
Meek (FL)
Meeks (NY)
Melancon
Michaud
Miller (NC)
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Pelosi
Perlmutter
Platts
Pomeroy
Price (NC)
Pryce (OH)
Rahall
Rangel
Reyes
Richardson
Rodriguez
Ros-Lehtinen
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shays
Shea-Porter
Sherman
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Thompson (CA)
Thompson (MS)
Tierney
Towns
Tsongas
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wilson (OH)
Woolsey
Wu
Wynn
Yarmuth

NOT VOTING--13

Boren
Braley (IA)
Buyer
Carson
Cubin
Giffords
Herger
Jindal
LaHood
Oberstar
Paul
Shuster
Westmoreland

Announcement by the Speaker Pro Tempore

The SPEAKER pro tempore (during the vote). Members are advised there
are 2 minutes remaining in this vote.

{time} 1816

Mr. TAYLOR changed his vote from ``nay'' to ``yea.''
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
Stated for:
Mr. HERGER. Mr. Speaker, on rollcall No. 1056, the Forbes motion to
recommit H.R. 3685--Employment Non-Discrimination Act with
instructions, I was unavoidably detained and missed the vote. Had I
been present, I would have voted ``yea.''
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. PRICE of Georgia. Mr. Speaker, on that I demand the yeas and
nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--yeas 235,
nays 184, not voting 14, as follows:

[Roll No. 1057]

YEAS--235

Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Bean
Becerra
Berkley
Berman
Biggert
Bishop (GA)
Bishop (NY)
Blumenauer
Bono
Boswell
Boucher
Boyda (KS)
Brady (PA)
Brown, Corrine
Butterfield
Campbell (CA)
Capps
Capuano
Cardoza
Carnahan
Carney
Castle
Castor
Chandler
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Costa
Costello
Courtney
Crowley
Cuellar
Cummings
Davis (CA)
Davis (IL)
Davis, Tom
DeFazio
DeGette
Delahunt
DeLauro
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Donnelly
Doyle
Dreier
Ellison
Ellsworth
Emanuel
Engel
English (PA)
Eshoo
Etheridge
Farr
Fattah
Filner
Flake
Fossella
Frank (MA)
Frelinghuysen
Gerlach
Gilchrest
Gillibrand
Gonzalez
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth Sandlin
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hobson
Hodes
Holden
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Kirk
Klein (FL)
Knollenberg
Kucinich
Kuhl (NY)
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
LoBiondo
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McCotter
McCrery
McDermott
McGovern
McHugh
McNerney

[[Page H13253]]

McNulty
Meek (FL)
Meeks (NY)
Miller (MI)
Miller (NC)
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Napolitano
Neal (MA)
Obey
Ortiz
Pallone
Pascrell
Pastor
Payne
Pelosi
Perlmutter
Peterson (MN)
Platts
Pomeroy
Porter
Price (NC)
Pryce (OH)
Ramstad
Rangel
Reichert
Reyes
Richardson
Rodriguez
Ros-Lehtinen
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Saxton
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shays
Shea-Porter
Sherman
Sires
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tauscher
Thompson (CA)
Thompson (MS)
Tiberi
Tierney
Tsongas
Udall (CO)
Udall (NM)
Van Hollen
Visclosky
Walden (OR)
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Welch (VT)
Wexler
Wilson (OH)
Woolsey
Wu
Wynn
Yarmuth

NAYS--184

Aderholt
Akin
Alexander
Bachmann
Bachus
Baker
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Berry
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Boozman
Boustany
Brady (TX)
Broun (GA)
Brown (SC)
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Calvert
Camp (MI)
Cannon
Cantor
Capito
Carter
Chabot
Clarke
Coble
Cole (OK)
Conaway
Cramer
Crenshaw
Culberson
Davis (AL)
Davis (KY)
Davis, David
Davis, Lincoln
Deal (GA)
Doolittle
Drake
Duncan
Edwards
Ehlers
Emerson
Everett
Fallin
Feeney
Ferguson
Forbes
Fortenberry
Foxx
Franks (AZ)
Gallegly
Garrett (NJ)
Gingrey
Gohmert
Goode
Goodlatte
Gordon
Granger
Graves
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hoekstra
Holt
Hulshof
Hunter
Inglis (SC)
Issa
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kline (MN)
Lamborn
Lampson
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
Lipinski
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
Marshall
McCarthy (CA)
McCaul (TX)
McHenry
McIntyre
McKeon
McMorris Rodgers
Melancon
Mica
Michaud
Miller (FL)
Miller, Gary
Moran (KS)
Murphy, Tim
Musgrave
Myrick
Nadler
Neugebauer
Nunes
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Poe
Price (GA)
Putnam
Radanovich
Rahall
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Roskam
Ross
Royce
Sali
Schmidt
Sensenbrenner
Sessions
Shadegg
Shimkus
Shuler
Shuster
Simpson
Skelton
Smith (NE)
Smith (NJ)
Smith (TX)
Souder
Stearns
Sullivan
Tancredo
Tanner
Taylor
Terry
Thornberry
Tiahrt
Towns
Turner
Upton
Velazquez
Walberg
Walsh (NY)
Wamp
Weiner
Weldon (FL)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOT VOTING--14

Boren
Boyd (FL)
Braley (IA)
Buyer
Carson
Cubin
Giffords
Jefferson
Jindal
LaHood
Oberstar
Olver
Paul
Westmoreland

Announcement by the Speaker Pro Tempore

The SPEAKER pro tempore (during the vote). Members are advised there
are 2 minutes remaining on the vote.

{time} 1823

So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.

____________________