[Congressional Record Volume 159, Number 158 (Thursday, November 7, 2013)]
[Senate]
[Pages S7894-S7909]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               EMPLOYMENT NON-DISCRIMINATION ACT OF 2013

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 815, which the clerk will report.
  The legislative clerk read as follows:

  A bill (S. 815) to prohibit employment discrimination on the basis of 
sexual orientation or gender identity.

  Pending:

       Reid amendment No. 2014 (to the language proposed to be 
     stricken by the committee substitute), to change the 
     enactment date.
       Reid amendment No. 2015 (to amendment No. 2014), of a 
     perfecting nature.
       Reid motion to recommit the bill to the Committee on 
     Health, Education, Labor, and Pensions with instructions to 
     report back forthwith, Reid Amendment No. 2016, to change the 
     enactment date.
       Reid amendment No. 2017 (to (the instructions of the motion 
     to recommit) Amendment No. 2016), of a perfecting nature.
       Reid amendment No. 2018 (to amendment No. 2017), of a 
     perfecting nature.
       Reid (for Toomey/Flake) amendment No. 2013, to strike the 
     appropriate balance between protecting workers and protecting 
     religious freedom.
       Collins (for Reid) amendment No. 2020 (to amendment No. 
     2013), to change the enactment date.

  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. COATS. Mr. President, I come to the floor today to discuss the 
topic of religious freedom. This issue is an important component in the 
debate on the legislation that we are currently considering, but it's 
also an issue that defines, I believe, who we are as a Nation as well 
as the rights granted to us in the Constitution.
  To paraphrase what Thomas Jefferson said in 1807, for Americans, he 
said, `Among the most inestimable of our blessings' is the blessing `of 
liberty to worship our Creator in the way we think most agreeable to 
His will; a liberty deemed in other countries incompatible with good 
government and yet proved by our experience to be its best support.'
  From Jefferson's time to today, freedom of religion has been a core 
American principle, a principle our founding fathers put their lives on 
the line for and a principle that generations of Americans in uniform 
have defended so that we can all enjoy this cherished freedom. 
Unfortunately, this principle of religious freedom is under attack 
across our country today. Though in many cases these attacks may be 
subtle, make no mistake, we are seeing the free exercise of religion 
and freedom of speech constrained and restricted.
  We have seen it in the administration's rule regarding church-
affiliated groups to facilitate insurance coverage that includes 
contraceptives and abortion-inducing drugs despite their deeply held 
religious beliefs.
  I think about my alma mater, Wheaton College in Illinois, which is a 
school from which Billy Graham graduated years ago.
  I appreciate the Senate's Majority Leader and Minority Leader's 
reference to his life as he celebrates his 95th birthday. Billy Graham 
had an important impact on my life and millions of people--not just 
Americans, but people around the world. I appreciate the recognition 
that has been given here by our leaders.
  I also think about Indiana-based University of Notre Dame. Despite 
conscious objections and the clearly outlined standards of these 
colleges and universities--the College's Community Covenant at Wheaton 
and the values of the University of Notre Dame--they have been told by 
the government that they are not considered religious institutions and 
must comply with the Health and Human Services Mandate.
  Let me describe a little bit the thread of faith that runs through 
every aspect of a school like Wheaton College and the values of faith 
expressed frequently in a number of ways by the University of Notre 
Dame. If you tune into the Notre Dame football programs on Saturday 
afternoons, as I do every week, or intend to do, you will see an ad by 
Father Jenkins, President of Notre Dame, that talks about the component 
and element of faith that is essential to the beliefs of what the 
University of Notre Dame is trying to address through its education 
process.
  Whether it is professors or students, administrators or 
groundskeepers or others that thread of faith and values runs through 
the university and throughout my alma mater as well. There's such a 
thing as, it's been described by former president of Wheaton College, 
as umbrella universities--those [universities] that have a faith 
component perhaps in a theological school or a religious program. The 
thought is well, certainly, they can exercise their constitutional 
rights guaranteed by the First Amendment. But what about the doorkeeper 
or receptionist at the administration building or the coaches of the 
teams or the professors? Sure the professor of theology and the 
professor of religion, but what about the professor of science, 
professor of economics, or the professor of business, how does that 
apply? Or what about the groundskeepers or those who serve the meals in 
the cafeterias to the students? Well, there are those types of 
institutions, and there is an argument that it is not systemic, it is 
not the thread that runs through every aspect of the program. And this 
applies to homeless shelters and faith-based institutions across 
America. Some are secular related. Some are a mix of secular-religious. 
And some are systemically faith-based where a thread of faith runs 
through every aspect of their program or the institution.
  So what we're talking about here is a situation where institutions of 
education, like Wheaton College and the University of Notre Dame, or 
faith-based institutions reaching out through homeless shelters, food 
kitchens, any number of programs provided by faith-based institutions 
or individuals engaged in this that believe that the thread of faith is 
important to their success and that's why they're there.
  These faith-based institutions have been told by the government that 
they're not considered religious institutions and must comply with the

[[Page S7895]]

Health and Human Services Mandate. Last year administration officials 
said they worked out a compromise on this rule, but the fact is the 
mandate still exists. These institutions should not have to facilitate 
insurance coverage for products that are counter to their moral 
beliefs. In my opinion, to require faith-based institutions to betray 
the fundamental tenets of their beliefs and accept this violation of 
their First Amendment rights guaranteed by the Constitution is simply 
wrong.
  I think about the health care professionals who have been required to 
participate--required by the government--to participate in medical 
procedures that violate their rights of conscience and their deeply 
held religious beliefs about the meaning of life and when life begins.
  I think about the recent efforts in many States to force churches and 
religious professionals into performing rituals or ceremonies that run 
counter to their faith.
  So what is at stake here is of extreme significance. Established in 
our nation's founding days and sustained for over 200 years, this 
principle is at the very core of our system of government, as Jefferson 
was trying to say.
  We can't pick and choose when to adhere to the Constitution and when 
to cast it aside for cheap political prerogatives. We must consistently 
stand for these timeless constitutional granted privileges and rights.
  The legislation before us raises very serious concerns regarding 
religious freedom. The so-called protections from religious liberty in 
this bill are vaguely defined and do not extend to all organizations 
that wish to adhere to their moral or religious beliefs in their hiring 
practices.

  For example, the religious beliefs of faith-based childcare providers 
and small business owners would be disregarded under this legislation. 
Faith-based daycare providers could be forced to hire individuals with 
views contrary to the faith and incorporated values of these daycare 
providers. Do we really want to support policies that discriminate 
against an employer's religious beliefs and require employers to hire 
individuals who contradict their very most deeply held religious 
beliefs?
  This bill also would allow employers to be held liable to workplace 
environment complaints opening the door to the silencing of employees 
who express their deeply held beliefs. This possibility runs counter to 
everything America stands for in the realm of free speech.
  Now I know there have been some efforts, including amendments offered 
by my colleagues, Senator Toomey from Pennsylvania and Senator Portman 
from Ohio, to clarify the existing religious protections in this bill. 
Some Members believe that these amendments go too far. I frankly 
believe they don't go far enough. However, they are at least a first 
step, and I will support these two measures not to make a bad bill 
better, but to highlight the importance of the freedom of religion 
principle involved in this legislation.
  Let me quote from Jay Sekulow, Chief Counsel for the American Center 
for Law and Justice. He wrote this:

       A steadfast commitment to one's religious scruples was once 
     lauded as a virtue, but in the current public discourse, 
     religious objectors are often chastised as seeking special 
     treatment that would impose their values on others. The 
     apparent unpopularity of the expression of religious values 
     through actions or words brings to mind Justice Oliver 
     Wendell Holmes' observation that: ``We should be eternally 
     vigilant against attempts to check the expression of opinions 
     that we loathe and believe to be fraught with death and the 
     Supreme Court's more recent reminder that the First Amendment 
     protects expression, be it of the popular variety or not.'''

  The Supreme Court's recent reminder and I quote again, ``the First 
Amendment protects expression, be it of the popular variety or not.'' 
It is an important thing for us to remember from a very respected 
Supreme Court judge.
  I oppose discrimination of any kind, and that includes discrimination 
against individuals or institutions for their faith and values, which 
often gets lost and has been lost in this discussion. So there's two 
types of discrimination here we're dealing with and one of those goes 
to the very fundamental right granted to every American through our 
Constitution, a cherished value of the freedom of expression and 
religion. And I believe this bill diminishes that freedom.
  So I feel it's vital for this body to stand up for our country's 
long-standing right to the freedom of religion and speech. For these 
reasons, I am not able to support this current legislation, and I hope 
my colleagues would stand with me in protecting our religious freedom 
and oppose this legislation.
  Mr. President, with that, I yield the floor and suggest the absence 
of a quorum.
  The PRESIDING OFFICER. Will the Senator withhold his suggestion for 
the absence of a quorum.
  Mr. COATS. I will, and I apologize for not recognizing my colleague, 
who is standing in the back row. My eyesight is not as good as it used 
to be.
  Mr. FRANKEN. I can see my colleague from Indiana.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. FRANKEN. Mr. President, I rise today in strong support of the 
Employment Non-Discrimination Act.
  In many towns, cities, and States across our country, it is still 
perfectly legal to fire someone simply because they are gay. One can be 
a hard worker who shows up on time and gets exemplary performance 
reviews, but if a person's boss discovers that he or she is gay or 
transgender or suspects it, he can fire a person for being who they are 
or for whom they love, and there is nothing the person can do about it.
  That is a terrible injustice for Americans who happen to be LGBT. It 
violates the principle that we are all equal under the law. We all 
deserve the chance to work hard and to prove ourselves, regardless of 
our race, color, religion, sex, national origin, disability, age, 
sexual orientation, or gender identity.
  Many Americans do not realize it remains legal to discriminate 
against LGBT Americans in the workplace. In one recent poll, eight in 
ten Americans believe it is already illegal under Federal law to fire 
or refuse to hire someone because of their sexual orientation or gender 
identity. Doesn't that tell us something about how obviously right ENDA 
is?
  The debate we are having in the Senate today is about whether we 
should ensure LGBT Americans don't suffer discrimination in the 
workplace. I have long been a supporter of ENDA, and enacting it into 
law is something we should have done a long time ago. In fact, 17 years 
ago, it came within one vote of passing in the Senate.
  Making ENDA law will be the next significant step in the fight for 
equality for LGBT Americans. After decades of struggle, we have 
achieved a number of huge victories in rapid succession: ending don't 
ask, don't tell; overturning the Federal ban on same-sex marriage 
recognition; the achievement of marriage equality in more and more of 
our States, including my home State of Minnesota.
  While we are debating ENDA in the Senate today, equality in the 
workplace is, in fact, something we achieved in Minnesota over two 
decades ago. In 1993, the Minnesota State legislature amended our 
State's human rights act to protect Minnesota's workers from 
discrimination based on their sexual orientation or gender identity. At 
the time only a few States prohibited discrimination based on sexual 
orientation, and Minnesota was the first State to include protections 
for transgender workers.
  We have had this law in effect now for over 20 years in Minnesota, 
and what has been the result? Well, for LGBT Minnesotans it has meant 
they do not have to live in fear of being fired or discriminated 
against in hiring just because of who they are or because of whom they 
love. That is a big deal.
  But if you are not an LGBT Minnesotan, very little has changed. Some 
people, including House Speaker Boehner, are opposing ENDA because they 
claim it will cause frivolous lawsuits and be bad for business. The 
Minnesota experience shows these fears are unfounded. There has not 
been a flood of lawsuits because the rights of LGBT Minnesotans are 
wisely respected. And with 19 Fortune 500 companies, Minnesota has 
become an ever better place to work and do business. Minnesota is 
basically the same as it was before this law was passed, except that it 
is better because LGBT Minnesotans are free from discrimination at 
work.
  Let me give you one example. Last year, a vice president from General 
Mills--the Minnesota-based company

[[Page S7896]]

that is one of the world's largest food companies and which currently 
employs 35,000 people and makes Cheerios--spoke at a Senate Health, 
Education, Labor, and Pensions Committee hearing about General Mills' 
support for making sure that the same legal protections people have in 
Minnesota are extended to workers all across the United States.
  The General Mills vice president spoke about how the company's policy 
of inclusion has contributed to its innovation and growth. He said:

       Employees who are members of the GLBT community are 
     incredible contributors to our enterprise. Absent their 
     unique perspectives, talents, and gifts, we would be less 
     competitive and successful. Simply said, talent matters. Now 
     more than ever, American business needs to leverage the 
     ingenuity of all sectors for our nation. Discriminatory 
     barriers to top talent just don't make business sense.

  And there are many other large employers headquartered in Minnesota--
Target, Supervalu, U.S. Bancorp, Xcel Energy, Medtronic, 3M, Cargill, 
Best Buy, and many others--who have put in place companywide policies 
against discrimination on the basis of gender identity and sexual 
orientation wherever their other factories or businesses or stores may 
be.
  Minnesota's small businesses have also reported on the positive 
effects of Minnesota's human rights law. For instance, Nancy Lyons is 
the owner of a small 70-person Minneapolis business that develops 
software. Nancy says the protections and peace of mind her employees 
get from not living in fear positively impact every aspect of their 
lives, from their productivity at work to their family lives.
  It is long past time that LGBT employees around the country be 
guaranteed the same rights they have had in Minnesota for 20 years. In 
Minnesota, our law has given LGBT Minnesotans peace of mind and freedom 
from discrimination at work and improved the overall climate in our 
State for those individuals, for families, and for businesses. I look 
forward to the Senate passing this bill, and I hope the House will take 
it up and pass it as well.
  Thank you, Mr. President.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.


                               ObamaCare

  Mr. VITTER. Mr. President, I come to the Senate floor today to urge 
my colleagues again to focus on an important issue in the overall 
ObamaCare debate; and that is how Washington fares under ObamaCare, and 
does Washington live by the same rules, the same laws it passes on the 
rest of America?
  All across the country, as we see daily in news reports, Americans 
are struggling with real issues and real challenges created by 
ObamaCare. We need to fix those issues and those challenges. We need to 
get it right. But at the same time as that is going on in the real 
world, Washington--leaders here--basically get an exemption, a 
carveout, special treatment, a subsidy. That is particularly egregious 
and particularly unfair when ordinary Americans suffer under these very 
real challenges.
  That is why I have introduced my No Washington Exemption from 
ObamaCare bill, and that is why I continue to work hard with many other 
Members--we have significant coauthors here and in the House--to get 
that passed.
  With regard to Congress, the ObamaCare statute actually got it right. 
And with regard to Congress, all we are asking for is that we live by 
the statute, live by the law. That statutory language says clearly that 
every Member of Congress and all of our congressional official staff go 
to the exchanges for our health care and be treated just like other 
Americans going to the exchanges--many of them being forced off plans, 
employer plans they like, and having to go to the exchanges--no special 
treatment, no special exemption or carveout or subsidy.
  The problem is that after the law passed--I guess it was a classic 
case of what Nancy Pelosi said: We need to pass the law in order to 
figure out what is in it--because after ObamaCare passed with that 
specific statutory language, a lot of folks on Capitol Hill read it, 
figured out what was in it, and said: Oh, you know what. We can't have 
this. We can't live with this. And then they furiously started lobbying 
for a way out, for an end-run around: And sure enough, they got it. The 
Obama administration issued a special rule for Congress to take all of 
that financial sting out of the provision.
  The rule basically said two things, both of which I think are 
outrageous and contrary to the statute itself. First of all, it said: I 
know the law says all official staff go to the exchanges. But we don't 
know who that is. We don't know who official staff are. So we are going 
to leave it up to each individual Member of Congress to designate who 
is official staff who must go to the exchanges for their health care.
  Well, I think that is flat-out ridiculous. The law, the statute, 
clearly says all official congressional staff. To create this 
opportunity for exemption, where each individual Member designates 
staff as official or not, is silly. That designation, by the way, 
happened last week, and some Members have actually said: None of my 
staff is official. I have no official staff for purposes of this 
section, so none of my staff go to the exchanges. That is outrageous. 
Other Members said: Well, my personal office staff is official but 
committee staff, no; leadership staff, no. That is outrageous too.
  The second thing this illegal rule did to get around the impact of 
this provision of ObamaCare is to say: Well, for Members and staff who 
do go to the exchanges, they get to take with them a huge taxpayer-
funded subsidy--a big subsidy no other American at that income level 
gets. That is not in the ObamaCare statute either, and that is contrary 
to the ObamaCare statute. In fact, that specific language was 
considered for inclusion and was not put in--proof that was not the 
intent of that section of ObamaCare.
  I believe that is outrageous as well and defeats the whole purpose of 
the section, which is to make sure Members of Congress and our staff 
walk in the same shoes as other Americans, 8 million-plus of whom are 
being forced off coverage they like and being forced on to that 
ObamaCare exchange.
  That is why I have joined with others to push this No Washington 
Exemption from ObamaCare language.
  As I mentioned, one key element is this election that this illegal 
rule creates, where every individual Member of Congress determines who 
on their staff goes to the exchange or does not. As I said, in some 
cases, Members say: I have no official staff. Nobody has to live by the 
law, nobody has to live by this mandate, which is particularly 
outrageous.
  To add insult to injury, these individual decisions by every Member 
of Congress are not public. This is all secretive. This is hidden from 
the public. Some Members have said what they are doing through the 
press, but the full information, each individual Member's election in 
this regard is not public.
  So as soon as that loophole was created, I filed another bill, 
another piece of legislation, that simply says we are going to make all 
of these decisions public. Everybody has a right to know how each 
Member of the Senate, how each Member of the House is handling the 
situation. That is my Show Your Exemptions bill, which I filed about 10 
days ago.
  I think it should be a no-brainer. I think it should be beyond 
debate. Whatever you think about the underlying issue, whatever you 
think about ObamaCare, shouldn't this decision of each individual 
Member be made public? Shouldn't the public have a right to know? That 
is why I filed this bill, and that is why I am pushing for a vote on 
this bill.
  Getting a vote on that proposal will be a key priority of mine, 
particularly when we consider the drug compounding bill in the near 
future and when we consider the Department of Defense authorization 
bill. It is going to be my key priority: to get a simple vote on that 
simple proposal. Again, I believe that should be a no-brainer, that 
this information--which does involve how taxpayer dollars are being 
treated, which does involve how congressional offices are handling the 
situation--that information one way or the other be made public. You do 
not need to editorialize about it. Everybody can make up their own mind 
about what they think about the underlying issue, about what they think 
about ObamaCare, but shouldn't that information be made public?
  We need to vote on that proposal, and I urge us to move and agree 
quickly to

[[Page S7897]]

have a vote, either in the context of the drug compounding bill or the 
Defense authorization bill over the next few weeks. Those are probably 
going to be the only opportunities for a vote this calendar year. I 
think it is certainly fair and reasonable to get that vote, have the 
American people be able to see that information, and that is the only 
opportunity I am likely to have in the Senate this calendar year.
  Again, whatever my colleagues think about the underlying issue, 
certainly whatever we all think about ObamaCare, I would hope we can 
all agree--that election, that information, how each individual Member 
of the Senate, each individual Member of the House, handles the 
situation should be made public. It certainly involves public policy 
and taxpayer dollars and how we run Congress. It should be made public.
  I urge my colleagues--Republicans and Democrats--to unite around that 
reasonable, commonsense proposal and get that information out to the 
public, as it should.
  With that, I yield the floor and suggest the absence of a quorum.
  Excuse me. I withhold my suggestion of the absence of a quorum, but I 
do yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.


                            Budgetary Waste

  Mr. FLAKE. Mr. President, after weeks of budgetary wrangling and a 
government shutdown that had the country on edge, last week marked the 
beginning of the bicameral budget conference. I commend my colleagues 
who are meeting on the issue and are trying to reconcile the goals of 
wildly different budget outlines. That is no easy task. I think we all 
know that. However, we all know that shoveling more IOUs into our $17 
trillion debt is simply unsustainable.
  No matter on which side of the aisle we sit, I hope we can all agree 
that America's present fiscal trajectory is untenable and that our 
Nation's future depends on turning these economic issues around. There 
is no secret formula. At a minimum, Congress should abide by the budget 
control framework which has produced some of the most meaningful 
discretionary spending reductions in decades. Beyond that, we have to 
slow the rising costs of entitlement programs in order to achieve 
significant long-term deficit reduction.
  Sadly, some seem fixated on spending beyond the BCA's cap for next 
year. Some of our colleagues have suggested that the spending 
discipline we achieved with the sequester should be replaced with 
revenue increases. Now, we all know that sequestration is a blunt 
instrument for reducing spending, but this desire to replace it by 
driving up taxes is based on an incorrect assessment. Washington has a 
spending problem, not a revenue problem. In 2013 the government spent 
some $3.5 trillion. We are on track to spend another $3.7 trillion in 
2014. Before anyone starts to look at tax hikes, we should realize that 
we are nowhere near cutting our budget to the bone. In fact, there is a 
lot of fat left in a lot of agencies. These budgets deserve to get the 
knife. But do not just take my word for it. The administration, our 
colleagues in the Congressional Budget Office, the Government 
Accountability Office, and numerous concerned-taxpayer organizations 
have also posed examples of wasteful spending that should be 
eliminated.
  If the sequester's bluntness has taught us anything, it is that 
Congress ought to jump at the chance to make smart, surgical spending 
cuts. To that end, I intend to take 5 minutes each week for the coming 
weeks to highlight some of the wasteful spending programs that still, 
even in times of economic belt-tightening, lurk in our Federal budget.
  Today I would like to highlight some of the programs in the U.S. 
Department of Agriculture. With a budget request of $146 billion in 
2014, the USDA rounds out the top five most expensive Federal agencies. 
Many programs within the USDA provide valuable services, including meat 
inspection, crop data collection, and managing the agricultural safety 
net. But the USDA also has its own agency-level homeland security 
department, pays for Sunkist to advertise overseas, and underwrites an 
astonishing number of zero-down-payment suburban home mortgages. That 
is the USDA.
  The most obvious place to realize significant savings in the USDA is 
with the Federal Crop Insurance Program. Here is a program in which the 
taxpayers cover the majority of the risk. It pays private insurance 
agents commissions to sell and administer individual policies. It funds 
the oversight of the program and, on top of all of that, subsidizes 
policyholders' premiums. That is a pretty good deal if you can get it.
  In 2012 taxpayers spent more than $7 billion to subsidize this 
program. In 2010--one of the better recent crop years--when the USDA 
took in a record $2.5 billion more than it paid in claims, the Federal 
Crop Insurance Program still cost taxpayers $3.7 billion. That is 
because taxpayers foot the bill for roughly two-thirds of each premium, 
leaving the policyholder only to cover the remaining third.
  Congress could reap significant savings just by reducing the 
percentage the taxpayers have to spend to subsidize these premiums. In 
fact, according to CBO, simply rolling back the percentage of taxpayer 
subsidy in the program to pre-2000 levels would shave more than $40 
billion in spending from the pre-2013 farm bill baseline. To that end, 
I have introduced the Crop Insurance Subsidy Reduction Act, which would 
do just that.
  There are a number of other places at USDA where Congress can find 
savings. Surely one of those is USDA's own Office of Homeland Security, 
created in the post-9/11 security glut. This department is supposedly 
responsible for providing oversight and coordination for USDA's 
preparation and response to matters of homeland security importance. A 
$1 million program such as this may be easily lost in the President's 
$4 trillion budget, but there is an entire agency in the Federal 
Government tasked with the same objective and funded with the tens of 
billions of taxpayer dollars.
  Another place to find savings at USDA is in the Market Access 
Program, which has spent $1.4 billion since 2006 and looks to collect 
another $200 million in taxpayer funds in 2014. This program has spent 
billions of tax dollars on overseas advertising campaigns that benefit 
some of the most deep-pocketed corporations around, including 
McDonalds, Nabisco, Welch's Foods, and Sunkist.
  When it comes to questionable budgetary items at USDA, the single-
family housing direct and guaranteed loan program takes the cake. This 
obscure but growing home loan program writes and guarantees mortgages 
for low- and moderate-income families in rural and suburban areas. 
These loans are 100 percent financed and require no down payment. While 
home buyers in big cities are not eligible for these loans, residents 
of many fast-growing towns and suburbs--some within 30 miles of this 
very building--are receiving those kinds of subsidies. Do not be fooled 
into thinking these loans are for rustic farmhouses either. They are 
specifically designed to finance your standard home, and, inexplicably, 
the USDA discourages buyers from using them to purchase farms or 
ranches. This is the USDA discouraging us from using these subsidies to 
purchase farms and ranches but, rather, regular homes.
  Since 2006 the USDA--remember, that is the Department of 
Agriculture--has spent nearly $10 billion on single-family housing 
direct loans. While it did not show up in the budget, home loan 
guarantees by the USDA have also put taxpayers on the hook for another 
$118 billion. The agency has requested another $320 million to fund 
single-family housing direct loans in 2014 and plans to issue another 
$24 billion in guarantees. To put the figures in perspective, the 
entire Department of Housing and Urban Development submitted a budget 
request of $47 billion.
  When we have such egregious examples of waste, why should we demand 
more of the taxpayers' money?
  In the coming weeks I hope my colleagues on the budget conference 
committee, along with the President and Members of Congress and various 
fiscal organizations, will consider some of the proposals I am offering 
to eliminate this wasteful spending. A good start would be sowing the 
seeds of fiscal restraint at the Department of Agriculture.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.

[[Page S7898]]

  Mr. MERKLEY. Mr. President, I ask unanimous consent to have a short 
colloquy with the distinguished Senator from Arizona and the Senator 
from Wisconsin.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MERKLEY. Mr. President, I appreciate so much the comments of my 
colleague from Arizona on the challenges inherent in getting our budget 
under control. I particularly appreciated over the last few days the 
conversation we have had about the Employment Non-Discrimination Act.
  I would like to say that the Senator from Arizona has brought 
particular value in expressing concerns about how we make sure 
businesses have the guidance they will need to implement this act 
effectively, particularly as this act embraces an area--that is, 
transgender discrimination--that was not part of the act considered in 
the House of Representatives.
  Mr. FLAKE. Mr. President, I appreciate the work the Senator from 
Oregon did with my office this week to try to arrive at language we 
could put into an amendment. We were not able to get that amendment.
  When I voted for ENDA in the House in 2007, as the Senator mentioned, 
it did not contain the provisions with regard to gender identity. Those 
added provisions have concerned me in terms of potential costs of 
litigation or compliance. I still have those concerns. I hope that as 
we work through the process, as this bill moves on to the House, we can 
find ways to make sure employers can implement these provisions in a 
way that is reasonable and proper.
  I also thank the Senator from Wisconsin for working with my office on 
these issues as well. I have a better appreciation for what needs to be 
done and what we can do with this legislation as it moves through the 
process.
  I yield to the Senator from Wisconsin.
  Ms. BALDWIN. Mr. President, I would like to express my appreciation 
and gratitude to the Senator from Arizona for his very thoughtful and 
careful approach to considering this legislation. I enjoyed working 
with the Senator during our days in the House of Representatives and 
remember well the vote the Senator cast back in 2007 after great study 
and reflection.
  I think we find ourselves in the position we are in right now, with 
an expanded bill that has protections for both sexual orientation and 
gender identity, because of the leadership of the Senator from Oregon.
  To the point of the concerns that have been raised in this colloquy, 
there has been a really exhaustive amount of research done on those 
States that have passed similar pieces of legislation at the State 
level and how they chose to move forward on employment protections on 
the basis of sexual orientation and gender identity. I have discussed 
with the Senator from Oregon on numerous occasions the approach most 
States have taken and the success these bills have had in helping to 
keep all of our employment decisions based on work ethic, character, 
and loyalty, and the subjects on which they should be focused.
  I look forward to working on this measure in the future, and I thank 
both the Senators from Arizona and the Senator from Oregon for their 
focus on ENDA.
  Mr. MERKLEY. Mr. President, I look forward to that conversation as 
well. The State of Wisconsin was one of the first or maybe the first in 
the Nation to bring an end to workplace discrimination. Oregon has a 
fully inclusive bill that has worked very well. We have worked out a 
great partnership with the businesses of Oregon in making sure there is 
satisfactory guidance for them. I look forward to bringing that 
experience into this conversation about the concerns of the Senator 
from Arizona. I echo the appreciation for the thoughtful dialog we have 
had over the past few days and look forward to future dialog as we 
continue to try to make this bill ending discrimination in the 
workplace work well for businesses across the Nation and certainly for 
the millions of LGBT Americans who will have the opportunity to break 
these chains of discrimination and more fully participate in our 
national economic life.
  Mr. FLAKE. I thank both the Senator from Oregon and the Senator from 
Wisconsin for working with me and look forward, as this process goes 
on, to making sure the provisions in the legislation work for employers 
as well as for employees. I appreciate the work and the assistance the 
Senator has given our office. I thank the Senator.
  Mr. MERKLEY. I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Women's Rights

  Mrs. MURRAY. Mr. President, I thank Senator Blumenthal and Senator 
Boxer, who will be joining me in this conversation in a few minutes.
  I think that now more than ever, after we have emerged from this very 
damaging and completely unnecessary government shutdown, the American 
people want us to focus on jobs and the economy. That is what every 
poll says, that is what all of our constituents say, and that is 
absolutely what is needed at a time when families continue to struggle 
to make ends meet.
  Instead of working with us across the aisle on jobs and economic 
growth, it seems as if some Republicans are now focused on something 
else entirely--politics. In fact, in a short while, the senior Senator 
from South Carolina is going to be introducing a bill that is blatantly 
political, a bill that not only undermines a woman's access to her 
doctor but also restricts an array of reproductive health services.
  Today we wish to make it abundantly clear; that is, that this 
extreme, unconstitutional abortion ban is an absolute nonstarter. It is 
going nowhere in the Senate and those Republicans know it.
  I want to think that over the last 40 years, since the historic 
decision of Roe v. Wade, we have moved on from debating this issue. I 
wish to think that after four decades many of those who want to make 
women's health care decisions for them have come to grips with the fact 
that Roe v. Wade is settled law. After all, the many signs of progress 
are all around us.
  This year a record 20 women are serving in this body. One year ago 
yesterday women's power and voice at the ballot box was heard loudly 
and clearly. In fact, last year when Republican candidates running for 
office thought that rape was a political talking point, that idea and 
their candidacies were swiftly rejected, thanks in large part to the 
voices of women. Only this week we saw women in Virginia resoundingly 
reject the Republican candidate for Governor and his misguided and 
outdated agenda for women's health.
  Sometimes it is tempting to think that times have indeed changed, 
that maybe politicians have realized that getting between a woman and 
her doctor is not their job, that it is possible that rightwing 
legislators have a new-found respect for women's health care.
  The truth is that the drumbeat of politically driven extremist and 
unconstitutional laws continues to get louder. Apparently some of our 
colleagues on the other side of the aisle want to make some noise about 
this so that their adoring audience of rightwing radio hosts, 
columnists, and activists is satisfied.
  In fact, here is an example of how blatantly political this 
restrictive ban is. One of the actual participants in the press 
conference to introduce their bill today had this to say to Politico 
about the strategy behind doing this. She said: ``It's a much better 
thing to be campaigning on rape and incest these days.''
  That is an insult to women everywhere, and it is most certainly not 
what the Senator from South Carolina has called ``a debate worthy of a 
great democracy.''
  This is a debate we have had. A woman's access to her own doctor is 
settled law. We are not going to let attacks on Roe v. Wade such as 
this one change that.
  I wish to remind all of those who are even considering supporting 
this bill that real women's lives and the most difficult health care 
decisions they could ever possibly make are at stake.
  I wish for us to consider the story that Judy Nicastro from my home 
State shared so bravely with the New York Times last summer. In an op-
ed she wrote only days after the House passed a bill that was virtually 
identical to the one that is being introduced today, Judy talked about 
being

[[Page S7899]]

faced with every pregnant woman's worst nightmare. In describing the 
news that one of the twins she was carrying was facing a condition 
where only one lung chamber had formed and that it was only 20 percent 
complete, Judy captured the anguish that countless women in similar 
positions have faced. She wrote:

       My world stopped. I loved being pregnant with twins and 
     trying to figure out which one was where in my uterus. 
     Sometimes it felt like a party in there with eight limbs 
     moving. The thought of losing one child was unbearable.

  She went on to say:

       The M.R.I., at Seattle Children's Hospital, confirmed our 
     fears: the organs were pushed up into our boy's chest and not 
     developing properly. We were in the 22nd week.

  Under the bill that is being introduced, the decision Judy ultimately 
made through painful conversations with her family and consultation 
with her doctors would be illegal.
  The decision to make sure, as she put it, ``our son was not born only 
to suffer'' would be taken from her and given to politicians.
  I am here to provide a simple reality check. We are not going back. 
We are not going back on settled law. We are not going to take away a 
woman's ability to make her own decisions about her own health care and 
her own body. Women are not going back to a time when laws forced them 
into back alleys and made them subject to primitive and unsanitary 
care. Senators such as me, Senator Boxer, Senator Blumenthal, and 
others who join me in opposing this effort are not going to go 
anywhere.
  Advocates and doctors who treat women every day and know that their 
health care must be protected are not going to go anywhere. Women who 
continue to believe that their health care decisions are theirs alone 
are not going anywhere.
  By the way, the Constitution is not going anywhere. Therefore, this 
bill is not going anywhere. This bill, as attacks on Roe v. Wade before 
it, will eventually be lost to history. But millions of American women 
will not forget. I welcome our colleagues on the floor to this debate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. BLUMENTHAL. I thank my colleague from the State of Washington for 
her eloquence and leadership on this issue, as I do my colleague from 
California. She has been steadfast and strong in support of a woman's 
right to make choices about reproductive rights. She is absolutely 
right; we are not going away.
  This bill that will be introduced later today from our colleague from 
South Carolina--as much as we respect him--is a nonstarter because it 
is nonsensical and unconstitutional. This bill was passed by the House 
of Representatives earlier this year. We could not have been clearer 
then, and we should be very clear now, that it is inappropriate, 
unwise, and unfair. It remains so today and will be so for as long as 
we are here.
  This bill essentially leaves any woman who needs an abortion for 
health reasons--and I stress, for health reasons--after 20 weeks of a 
pregnancy with no options--none. It punishes doctors with up to 5 years 
in prison for providing a service that the doctor believes, in his or 
her professional judgment, in his or her medical opinion, is best for 
her and her family. Those decisions are what the Constitution protects, 
what Roe v. Wade guarantees, what the right of privacy preserves in the 
right to be left alone.
  Quite simply, this bill is bad for women, and it criminalizes medical 
professionals who would try to do what is right. I have a long history 
in law enforcement, and this sort of ban, which would leave women in 
completely desperate circumstances with no options is shortsighted, 
misguided, and illegal. We should not be here talking about proposals 
that would degrade and disgrace the Constitution, but about job 
measures, economic growth bills, and measures to solve the immense 
challenges that confront us in dealing with budget issues. I thank the 
Senator from Washington State for the great work that she is doing on 
those issues.
  We should be debating the issues that concern and confront the 
American people at this historic challenging time--not a measure that 
will be struck down by the courts because it is so plainly 
unconstitutional and so clearly bad policy--not only for women but for 
men, families, and for all of us.
  We have seen bill after bill in recent times stalled by disagreements 
over health care. We have seen the Federal Government shut down over 
health care. Now we see another legislative attempt to win, 
essentially, political points at the expense of risking the health and 
welfare of women and children in this country. The attack on women's 
health care must stop.
  We are here in the midst of a busy legislative session to restate the 
fact that this bill is going nowhere. My colleagues and I will not 
allow this bill to put women's lives at risk, and to put their health 
care in jeopardy with politically motivated attempts at destroying 
constitutionally protected rights. That is why we are elected to this 
body, to take a stand and speak out, to protect the people who are most 
vulnerable, and to make sure that women who are at risk can be allowed 
to make personal private decisions about their health and their bodies 
without obtrusive interference from the government.
  These decisions should be made by women, their families, the medical 
profession, and whomever else they wish to consult, not by politicians.
  I yield the floor for my colleague from California
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. It is very good to see the Presiding Officer in the 
chair.
  Since the Senator has arrived, we have cast some landmark votes for 
laws that are so critical and for candidates who are so critical. We 
are about to have a moment in history where we are going to expand 
opportunities for the LGBT community, expand protection for them so no 
longer will they face fear in the workplace.
  If we have an overwhelming vote--which I hope we will have--it will 
send a message to Speaker Boehner that he should join with us. After 
all, what is the purpose that we should serve here? It is really making 
life better for people. It certainly is protecting our people.
  This leads me to the reason I am here at the request of Senator 
Murray. It is because we need to speak out against the bill that will 
shortly be introduced. It is ironic, because as we are about to end 
discrimination on a whole group of worthy people, this bill attacks 
another group of people, the majority of this country, women.
  We are here to say that the extreme and dangerous 20-week abortion 
ban is not going anywhere in the Senate--not on our watch. Anyone who 
knows this knows we mean what we say and say what we mean.
  The American people continue in election after election to reject the 
war on women. They did it in race after race in the 2012 cycle, and 
they did it in these local and State-wide races only a couple of days 
ago.
  The American people, regardless of party, want us to focus on issues 
that make a difference in their lives, such as creating jobs, reforming 
our immigration system, keeping college affordable for students, and 
rebuilding an infrastructure that is failing us. They don't want to 
take us back to the last century and open up battles that have long ago 
been fought in 1973.
  I see my friend from Iowa, a real champion of Roe v. Wade, a decision 
that was made by the Court that was a very tough decision. They really 
did take a moderate view of balancing all of the interests.
  We have a bill being introduced today that has been shopped around by 
the most extreme elements in our country that would essentially say Roe 
v. Wade doesn't make any difference, and it opens up a direct assault 
on women's health, a direct assault on Roe v. Wade, a direct assault on 
doctors.
  It is a radical bill. It is an abortion ban. It offers no health 
exception, no help for women facing cancer, facing kidney failure, 
facing blood clots or other tragic complications during a pregnancy, no 
exception for rape or incest when folks are too scared to report that 
they were raped or they were a victim of incest. It throws trusted 
doctors into jail for 5 years simply for providing needed health care 
to their patients.
  I wish to tell you who opposes this: the American Congress of 
Obstetricians

[[Page S7900]]

and Gynecologists. They said that these restrictions are ``dangerous to 
patients' safety and health.''
  I want to speak about Judy Shackelford. Four months into her 
pregnancy, she developed a pregnancy-induced blood clot in her arm. The 
only guarantee that she wouldn't die and leave behind her 5-year-old 
son was for Judy to end that pregnancy. She and her husband made that 
very difficult decision.
  No Senators were in the room when she made that decision with her 
husband. No Governor was in the room. No President was in the room. 
This was a personal decision she made with her husband, her god, and 
her doctor. That is how it ought to be. If a family decides they are 
going to save the life of their mom, that should be respected.
  Christie Brooks of Virginia, when pregnant with her second child, 
after her 20-week ultrasound found out that her daughter would be born 
with a severe structural birth defect and the baby would suffocate at 
birth. She made the incredibly difficult decision to end that 
pregnancy. She wouldn't be allowed to do that under this radical ban.
  We need to decide who we stand up and fight for. Is it some 
ideological rightwing agenda or is it for the people, the families, the 
loving families that we represent?
  What is best for them? That is it.
  So we are going to stop this dangerous bill. We are going to stop 
this dangerous attack on women in its tracks. We are sending a clear 
message--and I thank Senator Murray for organizing us today--that we 
will protect women and their families across America.
  I thank the Chair. I yield the floor. I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. TOOMEY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. TOOMEY. Mr. President, I rise today to address an amendment I 
have pending on the ENDA bill which we will vote on soon. This is an 
amendment I have offered on my own behalf and that of Senators Flake 
and McCain, who have joined me in this effort, and I thank them for 
that.
  It occurs to me that sometimes in our work a tension can arise 
between important competing American values, and two vitally important 
American values are, I believe, somewhat in tension in some aspects of 
this bill. First, one great enduring and important value for all 
Americans is equality. This bill today clearly makes a strong stand for 
greater equality.
  I believe, and I think most Americans share the view, that every 
individual is entitled to dignity and respect and fairness, and that 
individuals ought to be judged based on their merits, on their 
character, and on their abilities. A person's sexual orientation is 
irrelevant to their ability to be a good doctor or engineer or athlete 
or a Federal judge. That is why I have supported acknowledging that 
reality.
  I supported 17 years ago, in the writing of the charter of the city 
government of Allentown, a provision that would ban discrimination on 
the basis of sexual orientation in the hiring for that city. I 
supported an end to don't ask, don't tell, because I thought it was an 
inappropriate infringement on the freedom of gay and lesbian persons 
serving in the military. I believe there are more legal protections 
that are appropriate to prevent employment discrimination based on 
sexual orientation. So these are an important set of values.
  Another obvious and vitally important American value is freedom, and 
particularly religious freedom. The First Amendment guarantee of the 
free exercise of religion means that religious groups, even in the 
course of secular services, can, for instance, choose to hire employees 
who agree with their religion, employees who will promote that 
religion. And of course, the First Amendment applies even when we don't 
necessarily agree with the views of that religion or that faith.
  What we have tried to do in this legislation and in other context is 
to strike an appropriate balance between the tension that arises 
between these sometimes competing values. The sponsors of this bill 
have made a very thoughtful, credible effort to strike that balance. In 
fact, the sponsor of this bill and I agree on what at least an 
important aspect of that important balance ought to look like, and 
specifically I believe the agreement is that religious institutions, 
including those engaging in some secular activities, should be exempt 
from the requirements of this bill if it violates the tenets of their 
faith.
  The goal of my amendment is to simply make sure the bill actually 
achieves what the drafters intended. The Senator from Oregon, who is 
the chief sponsor of the bill, has stated correctly, in terms of its 
intent, that the bill ``broadly exempts from its scope houses of 
worship as well as religiously affiliated organizations.'' This 
exemption, which covers the same religious organizations already 
exempted from the religious discrimination provisions of title VII of 
the Civil Rights Act of 1964 should ensure that religious freedom 
concerns do not hinder the passage of this critical legislation.
  Other groups that are advocates for this legislation have similarly 
observed that the provisions of title VII would ensure the exemption of 
faith-based institutions. There are examples where circuit courts have 
ruled, in interpreting title VII of the Civil Rights Act, that 
affiliated organizations would in fact get this exemption. Examples 
include a gymnasium run by the Mormon Church, Christian elementary 
schools and universities, a Presbyterian-operated retirement home, a 
Seventh Day Adventist hospital, a Jewish community center, and there 
are others.
  So I acknowledge it is absolutely true it is the case there are 
Federal courts that have respected the religious freedom of these 
institutions to be exempted from the religious hiring mandates of the 
Civil Rights Act and, presumably, that would apply in the case of ENDA 
because of the way the legislation is crafted.
  The problem that concerns me is that there are other cases where 
other courts have come to a different conclusion, and they have not 
recognized religious institutions the same way. There is a lack of 
uniformity across our country, across the different districts that 
ultimately interpret the application of title VII of the Civil Rights 
Act.
  In fact, over the years, different courts have interpreted the 
language quite differently, and so we have these two problems, in my 
view, if we leave the underlying legislation as it is. One is that 
Americans will live under not two but multiple different standards. The 
12 circuits that apply the title VII exemptions have already adopted 
four different tests for determining whether an institution qualifies 
for the religious exemption.
  The second problem is that employers and workers don't necessarily 
have predictability even within a circuit that has its own test, which 
differs from another circuit. And the reason is the tests themselves 
are somewhat subjective and somewhat unpredictable. They have multiple 
factors. For example, the Third Circuit, which includes my State of 
Pennsylvania, has nine factors; and as the court explained, not all 
factors will be relevant in all cases, and the weight given each factor 
may vary from case to case. The result is that in a single case 
decisionmakers looking at the same set of facts can reach very 
different conclusions.
  In the absence of my amendment, my concern is there will be no 
uniform, predictable national standard for determining when a religious 
entity, a religious organization, is exempt from the bill. There are a 
couple of examples that illustrate my point.
  In a case called the EEOC v. Kamehameha Schools--that is a Hawaiian 
word. My pronunciation may not be correct. This is a 1993 decision--
there were two schools created by a charitable trust to help orphans 
and poor children. The trust instructed ``the teachers . . . shall 
forever be persons of the Protestant religion.'' The schools shall 
provide a good education ``and also instruction in morals.''
  The schools hired only Protestant teachers. They held themselves out 
as Protestant schools. They required all the students to take religious 
classes. They offered Bible studies and worship services, and they had 
a cooperative relationship with one specific Protestant church.

[[Page S7901]]

  The district court found the schools were religious and, therefore, 
they were covered and they qualified for the exemption. But the Ninth 
Circuit Court, considering the exact same set of facts, found the 
opposite and decided the schools were secular. The Ninth Circuit 
acknowledged the schools' original principle was providing religious 
instruction, but they essentially ruled that since some students were 
not Protestant and since the schools offered courses that were not 
religious in nature--the schools taught math and they taught social 
studies--for those reasons they would not qualify for the exemption and 
the schools were required to hire non-Protestant teachers.

  Another example--and I only have two--is a Methodist orphanage 
founded by the Methodist Church. The board of trustees were Methodist 
and they had close ties to the Methodist Church. The district court 
eventually held that many of the orphanage's day-to-day activities of 
caring for children were simply not necessarily religious, and so the 
home was not exempt. But initially, the district court had actually 
found for the Methodist orphanage. It was the Fourth Circuit that 
reversed it, sent the case back with instructions they reconsider this.
  The district court had an interesting comment in this. It stated its 
opinion by declaring that it remains somewhat confused as to the proper 
interpretation, but it would do its best. So if a Federal judge can't 
tell what the test is, how could workers? How could an employer? How 
could an institution based on faith?
  My amendment really is a modest attempt to ensure the bill actually 
achieves what I believe its authors and sponsors and supporters intend. 
It would continue to guarantee equality to workers, but it would 
protect religious groups' rights to the free exercise of their 
religion. And it would ensure all Americans would live under the same 
rule, the same formulation, with predictability and certainty. It would 
clarify that ENDA's religious exemption applies to religious hospitals, 
schools, charities, and other organizations that are owned by, 
controlled by, or officially affiliated with a church or religious 
group covered by ENDA's current exemption.
  What this does is simply ensures we get close to striking a good, 
sensible balance between the equality in the workforce that is the 
principle motivation for this bill and the religious freedom I feel 
very strongly about and I think many of my colleagues do as well.
  I want to commend everybody who has put in a lot of hard work on a 
careful and thoughtful effort here, and I hope my fellow Senators will 
join me in supporting this amendment.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, I ask unanimous consent that I be 
permitted to speak for up to 5 minutes in opposition to the Toomey 
amendment and that the Senator from Wisconsin also have 2 minutes to 
speak in opposition.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, over the course of this debate, we have 
documented the tremendous business community support for this bill, 
including over 100 major companies. A key reason for that support is 
that ENDA is closely modeled on title VII of the civil rights law. 
Employers are familiar with the law, they understand how to comply with 
the law, and it provides certainty.
  The many Fortune 500 companies that have employment nondiscrimination 
policies in place have modeled their policies on the nondiscrimination 
requirements of title VII. Unfortunately, by proposing an entirely new 
definition of businesses that would qualify for an exemption from the 
Employment Non-Discrimination Act, this amendment calls into question 
that very certainty. ENDA already exempts the same religious 
organizations that qualify for an exemption under title VII of the 
Civil Rights Act.
  Under current law, the exemption includes not only houses of 
worship--churches, synagogues, and mosques--but also religious schools 
and religiously affiliated hospitals. The exemption in this bill passed 
the House of Representatives on a broad bipartisan basis, 402 to 25, in 
2007.
  In determining what organizations should qualify for religious 
exemption, most courts have also said that where the primary activity 
of the organization is commerce or profit, despite strongly held 
religious beliefs by the owners, the organization may not discriminate 
in hiring. That is what this amendment, I believe, seeks to change. 
This amendment would allow entities that are ``officially affiliated'' 
with a religious society to discriminate on the basis of sexual 
orientation and gender identity. This is a new term that is undefined 
in the text of the amendment and could lead to thousands of for-profit 
businesses being allowed to discriminate.
  Some examples that have been suggested could qualify for the 
exemption could be a private employer whose only ``affiliation'' with a 
religious society is receiving a regular newsletter from that society 
or a private employer who sponsors a fundraiser for a religiously 
affiliated nonprofit or a private employer who provides goods and 
services to a religious organization. Again, this amendment would open 
the floodgates for all kinds of lawsuits. Courts would be inundated 
trying to figure out what does ``officially affiliated'' mean because 
there is no definition to that. The definitions we had before provide 
that kind of certainty to our business owners.
  Our Nation's civil rights laws require those who participate in 
commercial activity must adhere to the broad principles of fairness and 
equal treatment. In potentially allowing secular commercial businesses 
to discriminate in hiring and other employment practices on the basis 
of sexual orientation or gender identity, this amendment threatens to 
gut the fundamental premise of ENDA that all workers should be treated 
equally and fairly.
  So while I urge my colleagues to oppose this amendment, I wish to 
note that the sponsor of the amendment supported beginning debate of 
the bill. His amendment is one that goes directly to the substance of 
the bill that we are debating and not an unrelated issue. So I wish to 
compliment the author, Senator Toomey. This is the way we should 
operate in the Senate.
  As many know, I have been advocating for rules changes since 1995. 
One thing I have always adhered to is that it is the right of the 
minority to be able to offer relevant germane amendments to a bill. The 
author of this amendment has adhered to that. This is certainly 
relevant. This is certainly germane. That is why I compliment him for 
providing us with a way the Senate should work. But the amendment, I 
believe, is ill-defined. It would open the floodgates for all kinds of 
new cases. It would disrupt businesses all over America. So for that 
reason I urge my colleagues to oppose the amendment by the Senator from 
Pennsylvania.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Ms. BALDWIN. Mr. President, the bill before us today, the Employment 
Non-Discrimination Act, contains a very carefully negotiated bipartisan 
religious exemption provision. The amendment before us right now 
significantly expands that provision, and I rise to share why I believe 
it would be unwise to do so and urge my colleagues to oppose the 
amendment.
  Religious organizations are not touched by this legislation. They can 
use an individual's sexual orientation or gender identity in their 
employment decisions if they choose to. ENDA does apply, however, to 
businesses and entities that are not primarily religious in purpose and 
character.
  Just as with other civil rights legislation and in laws protecting 
individuals from discrimination on the bases of race, sex, national 
origin, religion, age, and disability, a capable employee in a 
nonreligious business should not be fired--or not hired--because of his 
or her boss's religious beliefs.
  The amendment offered by Senator Toomey would broaden this exemption 
to allow an employer to be exempt from ENDA if it is affiliated with a 
particular religious organization, even if it engages primarily in 
secular activities. Allowing this type of exemption could be 
interpreted so broadly that it could negate the bill and its important 
protections for American workers.

[[Page S7902]]

  The provision of this bill that this amendment seeks to modify is the 
product of a long and significant bipartisan negotiation and 
compromise.
  I ask unanimous consent for 2 additional minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Ms. BALDWIN. I am a former Member of the House of Representatives, 
and I worked very closely with faith groups and civil rights advocates 
over the months leading up to consideration of ENDA in 2007 to arrive 
at the religious exemption compromise in the bill we are considering 
today. In fact, this current language in the bill before us passed the 
House of Representatives on a broad bipartisan basis of 402 to 25 as a 
floor amendment during our consideration of ENDA in 2007. It is a 
bipartisan compromise supported by many religious organizations, 
including the Presbyterian Church, the United Methodist Church, and the 
United Synagogue for Conservative Judaism.
  Over 40 religious organizations wrote to endorse this bill with a 
letter that reads:

       Any claims that ENDA harms religious liberty are misplaced. 
     ENDA broadly exempts from its scope houses of worship as well 
     as religiously affiliated organizations. This exemption--
     which covers the same religious organizations already 
     exempted from religious discrimination provisions of title 
     VII of the Civil Rights Act of 1964--should ensure that 
     religious freedom concerns don't hinder the passage of this 
     critical legislation.

  I ask my colleagues to oppose this amendment and then join together 
on a historic day to vote in support of the Employment Non-
Discrimination Act.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. TOOMEY. Mr. President, I ask for the yeas and nays on my 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  Under the previous order, the motion to recommit S. 815, the pending 
amendments to the underlying bill, and amendment No. 2020 offered by 
the Senator from Maine (Ms. Collins) for the Senator from Nevada (Mr. 
Reid) are withdrawn.
  Under the previous order, the question is on agreeing to amendment 
No. 2013 offered by the Senator from Nevada (Mr. Reid) for the Senator 
from Pennsylvania (Mr. Toomey).
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Pennsylvania (Mr. Casey) 
is necessarily absent.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Oklahoma (Mr. Coburn).
  The PRESIDING OFFICER (Ms. Heitkamp). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 43, nays 55, as follows:

                      [Rollcall Vote No. 230 Leg.]

                                YEAS--43

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Cochran
     Corker
     Cornyn
     Crapo
     Cruz
     Donnelly
     Enzi
     Fischer
     Flake
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Lee
     McCain
     McConnell
     Moran
     Paul
     Portman
     Pryor
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
     Wicker

                                NAYS--55

     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Collins
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heinrich
     Heitkamp
     Hirono
     Johnson (SD)
     Kaine
     King
     Kirk
     Klobuchar
     Landrieu
     Leahy
     Levin
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murphy
     Murray
     Nelson
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wyden

                             NOT VOTING--2

     Casey
     Coburn
  The PRESIDING OFFICER. Under the previous order requiring 60 votes 
for adoption of the amendment, the amendment is rejected.
  Under the previous order, the committee-reported substitute 
amendment, as amended, is agreed to.


                             Cloture Motion

  Under the previous order, the cloture motion having been presented 
under rule XXII, the Chair directs the clerk to read the motion.

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on S. 815, a bill to 
     prohibit employment discrimination on the basis of sexual 
     orientation or gender identity.
         Harry Reid, Tom Harkin, Jeff Merkley, Patrick J. Leahy, 
           Tom Udall, Mark Begich, Brian Schatz, Al Franken, 
           Barbara Boxer, Richard J. Durbin, Christopher A. Coons, 
           Tammy Baldwin, Debbie Stabenow, Benjamin L. Cardin, 
           Sheldon Whitehouse, Patty Murray, Barbara Mikulski, 
           Kirsten E. Gillibrand

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on S. 815, 
a bill to prohibit employment discrimination on the basis of sexual 
orientation or gender identity, and for other purposes, shall be 
brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  Mr. DURBIN. I announce that the Senator from Pennsylvania (Mr. Casey) 
is necessarily absent.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Oklahoma (Mr. Coburn).
  The yeas and nays resulted--yeas 64, nays 34, as follows:

                      [Rollcall Vote No. 231 Leg.]

                                YEAS--64

     Ayotte
     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Collins
     Coons
     Donnelly
     Durbin
     Feinstein
     Flake
     Franken
     Gillibrand
     Hagan
     Harkin
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Johnson (SD)
     Kaine
     King
     Kirk
     Klobuchar
     Landrieu
     Leahy
     Levin
     Manchin
     Markey
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murphy
     Murray
     Nelson
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Toomey
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--34

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Cochran
     Corker
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer
     Graham
     Grassley
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Lee
     McConnell
     Moran
     Paul
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Thune
     Vitter
     Wicker

                             NOT VOTING--2

     Casey
     Coburn
  The PRESIDING OFFICER. On this vote, the yeas are 64, the nays are 
34. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  Under the previous order, cloture having been invoked on S. 815, the 
time until 1:45 p.m. will be equally divided between the two leaders or 
their designees.
  The Senator from Ohio.
  Mr. BROWN. Madam President, I rise today to discuss the need to 
protect all Americans from workplace discrimination. The vote that the 
Presiding Officer from North Dakota just announced was a tremendous 
victory for civil rights in our country; it was a tremendous victory 
for all people, gay and straight. It will mean a more productive 
workplace. It will mean better work conditions. It will mean an 
expansion of human rights. And what is not to celebrate about that?
  I worked on this bill as a cosponsor starting almost 15 years ago--
more than 15 years ago--in the House of Representatives, and I am 
thrilled to have been able to vote for it today, as I know 60-plus of 
my colleagues were, and I am hopeful the House of Representatives 
decides to do the same.
  Earlier this year people of different genders, ethnicities, and ages 
gathered outside of the Supreme Court wanting to be there when civil 
rights history

[[Page S7903]]

was made when the Defense of Marriage Act was declared 
unconstitutional. Clergy, people in collars, parents with children, 
students, seniors--everyone in between--were there too. The steps of 
the Supreme Court that morning were filled with people who represented 
every walk of life in our great country; so, too, must our laws.
  Today and every day far too many Americans still go to work fearing 
they can be fired for who they are and whom they love. This needs to 
stop now. That is why the Senate needs to pass--later today, I hope--
the Employment Non-Discrimination Act and the House needs to bring up 
ENDA for a vote. ENDA would protect LGBT Americans from workplace 
discrimination. It is currently legal--this is what I think the public 
does not always hear and what I think Speaker Boehner needs to hear--it 
is currently legal in 29 States to discriminate based on sexual 
orientation. Think about that. Twenty-nine States--in this great 
country, with this Constitution, with this Bill of Rights--29 States 
allow gay Americans to be fired solely on the basis of their sexual 
orientation. In 2013 you can still be fired for whom you love in 29 
States. It is legal to do that.
  We have laws protecting Americans from workplace discrimination based 
on the color of their skin, as we should; based on their religion, as 
we should; based on whether they are a man or a woman, as we should; or 
whether they have a disability, as we should have those laws in place.
  We should offer these same protections to LGBT Americans. We 
currently do not protect or workers, though, from being fired for whom 
they love. It is morally wrong. We are not living up to the basic moral 
standards. We teach our children the Golden Rule: that we are to treat 
others as we would want to be treated. This country was not built on 
the ideal that only some people deserve equality and justice. We know 
that no one should be discriminated against simply because of who they 
are.
  Many Fortune 500 companies and small businesses have already taken 
steps to protect their employees because they know it is right. In a 
meeting a few months ago, I listened to a Cincinnati-based engineer 
from Procter & Gamble discuss the importance of ENDA. She said, simply: 
People should be able to bring all of themselves to work, not needing 
to hide herself or her family in the workplace. She gets it. 
Unsurprisingly, so does her employer, Procter & Gamble, an American 
icon.
  Passing ENDA makes good economic sense. In a competitive global 
economy, it is essential that businesses attract talented, hard-working 
employees. That is difficult to do when discrimination is allowed. If 
we want to create jobs and compete on a global level, then we need all 
workers from all walks of life to be contributing to the economy. 
Purposefully leaving out a portion of our workforce only puts us behind 
in that global competition.
  We have already made progress in the fight for equality, but we need 
to continue to move forward. We repealed don't ask, don't tell. This 
June the Supreme Court held the Defense of Marriage Act--which five of 
my Senate colleagues voted against in 1996, a few of us in the House 
voted against--as unconstitutional. As a result, couples are able to 
legally marry in many States across the country, the newest of which is 
Illinois. We must continue this progress to create a most just, 
inclusive Nation. Dr. King once said, ``Injustice anywhere is a threat 
to justice everywhere.'' Workers fought for the right to organize, 
woman for the right to vote, African Americans fought for equal 
justice, and now LGBT Americans of all backgrounds are fighting for 
equality. They are entitled to the support of their government, of all 
of us, in that fight.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Heinrich.) The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN. Mr. President, I ask unanimous consent that all time, 
including the time during quorum calls, be equally divided between both 
sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CORNYN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                               ObamaCare

  Mr. CORNYN. During the first few years after it became the law, the 
Affordable Care Act was known to most Americans as mainly a set of 
promises. Americans were repeatedly told that ObamaCare, once it began 
to take full effect--that coverage would expand, premiums would go 
down, and everyone who liked their existing health care coverage could 
keep it.
  When the President and my friends across the aisle described it this 
way, ObamaCare sounded too good to be true. Unfortunately, the promises 
really have turned out to be too good to be true. After spending years 
listening to hollow assurances about what ObamaCare would or would not 
do, the past 5 years have taught us a lot, maybe only the tip of the 
iceberg, about the realities of what ObamaCare actually looks like.
  We have learned that no fewer than 3.5 million Americans have already 
received cancellation notices from their insurance coverage because of 
the new law. We have learned that millions more will receive those same 
types of notices in the foreseeable future.
  We have learned that the administration and, in fact, the Senate, 
knew that was going to happen in 2010 because we had a vote on the 
Congressional Review Act of the regulation which would have expanded 
the grandfather clause, and it was defeated in a party-line vote with 
all Republicans voting to expand the grandfathering provision and all 
our Democratic colleagues voting against.
  What we learned, when they launched the ObamaCare Web site--which has 
been perhaps the most visible image of ObamaCare--was they did it 
before they could guarantee the information people would put in it 
would be secure. That includes both your tax information, your Social 
Security, and your mental health and physical health conditions. We 
learned yesterday from Secretary Sebelius that the navigators, who are 
the people who have been hired to help people navigate the Affordable 
Care Act and get signed up, were hired without performing any kind of 
background check. To the surprise of a lot of people, Secretary 
Sebelius answered a very direct question about that. I asked her in the 
Finance Committee: Is it possible a person could be a navigator and be 
a convicted felon? She said it is ``possible.'' Because there is no 
criminal background check.

  In other words, America's top health care officials believe it is 
possible that convicted felons could be collecting some of our most 
sensitive personal information--our Social Security numbers, tax 
information, and sensitive medical data. Yet this administration 
continues to insist upon refusing a proper vetting system. It is bad 
enough the Web site is entirely dysfunctional--that will get fixed 
sooner or later--but the fact is this same Web site could, in the 
interim, become a magnet for fraud and identity theft.
  Many of us who were skeptics about the President's extravagant 
promises of ObamaCare once implemented have been expressing our 
concerns for years. But as skeptical as I was about ObamaCare when it 
passed the Senate on Christmas Eve in 2009, it is even worse than many 
of us predicted--certainly worse than we imagined.
  With millions of Americans getting cancellation notices from their 
insurance companies, we are finding out their premiums are about to go 
up and not down. It is important to remember exactly why this is 
happening. Thanks to the regulations our friends across the aisle 
continue to support, ObamaCare has allowed Washington bureaucrats to 
define what constitutes an acceptable health insurance policy in the 
individual and small group market. In other words, it has allowed 
Washington bureaucrats to force hardworking American families to pay 
for health care coverage they do not want and they do not need.
  I have heard from my constituents in Texas who are absolutely furious 
and, in some cases, absolutely desperate

[[Page S7904]]

about losing their coverage or being forced to pay higher premiums they 
simply can't afford in order to buy coverage they do not need.
  The underlying conceit of ObamaCare is that individuals and their 
families can't be trusted to choose the right health insurance coverage 
for themselves so they must turn those decisions over to the 
bureaucracy in Washington to do it for them.
  Some have heard us talk about a government takeover of the health 
care system. This is what a government takeover of a health care system 
looks like--when you lose the choices that should be available to you 
as an American citizen--to decide what kind of policy you need at a 
price you can afford--because of this monstrosity of a law. That is a 
government takeover.
  The main objective of ObamaCare, we were told, was to provide 
coverage for all Americans. Yet the Congressional Budget Office has 
made it clear ObamaCare fails even in that objective. They estimate 
about 30 million people will still remain uncovered by the year 2023 
when ObamaCare has been fully implemented. Thirty million people. OK, 
explain to me again, what was the purpose of this exercise? We were 
going to bring costs down and cover people without insurance, and 
everyone would be able to keep the insurance they had if they liked it. 
Yet none of that ends up being true. All of that ends up being false.
  As I said yesterday, the cost of ObamaCare far outweighs the 
benefits. It would have been a lot smarter for us to figure out how to 
deal with the people who are uninsured and get them insured without 
raising costs or prejudicing the rights of people who had policies they 
already liked.
  If Congress were to choose at some point to actually dismantle 
ObamaCare in its entirety, which I think we ought to do, we ought to 
start over and enact an alternative health care reform bill aimed at 
solving the problem not creating new ones. These reforms could include 
revising the Tax Code so that individuals could buy their own health 
insurance on the same tax terms as if it were employer provided.
  We would allow people to actually buy in the health care market 
nationally and form pools to share risks. That would help bring down 
the costs. It would increase competition.
  We also ought to expand the use of tax-free health savings accounts 
for people who decide they want to buy a high-deductible catastrophic 
health insurance policy because it is pretty cheap, and in the meantime 
they want to set money aside each month in a health savings account. 
Maybe they will need it for health care and maybe they won't, but they 
get to do that tax free. And if they don't use it, they can use that as 
part of their retirement. We ought to expand that.
  We ought to make health care price and quality information a lot more 
transparent. One of the most successful health care programs I have 
seen pass the Congress--though we made some mistakes with it and we 
should have offset the cost--is the prescription drug plan, Medicare 
Part D. It has actually worked better than any of us thought it would 
because it is not a government takeover. It created competition between 
competing prescription drug companies that had to compete based on 
quality and price. The result has been the price has gone down roughly 
30 percent under the projected costs when it was passed.
  That is the kind of transparency and choice that is produced from 
quality information and that leaves the choices to people individually 
and not to the government.
  And yes, we ought to crack down on frivolous medical malpractice 
lawsuits. We have seen in Texas that reducing the costs of frivolous 
medical malpractice lawsuits in turn helps to protect against defensive 
medicine, where doctors make clinical decisions based not on their best 
medical judgment but based on their aversion to litigation risk.
  We ought to use high-risk pools to ensure people with preexisting 
conditions can get covered. This is one of the biggest 
misrepresentations I have heard about ObamaCare. Some of our colleagues 
have said: Well, the only way you can get preexisting conditions 
covered is to take ObamaCare hook, line, and sinker. That is clearly 
not true. Virtually all of our States have high-risk programs for 
people with preexisting conditions. They may need to be better funded--
and we ought to look to try to shore them up--but it would be better to 
fix the problems we know exist rather than creating more problems.
  We ought to give the States more flexibility to deal with Medicaid. 
Medicaid is designed as a safety net program for people who can't 
afford to buy their own health insurance. I see the Senator from Maine 
on the floor, and she was very intimately involved in this when she was 
the insurance commissioner for her State. Medicaid, unfortunately, pays 
doctors about half of what private health insurance does to reimburse 
them for their costs, so many doctors have to restrict their practice 
and their ability to see new Medicaid patients.
  In Texas, only about one-third of the doctors will see a new Medicaid 
patient because they simply can't afford to do so. So we need to have 
additional freedom to improve Medicaid and to shore it up while 
providing competition and consumer choice to bring down costs in 
Medicare.
  Mr. President, such reforms would give us a health care system with 
much lower costs, much better coverage, and much greater access to 
quality care. Those are the sorts of reforms we should have embraced in 
2009 and 2010 but did not. We missed our chance back then, but there is 
no good reason we have to accept ObamaCare or nothing. As a matter of 
fact, we should take this opportunity, as we see the promises of 
ObamaCare being broken and not living up to the expectations of its 
strongest proponents, to turn to these other sensible ways to lower 
costs, increase coverage, and improve access.
  As the law's deficiencies become more and more evident, I hope my 
friends across the aisle will join with us, Republicans and Democrats 
alike, to replace ObamaCare with something better.
  Mr. McCAIN. Mr. President, today I will cast my vote in support of S. 
815, the Employment Non-Discrimination Act. This vote is consistent 
with my firm belief that workplace discrimination--whether based on 
religion, gender, race, national origin, or sexual orientation--should 
not be tolerated in America.
  As my colleagues know, this legislation expands Federal employment 
discrimination protections, provided under the Civil Rights Act, to 
include sexual orientation. Under this bill, employers with more than 
15 employees would be subject to new Federal regulations for hiring, 
firing, or promoting an individual on the basis of sexual orientation.
  Many of my colleagues raised concerns about how the bill's language 
failed to provide adequate protections for religious businesses, 
schools, charities, and other institutions. In order to address these 
concerns, I worked with Senator Portman of Ohio and Senator Ayotte of 
New Hampshire to offer an amendment to further protect the 
constitutional rights and religious freedoms of religious 
organizations. Our amendment prevents retaliation on religious 
employers by Federal, State, and local governments based on the fact 
that these employers are exempt from the non-discrimination 
requirements of ENDA. I am pleased that this amendment was agreed to 
without opposition.
  I have always believed that workplace discrimination--whether based 
on religion, gender, race, national origin, or sexual orientation--is 
inconsistent with the basic values that America holds dear. With the 
addition of the amendment I cosponsored with Senators Portman and 
Ayotte strengthening protections for religious institutions, I am 
pleased to support this legislation.
  Ms. MIKULSKI. Mr. President, today the Senate is voting on the 
Employment Non-Discrimination Act--a bill that I am proud to cosponsor. 
Americans believe that hard-working people should be rewarded for their 
efforts and commended for their skills. Yet all throughout our Nation 
individuals are being held back at work or even fired--not because they 
are incompetent but because of their sexual orientation or gender 
identity.
  I firmly believe people should be judged based on their individual 
skills, competence, and unique talents and nothing else. Sexual 
orientation does

[[Page S7905]]

not affect job performance, so it should not be a consideration, and 
the vast majority of Americans agree. In fact, an overwhelming 73 
percent of Marylanders support the Employment Non-Discrimination Act.
  The Employment Non-Discrimination Act would close a significant gap 
in our civil rights laws. It would ensure that people are judged on the 
quality of their work, not on sexual orientation or gender identity. 
Job discrimination on the basis of race, ethnicity, gender, or religion 
has long been prohibited; however, it is still legal to hire and fire a 
person based on their sexual orientation. This is an outrageous 
practice for a country that prides itself on equal rights for all.
  Today, when I look back at the civil rights movement of the 1960s, I 
am shocked by how modest the demands of the African American community 
actually were. If we can pass this piece of legislation, in the future 
we will look back and think what a modest, obvious step it was and 
wonder why it took so long. This bill does not bestow special rights; 
it simply offers gay, lesbian, bisexual, and transgender Americans the 
same protection against unfair discrimination in the workplace as other 
groups--no more, no less.
  Currently, 21 States and the District of Columbia have passed laws 
that prohibit job discrimination on the basis of sexual orientation. In 
addition, hundreds of companies have implemented nondiscrimination 
policies that include sexual orientation.
  Gay Americans are part of the American mosaic and are entitled to the 
same rights and freedoms as every other American citizen. Change in 
civil rights comes slowly, but we are long overdue in making sure they 
have protection against unfair discrimination in the workplace. My hope 
is that someday we will look back on this and wonder what took us so 
long. We all deserve to live in an environment where people are treated 
fairly and with the dignity they deserve, and today I urge my 
colleagues to vote for this important bill.
  Mr. LEVIN. Mr. President, this Nation began not as merely a plot of 
land, or as a group of people united by language or ethnicity. It began 
with an idea: ``That all men are created equal.'' Our story since 
Thomas Jefferson wrote those words has been a story of progress toward 
honoring what has been called ``the immortal phrase.''
  Today, this Senate can move our Nation one important step forward in 
honoring the truth of those words by finally passing the Employment 
Non-Discrimination Act, or ENDA. We can help ensure that no American is 
deprived of the opportunity to work--the opportunity to succeed--as all 
of us want to succeed merely because of sexual orientation or gender 
identity, just as we have acted to protect that opportunity against 
discrimination based on age, race, color, religion, national origin or 
disability.
  This legislation is carefully crafted to protect the sincere 
religious beliefs many Americans hold. It embodies a simple but 
powerful American ideal: On the job, what matters is your work, not 
your gender or skin color or faith or your sexual orientation any other 
extraneous matter.
  There may have been times in the past when the Congress pushed 
Americans into new and perhaps uncomfortable territory in the march 
toward equality. But today, the law lags public opinion in this area. 
Public opinion polls show that roughly 7 in 10 Americans believe 
workplace discrimination against gays, lesbians and transgendered 
individuals should be against the law. In fact, they think it already 
is--according to one poll, 80 percent of Americans believe such 
discrimination is already a violation of Federal law. Support for ENDA 
is not confined to one region of the country--polls show that 
majorities in every State in the union support it. So, passage of ENDA 
is not some bold social experiment or engineering process. It is what 
the American people want and are ready for.
  That is as true today as it was in 1996, the last time the Senate 
held a vote on this measure. Even then, a majority of Americans 
supported it, and just as it is today, it enjoyed the support of a 
diverse group of religious and business organizations. Then, as today, 
American businesses recognized that discrimination on the basis of 
sexual orientation or gender identity is just bad business.
  This is also not a partisan issue. This legislation is on the brink 
of passage here because members of both parties have shown principled 
leadership and dedication.
  But the ultimate reason I have supported this legislation for decades 
now is not related to public opinion polls or endorsement letters from 
churches and corporations, though those are heartening and welcome. 
Simply, it is wrong to deny employment to anyone who can do the job, 
just because of their sexual orientation. ``All men are created equal'' 
means giving every American the opportunity to earn what their talents 
and dedication allow, to provide for themselves and their families. 
Denying anyone that right is at odds with the ideals on which this 
country was founded and on which it depends to this day.
  I strongly support this legislation. I urge my Senate colleagues to 
support it, and upon Senate passage, I urge the leaders of the House of 
Representatives to recognize just how far behind the American people 
they have fallen on this issue, and bring the Employee Non-
Discrimination Act to the House floor for a vote.
  Mr. LEAHY. Mr. President, the Senate has a historic opportunity today 
to take discrimination out of the workplace by casting a vote for the 
Employment Non-Discrimination Act. Today's vote has been 20 years in 
the making, and it is long overdue for Congress to extend these 
protections to all American workers. Years from now we will look back 
on this remedy as another substantial milestone on our Nation's 
everlasting quest to achieve a more perfect union--a quest to realize 
more completely the motto engraved in Vermont marble above the Supreme 
Court building that declares: ``Equal Justice Under Law.''
  We now have protections for workers from discrimination on the basis 
of race, sex, religion, national origin and disability, as we should. 
Yet there are no Federal protections from discrimination on the basis 
of sexual orientation or gender identity. In 29 States, it is still 
legal for an employer to fire employees based on their sexual 
orientation, and in 33 States employees can be fired based on their 
gender identity. Maintaining the status quo would keep in place a 
system that supports a second class of workers in a majority of States. 
This runs counter to our founding values. It is time to remedy that.
  As the son of Vermont printers, I learned at an early age the primary 
importance of the First Amendment. The First Amendment in our Bill of 
Rights is the foundation of our democracy and our way of life. It is 
one of the most defining principles of our national character. It helps 
preserve all of our other rights. By guaranteeing a free press and the 
free exercise of religion, it ensures an informed electorate and the 
freedom to worship God and to practice our religion as we choose--or to 
practice no religion at all.
  Religious freedom does not end with the vital protections afforded by 
the First Amendment. The bill before us contains important protections 
for religious organizations by ensuring that they can continue to make 
significant faith-based employment decisions. The carefully crafted 
religious exemption in this legislation is consistent with the freedoms 
guaranteed by the Constitution.
  All Americans deserve civil rights protections under our 
Constitution, which, in addition to the First Amendment, also ensures 
due process and equal protection. In previous legislative debates like 
the one before us today, Congress has protected and bolstered these 
rights by passing legislation to fill gaps in our Federal laws. This 
includes passing legislation to protect the practice of religion 
without discrimination, to prevent pay discrimination based on sex, and 
to serve openly in the military. By passing the remedy before us today, 
we will take another significant step forward in taking discrimination 
out of our laws and ensuring the equal treatment of lesbian, gay, 
bisexual, and transgender Americans.
  I thank Chairman Harkin and Senators Merkley and Collins for their 
leadership on this significant, overdue, and bipartisan 
antidiscrimination remedy. I also am mindful and appreciative of the 
leading role that Senator Jim

[[Page S7906]]

Jeffords of my State of Vermont took in advancing this remedy during 
his time in this body. And I thank Majority Leader Reid for making this 
a priority for the Senate. I know that my late friend Senator Kennedy 
is smiling down on this chamber today as we advance his efforts to end 
employment discrimination. Today we can honor his legacy with this 
historic vote.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, we are about to make history in this 
Chamber by passing the Employment Non-Discrimination Act, more commonly 
known as ENDA. We will establish the principle that the right to work 
free from discrimination is a fundamental right of each and every 
American regardless of age, race, gender, religion, disability, 
national origin, and now, finally, sexual orientation.
  It has taken a long time to get to this day. More than 10 years ago I 
was proud to join a life-long champion of civil rights, the late 
Senator Ted Kennedy, as a cosponsor of ENDA. That was back in 2002. 
Over the years our country has rightly taken a stand against workplace 
discrimination in a wide variety of forms. It is past time we close 
this gap for our LGBT employees. The time to pass this bill has come.
  I thank Senators Merkley and Kirk for taking up the cause and for 
moving this bill forward. Senator Kirk, along with Senators Hatch and 
Murkowski, led Republican support for this bill during its 
consideration by the HELP Committee.
  I also acknowledge the work of the chairman of the committee Tom 
Harkin in bringing this bill to the floor.
  Other Senators who helped to improve this bill include Senators 
Portman, Ayotte, Heller, Hatch, and McCain, in their effort to draft 
strong antiretaliation language. Their amendment, which was adopted 
unanimously, improves this bill by strengthening the protections for 
religious institutions that are legitimately exempted under ENDA.
  I thank each of those Senators and others, such as Senator Flake, for 
their willingness to work with the sponsors and cosponsors of this 
legislation. Senator Toomey also has worked hard.
  Mr. President, all Americans deserve a fair opportunity to pursue the 
American Dream. ENDA is simply about the fundamental right to work and 
to be judged according to one's abilities, qualifications, and job 
performance. Much of corporate America has already voluntarily embraced 
LGBT protections because they know that doing so helps them attract and 
retain the best and the brightest employees.
  Nearly two dozen States have versions of ENDA. In fact, in my home 
State of Maine, it has been the law for nearly a decade. Simply put, 
ENDA is about fairness and workplace equality. Today, I am confident 
the Senate will affirm that principle and will say to everyone in this 
country the workplace is simply no place for discrimination.
  Mr. HARKIN. Mr. President, today the Senate is sending a clear 
message that all Americans are entitled to earn a living free from 
discrimination and to be judged in the workplace based on 
qualifications, ability, and integrity.
  The Employment Non-Discrimination Act is simple and clear. It states 
that private businesses, public employers, and labor unions cannot make 
employment decisions--hiring, firing, promotion, or compensation--
because of a person's actual or perceived sexual orientation or gender 
identity. The bill is modeled on title VII of the Civil Rights Act, a 
law that has been in place for almost 50 years. It is a law that is 
well understood by employers and is strongly supported by employers.
  More than 50 years ago, with the Civil Rights Act, we took the first 
steps to eliminate discrimination at work. Since that time we have 
ensured that the employers may not discriminate on the basis of race, 
sex, national origin, religion, or age. In 1990 with passage of the 
Americans with Disabilities Act we ensured that Americans were not 
discriminated against on the basis of a disability. Today, for the 
first time, the Senate goes on record prohibiting discrimination at 
work on the basis of sexual orientation and gender identity.
  Yesterday I entered into a colloquy with Senator Leahy, the 
distinguished chairman of the Judiciary Committee with regard to Senate 
amendment No. 2012. I would like to further clarify my response to 
Senator Leahy. As Senator Leahy clearly set forth in his question to 
me, this amendment simply says that you cannot retaliate against an 
organization solely because it qualifies for the exemption under 
section 6(a) of ENDA. The amendment is not intended to undermine in any 
way current or future Federal, State, or local civil rights 
protections--States and localities can still enforce their own 
nondiscrimination laws for violations within their jurisdiction, 
regardless of whether an entity is exempt under the national ENDA 
legislation.
  We have had a very collaborative process on this bill, and I would 
like to take this opportunity to thank all of those who have made that 
possible first, to the sponsors of the bill, Senator Merkley, Senator 
Kirk, Senator Baldwin, and Senator Collins, all of whom have put in 
many hours behind the scenes working to build support for this bill and 
make passage today a reality. Thank-yous also go to their staff: 
Jeremiah Bauman, Cade Clurman, Amber Shipley, John Kane, Katie Brown, 
and Betsy McDonnell.
  On my HELP Committee staff I would like to thank Beth Stein, Lauren 
McFerran, Chris Williamson, and Pam Smith. I would also like to thank 
the HELP Committee minority staff who also worked to get this bill 
through a very collaborative process: Kyle Fortson, Kai Hirabayashi, 
and David Cleary. A special thank-you goes to Dan Goldberg, who 
recently left my HELP Committee staff but did a tremendous job on this 
bill up through the committee markup. I commend all of the staff for 
helping to make final passage of this bill a reality.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I ask unanimous consent for 5 minutes to 
speak to this bill.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. MERKLEY. Mr. President, I thank my colleague who preceded me who 
has summarized the bipartisan collaboration to bring this bill to this 
point that we will be voting on in just a few minutes. No one has done 
more than she to advance this conversation over many years. I thank the 
Senator from Maine for those incredible efforts on behalf of ending 
discrimination and advancing liberty and opportunity.
  Today the Senate will vote to break the chains of discrimination that 
hold back millions of LGBT Americans from the full promise of liberty--
liberty, that freedom to participate fully in our society, in the 
public square to the voting booth, to the school, to the workplace; 
liberty, that quality deeply rooted in our national journey and 
embedded in our Declaration of Independence `` . . . that all men are 
created equal, that they are endowed by their Creator with certain 
unalienable Rights, that among these are Life, Liberty and the pursuit 
of Happiness;'' liberty, the declared mission of our Nation in the 
preamble to the Constitution: We, the people, in order to form a more 
perfect union and secure the blessings of liberty to ourselves and our 
posterity, do ordain and establish a Constitution of the United States 
of America.
  But the march to liberty has been long, with numerous battles along 
the way: the fight to end slavery that President Lincoln figured so 
prominently in, the fight to end racial discrimination, the fight to 
end gender discrimination, the fight to end discrimination against our 
seniors, and the fight that continues today with this bill to end 
discrimination based on sexual orientation and gender identity.
  Discrimination diminishes the potential of the individual and it 
diminishes the potential of our Nation. Senator Ted Kennedy said this 
succinctly when he helped introduce in 2009 a predecessor of the bill 
we will be voting on today. Senator Ted Kennedy said: ``The promise of 
America will never be fulfilled as long as justice is denied to even 
one among us.'' He spoke these words just 20 days before he passed 
away. It is appropriate to quote Ted Kennedy because he led the fight 
for this bill since its first introduction in 1994. I think he would be 
tremendously pleased with the bipartisan vote of affirmation against 
discrimination which we will soon be taking.

[[Page S7907]]

  Along the course of the two decades many have helped on this bill, 
whose footsteps no longer echo in these Halls, and to all of those 
champions of liberty who have participated in this process I say thank 
you.
  There are many champions of liberty still in this body who have been 
fighting toward this moment, and I wish to make sure I acknowledge 
them: Senator Harkin, who championed many elements, including ending 
discrimination against those with disabilities and who steered this 
bill through his committee; Senator Harry Reid and the leadership team 
who worked together to enable this moment in the calendar to have this 
debate and to advocate this bill; Senator Tammy Baldwin, who brought in 
energy from the House and the powerful voice of her personal experience 
to bear on this debate; Senator Collins, who just spoke, who has done 
so much for so long to make this happen, and in the first 2 years of 
2009 and 2010 was the lead cosponsor. She passed the baton to Senator 
Kirk, who has carried that baton forward in the most admirable way. 
Senators Murkowski and Hatch joined to help this bill come out of 
committee and helped create the momentum; Senators Portman, Ayotte, 
Heller, Toomey, and Hatch engaged to help make sure the religious 
exemption which we developed with the right hand is not taken away with 
the left hand, to reinforce the integrity of the title VII religious 
exemption; Senator Flake, who brought forward ideas on how to make sure 
the guidance would be there to help businesses understand how to 
implement this act.
  There are a lot of coalition groups that have done a tremendous 
amount of work. Well done. Every conversation such as this takes 
advocates inside the Chamber and advocates outside the Chamber but a 
particular acknowledgement of the Human Rights Campaign.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. MERKLEY. I ask unanimous consent for 1 more minute.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. MERKLEY. There are two staff members on my team who have labored 
on this whom I wish to personally acknowledge: Scott Rosenthal, who 
carried this organizational responsibility for a number of years, and 
my legislative director Jeremiah Bowman, who provided over these last 
few months this critical organizing stage.
  I look forward to this vote for liberty, this vote for freedom, this 
vote for opportunity, and this vote for a fairer and just America.
  The PRESIDING OFFICER. Under the previous order, all postcloture time 
is yielded back.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  The PRESIDING OFFICER. Under the previous order, the question is, 
Shall the bill (S. 815), as amended, pass?
  Mr. MERKLEY. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Pennsylvania (Mr. Casey) 
is necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Wyoming (Mr. Barrasso), the Senator from Oklahoma (Mr. 
Coburn), and the Senator from Alabama (Mr. Sessions).
  The PRESIDING OFFICER (Mr. Murphy). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 64, nays 32, as follows:

                      [Rollcall Vote No. 232 Leg.]

                                YEAS--64

     Ayotte
     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Collins
     Coons
     Donnelly
     Durbin
     Feinstein
     Flake
     Franken
     Gillibrand
     Hagan
     Harkin
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Johnson (SD)
     Kaine
     King
     Kirk
     Klobuchar
     Landrieu
     Leahy
     Levin
     Manchin
     Markey
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murphy
     Murray
     Nelson
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Toomey
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--32

     Alexander
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Cochran
     Corker
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer
     Graham
     Grassley
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Lee
     McConnell
     Moran
     Paul
     Risch
     Roberts
     Rubio
     Scott
     Shelby
     Thune
     Vitter
     Wicker

                             NOT VOTING--4

     Barrasso
     Casey
     Coburn
     Sessions
  The bill (S. 815), as amended, was passed, as follows:

                                 S. 815

       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 2013''.

     SEC. 2. PURPOSES.

       The purposes of this Act are--
       (1) to address the history and persistent, widespread 
     pattern of discrimination on the bases of sexual orientation 
     and gender identity by private sector employers and local, 
     State, and Federal Government employers;
       (2) to provide an explicit, comprehensive Federal 
     prohibition against employment discrimination on the bases of 
     sexual orientation and gender identity, including meaningful 
     and effective remedies for any such discrimination;
       (3) to invoke congressional powers, including the powers to 
     enforce the 14th Amendment to the Constitution, and to 
     regulate interstate commerce pursuant to section 8 of article 
     I of the Constitution, in order to prohibit employment 
     discrimination on the bases of sexual orientation and gender 
     identity; and
       (4) to reinforce the Nation's commitment to fairness and 
     equal opportunity in the workplace consistent with the 
     fundamental right of religious freedom.

     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) Demonstrates.--The term ``demonstrates'' means meets 
     the burdens of production and persuasion.
       (4) 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 State employee to which section 302(a)(1) of the 
     Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
     16b(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.
       (5) 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 (4)) 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.
       (6) 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)).
       (7) 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.
       (8) 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)).
       (9) 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)).

[[Page S7908]]

       (10) Sexual orientation.--The term ``sexual orientation'' 
     means homosexuality, heterosexuality, or bisexuality.
       (11) 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 subsection (a)(4)) or an 
     employer (as defined in subsection (a)(5)), respectively, 
     except as provided in paragraph (2) of this subsection; and
       (2) to an employer in subsection (f) of that section shall 
     be considered to refer to an employer (as defined in 
     subsection (a)(5)(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 gender 
     identity; 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 or gender identity.
       (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 or gender identity of the individual or to 
     classify or refer for employment any individual on the basis 
     of the actual or perceived sexual orientation or gender 
     identity 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 or gender identity 
     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 gender identity; 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 or gender identity 
     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 or gender identity 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 or gender identity 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 or 
     gender identity 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 or gender identity 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 
     or gender identity.
       (g) No Disparate Impact Claims.--Only disparate treatment 
     claims may be brought under this Act.
       (h) Standards of Proof.--Except as otherwise provided, an 
     unlawful employment practice is established when the 
     complaining party demonstrates that sexual orientation or 
     gender identity was a motivating factor for any employment 
     practice, even though other factors also motivated the 
     practice.

     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.

     SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

       (a) In General.--This Act shall not apply to a corporation, 
     association, educational institution or institution of 
     learning, or society that is exempt from the religious 
     discrimination provisions of title VII of the Civil Rights 
     Act of 1964 (42 U.S.C. 2000e et seq.) pursuant to section 
     702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-
     2(e)(2)) (referred to in this section as a ``religious 
     employer'').
       (b) Prohibition on Certain Government Actions.--A religious 
     employer's exemption under this section shall not result in 
     any action by a Federal agency, or any State or local agency 
     that receives Federal funding or financial assistance, to 
     penalize or withhold licenses, permits, certifications, 
     accreditation, contracts, grants, guarantees, tax-exempt 
     status, or any benefits or exemptions from that employer, or 
     to prohibit the employer's participation in programs or 
     activities sponsored by that Federal, State, or local agency. 
     Nothing in this subsection shall be construed to invalidate 
     any other Federal, State, or local law (including a 
     regulation) that otherwise applies to a religious employer 
     exempt under this section.

     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) Dress or 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 as apply for 
     the gender to which the employee has transitioned or is 
     transitioning.
       (b) Additional Facilities Not Required.--Nothing in this 
     Act shall be construed to require the construction of new or 
     additional facilities.

     SEC. 9. COLLECTION OF STATISTICS PROHIBITED.

       The Commission and the Secretary of Labor shall neither 
     compel the collection of nor require the production of 
     statistics on actual or perceived sexual orientation or 
     gender identity from covered entities pursuant to this Act.

     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

[[Page S7909]]

     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.--Except as provided in section 
     4(g), 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 (42 U.S.C. 2000e-16b(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)).
       (d) No Double Recovery.--An individual who files claims 
     alleging that a practice is an unlawful employment practice 
     under this Act and an unlawful employment practice because of 
     sex under title VII of the Civil Rights Act of 1964 (42 
     U.S.C. 2000e et seq.) shall not be permitted to recover 
     damages for such practice under both of--
       (1) this Act; and
       (2) section 1977A of the Revised Statutes (42 U.S.C. 1981a) 
     and title VII of the Civil Rights Act of 1964.
       (e) Motivating Factor Decisions.--On a claim in which an 
     individual proved a violation under section 4(h) and a 
     respondent demonstrates that the respondent would have taken 
     the same action in the absence of the impermissible 
     motivating factor, the court--
       (1) may grant declaratory relief, injunctive relief (except 
     as provided in paragraph (2)), and attorney's fees and costs 
     demonstrated to be directly attributable only to the pursuit 
     of a claim under section 4(h); and
       (2) shall not award damages or issue an order requiring any 
     admission, reinstatement, hiring, promotion, or payment.

     SEC. 11. STATE AND FEDERAL IMMUNITY.

       (a) Abrogation of State Immunity.--A State shall not be 
     immune under the 11th Amendment to the Constitution from a 
     suit brought in a Federal court of competent jurisdiction for 
     a violation of this Act.
       (b) Waiver of State Immunity.--
       (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 (d).
       (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) Effective date.--With respect to a particular program 
     or activity, paragraph (1) applies 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 State 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 (42 U.S.C. 
     1988).
       (d) 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.

       (a) Definition.--For purposes of this section, the term 
     ``decisionmaker'' means an entity described in section 10(a) 
     (other than paragraph (4) of such section), acting in the 
     discretion of the entity.
       (b) Authority.--Notwithstanding any other provision of this 
     Act, in an action or administrative proceeding for a 
     violation of this Act, a decisionmaker 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, to the same extent as is permitted 
     under title VII of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e et seq.), sections 302 and 304 of the Government 
     Employee Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-
     16c), the Congressional Accountability Act of 1995 (2 U.S.C. 
     1301 et seq.), or chapter 5 of title 3, United States Code, 
     whichever applies to the prevailing party in that action or 
     proceeding. 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 a notice described 
     in section 711 of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e-10) may be required to post an amended notice, 
     including a description of 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. 
     Nothing in this Act shall be construed to require a separate 
     notice to be posted.

     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 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, and applicants for employment as such employees.

     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 on the date that is 6 months 
     after the date of enactment of this Act and shall not apply 
     to conduct occurring before the effective date.

 Mr. CASEY. Mr. President, I was with my wife today, who was 
recovering from surgery, but had I been present I would have proudly 
cast my vote in favor of the Employment Non-Discrimination Act (ENDA). 
As a cosponsor of ENDA, I am grateful for today's bipartisan Senate 
vote, and I was pleased to vote for cloture earlier this week.
  Despite the progress our Nation has made in ensuring equality for 
all, more than one in five lesbian, gay, bisexual or transgender 
employees have experienced workplace discrimination. That is completely 
unacceptable and Congress is long overdue in extending workplace 
protections to the LGBT community. Workers should be judged on the 
quality of the job they do, not who they are. I applaud today's vote 
and hope that the House of Representatives will quickly follow the 
Senate and work in a bipartisan way to send this legislation to the 
President for signing.

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