[Congressional Record (Bound Edition), Volume 153 (2007), Part 22]
[House]
[Pages 30364-30393]
[From the U.S. Government Publishing Office, www.gpo.gov]




               EMPLOYMENT NON-DISCRIMINATION ACT OF 2007

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

                              {time}  1500


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the state of the Union for the consideration of the bill 
(H.R. 3685) to prohibit employment discrimination on the basis of 
sexual orientation, with Mrs. Tauscher in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered read the 
first time.

[[Page 30365]]

  The gentleman from California (Mr. George Miller) and the gentleman 
from California (Mr. McKeon) each will control 30 minutes.
  The Chair recognizes the gentleman from California (Mr. George 
Miller).
  Mr. GEORGE MILLER of California. I thank the Chair, and I yield 
myself 3 minutes.
  Madam Chairman and Members of the House, it is disgraceful but true 
that in much of the United States, it is perfectly legal for employers 
to fire workers simply on the basis of their sexual orientation.
  I am proud that today the House will vote on legislation to end this 
discrimination. It has no place in American society.
  The legislation we are considering was first introduced in the House 
in 1975, more than 30 years ago, and in the last three decades, gay, 
lesbian, and bisexual Americans have waged a courageous campaign for 
their workplace rights. I regret that they have had to wait so long for 
this vote, but I am pleased that this historic day has finally arrived.
  The Employment Non-Discrimination Act ensures that employment 
decisions are based upon merit and performance and not prejudice. 
Federal law and the laws of 30 States permit employers to discriminate 
against employees based solely on their sexual orientation. In those 30 
States, employers can fire, refuse to hire, demote, or refuse to 
promote employees on the basis of sexual orientation alone.
  Earlier this year, under Chairman Andrews, the Health, Employment, 
Labor and Pensions Subcommittee heard testimony from Michael Carney, a 
highly decorated police officer. Officer Carney was initially denied 
the opportunity to return to his job with the Springfield, 
Massachusetts Police Department because he is gay. Fortunately, 
Massachusetts is not one of the 30 States to deny these basic rights to 
gay workers, and Officer Carney was eventually able to return to his 
job.
  But that was not the case for Brooke Waites, who testified at the 
hearing. Ms. Waites was fired from her job in telecommunications after 
her employer discovered that she was a lesbian. Since the State of 
Texas allows employers to fire workers based on sexual orientation, Ms. 
Waites had no recourse. She could not get her job back.
  It's hard to believe that fully qualified, capable individuals are 
being denied employment or fired from their jobs for these completely 
nonwork-related reasons. This is profoundly unfair and certainly un-
American. Unless we act to outlaw this discrimination, millions of 
American workers will continue to live with the legitimate fear that 
they could be fired or denied a job and wind up unable to provide for 
themselves and their families. That is why it is essential that this 
Congress act to protect the rights of all workers, regardless of their 
sexual orientation.
  The Employment Non-Discrimination Act extends employment 
nondiscrimination protections to gay, lesbian, bisexual, and 
heterosexual people. It prohibits employers, employment agencies, and 
labor unions from using an individual's sexual orientation as a basis 
for employment decisions such as hiring and firing, promotion, or 
compensation. The bill prohibits employers from subjecting an 
individual to different standards of treatment based upon the 
individual's sexual orientation. The bill does not apply to businesses 
with less than 15 workers, private membership clubs, or the U.S. Armed 
Forces. And it does not apply to religious schools or other religious 
organizations.
  I urge my colleagues to support this legislation.
  Madam Chairman, I reserve the balance of my time.
  Mr. McKEON. Madam Chairman, I yield myself such time as I may 
consume.
  I rise in opposition to H.R. 3685, a proposal fraught with burdensome 
mandates, litigation traps, and constitutional concerns.
  This bill purports to prohibit discrimination in the workplace, a 
goal to which we are all committed. However, the reality of this bill's 
consequences does not match the rhetoric of its supporters.
  This bill departs from the longstanding framework and structure of 
the Civil Rights Act of 1964 by establishing stand-alone protections 
exclusively on the basis of sexual orientation. This new protected 
class would be afforded protections on the basis of vague and highly 
subjective measures that will cause confusion in the workplace and will 
result in costly litigation.
  For example, the bill extends protections on the basis of 
``perceived'' sexual orientation, a characteristic that is subjective 
by its very definition. How would an employer credibly refute such an 
accusation? This proposal could result in the exact opposite effect its 
supporters intend by creating new pressures on employers to consider 
and even document their employees' sexual orientation, actual or how it 
is perceived, in order to guard against litigation. This is a highly 
inappropriate infringement on employee privacy and would actually 
increase the consideration of such characteristics in the workplace. 
Also, any argument that the term ``perceived'' is already included in 
existing civil rights statutes is simply not true. This is a new term, 
applied to a new situation, which will increase uncertainty and 
litigation.
  Even more broadly, this bill encroaches on two fundamental principles 
we hold dear: the free exercise of religion and preservation of the 
institution of marriage. H.R. 3685 is inconsistent with the 
longstanding religious exemption contained in title VII of the Civil 
Rights Act. The bill adds additional layers of complexity in 
determining whether a religious organization is covered, setting up 
highly intrusive Federal interference with the free expression of 
religion.
  We understand an amendment is to be offered later today that attempts 
to move closer to existing title VII provisions. However, it remains 
unclear whether this amendment, which has been rewritten repeatedly, 
does enough to protect faith-based institutions.
  On the issue of marriage, the majority adds a provision that prevents 
employers from considering marital status as a job qualification, even 
though they have not provided any evidence that such a limitation is 
necessary. We are left to speculate that the real reason for this 
provision could be an attempt to undermine the fundamental right of 
States to define, protect, and preserve the institution of marriage. 
The bill establishes new limitations on hiring practices only in those 
States that have prohibited same-sex marriage.
  By limiting these new restrictions to States that have defined 
marriage as an institution between one man and one woman, the bill has 
essentially identified traditional marriage as a form of 
discrimination. This bill, then, could become the first step in a 
radical effort to undermine State marriage laws.
  Madam Chairman, this bill has been introduced in various forms and 
fashions for some three decades. It has been introduced in the House 
three separate times this year alone. This is evidence of the inherent 
complexity that comes with such a far-reaching proposal.
  Later today, we will consider an amendment that seeks to broaden 
these new protections even further, to purportedly cover discrimination 
based on gender identity, despite the fact that this provision was 
stripped from the bill before it was taken up in committee. There are 
serious practical and legal concerns with this amendment, and many 
questions remain unresolved. This is an effort to make an end-run 
around the legislative process, considering the full scope of this 
proposal only when it is convenient for supporters.
  The bill before us is a sweeping departure from longstanding civil 
rights law, and its consequences will be far-reaching. A number of 
valid questions have been raised about how this bill will align with 
existing State and Federal anti-discrimination policies and those 
policies that have been voluntarily adopted by employers. These 
questions remain unanswered.
  Because of that, I must oppose this bill and encourage my colleagues 
to do the same.

[[Page 30366]]

  Madam Chairman, I reserve the balance of my time.
  Mr. GEORGE MILLER of California. Madam Chairman, I yield 3 minutes to 
the gentleman from New Jersey (Mr. Andrews), the Chair of the 
subcommittee that did a marvelous job in handling this legislation.
  Mr. ANDREWS. I thank my chairman and friend for yielding.
  Madam Chairman, we very often hear people say in this House that they 
oppose discrimination. Today there's a chance to do something more than 
just say that you oppose discrimination; you can vote against it.
  I listened to the questions raised by my friend from California, the 
ranking member of the full committee, and I would like to address them.
  My friend says that there are burdensome new mandates imposed by this 
bill. That is not the case. If an employer has 15 or fewer employees, 
they are not covered by it at all. And there's really nothing 
burdensome about the idea that you can't refuse to hire or fire or 
mistreat someone because of their sexual orientation. That's no more of 
a burden than having the same rules based on race or religion or 
nationality.
  My friend says there are highly subjective measures, and he points to 
the use of the word ``perceived'' discrimination. He says that when we 
ban discrimination based on perception of sexual orientation, it 
creates too much confusion. The reality is that precisely the same 
legal concept has been part of our Federal law since 1989 under the 
Americans with Disabilities Act.
  Listen to this. I know the word ``perceived'' is not in the ADA, but 
the legal concept is the same. One Federal judge in New York heard a 
case, and that judge says that the case was based on ``harassment and 
discrimination based on her perceived disability.'' I'm not sure this 
judge is qualified, but most of the Senate does because it was Judge 
Michael Mukasey, who is now the President's nominee to be Attorney 
General of the United States. This doesn't create new confusion; it 
simply restates an existing principle.
  On free exercise of religion, the gentleman from California is 
correct. There was some debate about the proper scope of the free 
exercise provisions in the underlying bill. Mr. Miller's amendment, 
which we will hear shortly, imports precisely the same standard that 
has existed for the exercise of religion for the last 42 years under 
title VII.
  The gentleman raises questions about marriage and says this is a 
radical attempt or a first step in a radical attempt to redefine 
marriage. Mr. Miller's amendment will make it clear that precisely the 
opposite is true. Mr. Miller's amendment will take the language that 
was approved by the House, signed by President Clinton, in the Defense 
of Marriage Act, which defines for Federal law purposes marriage as one 
man and one woman and import it into this bill.
  Finally, the gentleman says this is a sweeping departure from civil 
rights laws. Nothing could be further from the truth. This is not a 
departure from civil rights laws. It's an inclusion of millions of 
Americans who should have been included for a very long time. It's a 
question of simple fairness. It's a question that says if you are a 
computer programmer or a bus driver or a carpenter, your job situation 
should be based on how well you drive the bus or how well you can 
program the computer, not on your sexual orientation.

                              {time}  1515

  Mr. McKEON. At this time, Madam Chair, I'm happy to yield 5 minutes 
to the ranking member of the subcommittee involved, the gentleman from 
Minnesota, Representative Kline.
  Mr. KLINE of Minnesota. I thank my colleague, the gentleman from 
California, for yielding the time.
  Madam Chair, I rise today in opposition to the Employment Non-
Discrimination Act, H.R. 3685.
  As the ranking member of the Health, Employment, Labor and Pension 
Subcommittee, I have reviewed this legislation in several different 
forms over the last several weeks. I've participated in debates and 
conversations that have brought this bill to the floor, and I have to 
report that this legislation is still flawed.
  The bill before us is drafted in such a way that it creates confusion 
and uncertainty. My colleagues offered a number of amendments to 
correct the inherent problems in this bill. Unfortunately, one critical 
amendment offered by Mr. Souder removing the word ``perceived'' was not 
accepted by the majority. My colleague has already introduced that 
point of confusion; I would like to expand on it.
  This bill, and I quote, ``prohibits employers from discriminating 
against an individual because of an individual's actual or perceived 
sexual orientation.'' What does that mean, ``perceived sexual 
orientation''? We do not know because the bill fails to provide a 
definition. This raises a number of practical and legal concerns. The 
term ``perceived'' is overly broad, vague, and will inevitably lead to 
increased litigation, lots of increased litigation.
  We cannot abdicate our constitutional duty by knowingly creating a 
law that is so vague that the courts must necessarily determine a 
definition. This is, frankly, a trial lawyer's dream. I would point out 
that in the course of our hearings one of our colleagues did express 
faith in ``Attorney World'' to clarify this issue. Well, it is kind of 
funny; I just don't think that's a theme park that we want to visit.
  Employers may have difficulty in identifying noninherent 
characteristics of a person but could still be liable. Under the 
statute, employers would be accountable to prove that they did not make 
an employment decision based on either their own perception of an 
individual's sexual orientation or on that person's perception of 
themselves. I can see why ``Attorney World'' could be called upon here. 
Employers would find themselves in the unenviable position of defending 
themselves in lawsuits by proving a negative, that they did not 
perceive the individual to be part of a newly protected class.
  Further, the term ``perceived'' does not appear in any other civil 
rights legislation. Let me be clear, we are not talking about the 
definition of gays, lesbians and bisexuals; we are talking about those 
individuals that may be ``perceived'' to be such. The Civil Rights Act 
protects individuals on the basis of race, color, religion, sex or 
national origin. Nowhere do we see the term ``perceived.''
  Madam Chair, those who favor this bill presented on the floor today 
are motivated only by the end goals of this legislation and are failing 
to recognize the difficulty presented by vague terms and loose 
definitions. We are left with a bill that is filled with confusion and 
uncertainty.
  I would ask that my colleagues carefully consider the inherent 
problems in enforcement of this legislation and vote against H.R. 3685.
  Mr. GEORGE MILLER of California. Madam Chair, I yield 3 minutes to 
the gentleman from Massachusetts (Mr. Frank), one of the pioneers of 
this legislation.
  Mr. FRANK of Massachusetts. I am grateful for the obscurity of the 
opposition's argument.
  I first filed a bill 35 years ago to say that you couldn't fire 
someone because he was gay or she was a lesbian, and at the time people 
were very straightforward about their opposition. Times have changed. 
It is no longer fashionable to say that you ought to be able to 
discriminate against someone based on his or her sexual orientation, so 
we now get other arguments.
  Let me say this: I have heard a number of people raise this argument 
that the real problem is that it says ``perceived.'' I do not believe 
that a single one of them would change his or her position if we were 
to remove that. They are opposed to the notion that gay men and 
lesbians, people like me, should be allowed to prove themselves in the 
workplace without discrimination, but that's not a good argument to 
make. So we get ``perceived'' as the argument, and it is not a serious 
one.
  In the first place, it's arguing about having to defend a negative; 
it's wrong, both legally and factually. The burden of proof is on the 
complainant. No employer has to prove a negative. It is the complainant 
who has the hard job of proving the positive. That's why historically 
statutes like this, every time

[[Page 30367]]

we try to protect some people against discrimination, we go through two 
phases. First, beforehand, we get the most absurd exaggerations of the 
chaotic impact it will have. After the fact, they are rarely, 
unfortunately, enforced very vigorously. And by the way, if this 
``perceived,'' if this were a problem, we would have examples of it. 
Nineteen States have laws like this on the books, and how many examples 
have you had of the poor, befuddled employer who is so unable to 
perceive that he is put on the dock? None. This is a made-up issue made 
up by people who don't want to confront the real issue.
  And here is the real issue: there are millions of our fellow 
citizens, Madam Chair, gay or lesbian, who live in fear that they could 
be fired because they live in States where there is no such protection. 
And we have had real examples of that. And what we say today is, no, 
you can't be fired because of that.
  Why is ``perceived'' in there? Because otherwise you're opening a big 
loophole. By the way, this notion of ``perceived,'' it is so unusual 
that it's in the American Disabilities Act and has been interpreted by 
several judges, Justice Alito, Judge Mukasey and Poser, three radicals 
who have enforced this.
  So, let's not hide behind this semantic. That is not the genuine 
motivation for opposition to this bill on the part of anyone in this 
House. What they are saying is, we don't want to protect working men 
and women from this.
  Madam Chair, I was accused in the last campaign by a former Member of 
this body of pursuing a radical homosexual agenda. Well, here it is in 
the House today, working, getting a job. That's what we are asking for, 
the right for people to go to work and be judged solely on how they 
work. Let's get rid of the semantic obscurantism.
  Mr. McKEON. I am happy now to yield 3 minutes to a member of the 
committee, the gentleman from Indiana (Mr. Souder).
  Mr. SOUDER. I thank our distinguished ranking member.
  ``Perceived'' is, in fact, a real problem because many businesses 
simply won't go to court. Obviously they will negotiate or not bother 
with it. That's the type of intimidation tactics that occur.
  I am against the underlying bill. I have never hidden that I'm 
against the underlying bill. I think it's a disaster for Christian 
bookstores, at least 85 percent of which would fall under this, all 
sorts of Christian colleges. Even with the well-intentioned amendment 
that certainly improves the bill that Chairman Miller is offering, it 
still doesn't fix the underlying problems.
  One prominent attorney says that basically religious rights have to 
be trumped by sexual rights in the workplace, and that's the goal of 
this act, and that this gives religious rights a secondary status in 
our society to sexual rights.
  I want to address one other thing, and I apologize for bringing 
politics into this. In my last campaign, in the last 10 days of my 
campaign, a cookie-cutter ad was dropped on me that started with 
pictures of Speaker Hastert and Jerry Lewis. Then a little clip was 
inserted into the ad that said Speaker Hastert visited my district and 
that I was proud to have him visit my district. Then pictures of Duke 
Cunningham came up, and then a picture of Bob Ney came up, then a 
picture of Mark Foley. Mark Foley's picture came out from the screen, 
referring to ``Friends of Mark Souder'' and said that Mark Souder has 
friends who have even had unnatural sex with minors, which was a smear 
on Mark Foley; nothing was either proven or even directly alleged that 
way. But for a party that ran cookie-cutter ads, in order to get the 
majority against me, every half hour referring to unnatural sex with 
minors that wasn't proven and smeared me, Mark Foley, and others, to 
stand down here, not allow a vote on gender because they wouldn't want 
to divide their party on the vote, not allow any direct votes on 
``perceived,'' not allow any religious protection votes, and then to 
attack us for being intolerant when your party used that ad against me 
and others is a tad cute.
  Mr. GEORGE MILLER of California. I yield 1\1/2\ minutes to the 
gentlewoman from California (Ms. Woolsey).
  Ms. WOOLSEY. Madam Chairwoman, I rise in support of H.R. 3685.
  Before I came to Congress, I was a human resources executive, and 
even then, during the 1970s, my company had a policy that prohibited 
discrimination based on sexual orientation. It boggles my mind that it 
has taken Congress this long to even try to catch up.
  I acknowledge that today's bill is a good start, but it is just a 
beginning. Many of my constituents want this legislation to include 
provisions that were in the original version of the bill and in the 
amendment that Representative Baldwin will introduce later today.
  I share the concern that the legislation before us does not protect 
the transgendered people. Transgendered people are particularly subject 
to workplace discrimination, and nearly one-half of all transgendered 
people have reported employment discrimination at some point in their 
lives.
  My home State of California is one of a dozen States which already 
provide this basic liberty, freedom from discrimination based on gender 
identity. We have done so because we recognize that transgendered 
people, like all people, deserve protection.
  Today's bill is not perfect, but please know that today and every day 
I commit to working with my colleagues to pass this bill and to keep up 
the fight to expand protection for all peoples.
  Mr. McKEON. I'm happy to yield 2 minutes to the gentleman from Ohio, 
Jim Jordan.
  Mr. JORDAN of Ohio. I thank the ranking member.
  Madam Chair, I rise today to express my opposition to the so-called 
Employment Non-Discrimination Act.
  Far from actually protecting new workers, this legislation will add 
confusion and contradictions to title VII's existing protections. We 
have already heard from speakers who talked about the ``perceived'' 
sexual orientation language in this bill. And it would violate the 
traditional bases used to determine protected status, those being an 
immutable characteristic, a history of economic disenfranchisement and 
political powerlessness. All of the protected classes that currently 
exist in title VII meet these standards, while those individuals this 
legislation seeks to protect do not. The current title VII protections 
are sufficient to protect our Nation's citizens. Expansion would only 
lead to confusion and more litigation. The previous Republican speaker 
talked about this. He talked about the contradiction that exists 
between sexual rights and religious rights. If this legislation is 
approved, it will certainly be challenged in court and produce a clash 
with religious freedom and expression.
  And then, finally, two other things I would like to address. ENDA, I 
believe, has the potential to severely hurt business. Not only will the 
religious exemption fail to cover nondenominational religious 
elementary schools, high schools and colleges, but it may, in fact, 
force employers to violate their personal convictions and hire 
individuals that they determine may not be in the best interests of 
their business. Business owners with religious convictions should be 
free to apply those convictions to their hiring practices.
  And I guess I would just close by saying, most importantly in my 
mind, this legislation, I believe, would undermine the institution of 
marriage and thereby undermine that key institution in our culture, 
which I believe in the end ultimately determines the strength of our 
entire society, and that being the family institution. You think about 
one of the reasons America is so great is because moms and dads and 
families sacrifice for the next generation. I believe this legislation 
has the real potential to undermine the importance of families in our 
culture and in our society and in our country.
  For those reasons, Madam Chair, I would oppose the legislation. I 
thank the gentleman for yielding.
  Mr. GEORGE MILLER of California. I yield 2 minutes to the gentlewoman 
from Ohio (Ms. Pryce).
  Ms. PRYCE of Ohio. Madam Chair, I thank the gentleman for yielding.
  For more than two centuries, this country has advertised itself as a 
land

[[Page 30368]]

of opportunity, of capitalism and free markets, of rugged 
individualism, where economic success awaited anybody who was willing 
to play by the rules and work hard. We pride ourselves as a Nation that 
doesn't necessarily guarantee equality and economic success, but 
promises equality and opportunity for all Americans. Yet today, these 
doors of opportunity aren't open for all Americans.
  Gay Americans currently hold the dubious distinction of being the 
only segment of our workforce that can be overtly denied an opportunity 
to contribute to our economy and to earn a living.
  Madam Chair, corporate America has never been widely identified as a 
vanguard for social change, but in the case of ensuring opportunity for 
gay Americans, the private sector is way ahead of the Federal law by 
leaps and bounds.

                              {time}  1530

  At present, 90 percent of American Fortune 500 companies have 
policies in place similar to what would be required under ENDA. They do 
it out of a sense of fairness, but also because it makes financial 
sense. Their bottom line is enhanced when they can attract talented and 
productive workers, men or women, gay or straight, that can contribute 
to the company's success without fear of recrimination or workplace 
reprisal. The ability to apply oneself, work hard and succeed has been 
the American Dream. This quintessential American right to pursue that 
dream should not be abridged. It should not be abrogated. Rather, it 
should be protected by the very government that has flourished for more 
than two centuries because of that dream.
  Madam Chairman, the concept of ENDA, the fundamental American right 
to earn a living, should be a principle around which everyone in this 
Chamber, regardless of party or ideology, should be eager to embrace.
  Mr. McKEON. I am happy now to yield 3 minutes to the gentleman from 
Michigan, a member of the committee, Representative Walberg.
  Mr. WALBERG. I thank the ranking member for the opportunity to stand 
today in strong opposition to the ENDA Act. I use that acronym because 
I believe it is mistitled, that this is not a nondiscrimination act but 
rather a discrimination act, a reverse discrimination in many ways. But 
it certainly doesn't achieve what I think ought to be part of this 
society because it is a radical transformation of workplace 
discrimination law that stomps on the rights of private employers, adds 
new unfunded mandates and opens the judicial gates to a herd of endless 
litigation.
  Pitting a newly protected class of individuals based on sexual 
orientation against our longstanding foundation of religious liberty 
will force job makers to walk a legal tightrope over which law to 
follow and which law to violate.
  A business with as few as 15 employees will be slammed as new 
unfunded Federal mandates will provide additional protections for some 
employees, protections that may conflict with the ability of other 
employees to freely express their personal and religious convictions, 
again, without attempt to discriminate or treat wrongly. In fact, this 
legislation is so poorly written and broad, it will immediately serve 
as another way for trial lawyers to make a quick buck at the expense of 
small business owners. More lawsuits against jobs creators in my home 
State of Michigan, especially with recently passed tax increases, are 
the last thing employers in south central Michigan need to grow, 
prosper and thrive in a competitive environment.
  ENDA is a fundamental departure from the longstanding principles of 
religious liberty as well, principles our country was founded upon. In 
fact, this will directly discriminate against people of traditional 
values and long-held faith principles. Rather than reducing 
discrimination, this legislation will instead reduce religious freedom 
and increase litigation.
  The Founders of this great democratic Republic would invariably run 
afoul of this legislation if they were alive today. If you want to make 
a stand in favor of increasing lawsuits and penalizing small business 
owners at the benefit of trial lawyers, then by all means support this 
bill. If you want to chill the exercise of personal religious freedom, 
support this bill.
  Madam Chairman, I, for one, am choosing to stand for the basic 
principle of religious freedom and nondiscrimination. I urge my 
colleagues to vote ``no.''
  Mr. GEORGE MILLER of California. I yield 1\1/2\ minutes to the 
gentleman from Georgia (Mr. Bishop).
  Mr. BISHOP of Georgia. Madam Chairman, as one who has suffered the 
stigma and painful effects of state-enforced legal discrimination based 
on my race for the first 20 of my 60 years, and having spent all of my 
professional life as an attorney and as an elected official fighting to 
eradicate unlawful discrimination based on race, creed, color, 
religion, gender, age, disability or national origin, and based on my 
study and understanding of the life and teachings of Jesus Christ, I 
cannot condone discrimination in employment based on sexual 
orientation.
  The only appropriate consideration in employment should be the 
willingness and the ability to perform the job. Sexual orientation, 
unless it adversely affects job performance, is a private matter and 
should not be a basis for legal discrimination with the possible 
exception of the armed services and religious organizations.
  Accordingly, after prayerful consideration, I must therefore support 
H.R. 3685, the Employment Non-Discrimination Act. I urge my colleagues 
to do the same.
  Mr. KLINE of Minnesota. Madam Chairman, I am very pleased now to 
yield 3 minutes to our colleague from Texas, a former appellate judge, 
Mr. Gohmert.
  Mr. GOHMERT. Madam Chairman, my time is short. I'll get right to some 
of these issues. I just have a copy of the bill here.
  Under the definition of ``religious organization,'' it actually 
excludes by definition schools, institutions that have been started by 
churches in which they set up their own boards, because it requires 
that the institution has to be in whole or in substantial part 
controlled, managed, owned or supported by the religion. So free-
standing educational institutions, bookstores, things like that, would 
be opened up. Because there is so much language, I think while the Boy 
Scouts felt they were safe by the past litigation, but this opens up 
that whole new can of worms and we can expect more litigation against 
the Boy Scouts.
  To add in some of these things like, you can bring a lawsuit for 
discrimination if you don't like your conditions. I had one lawsuit 
that went nowhere because a woman claimed she was moved from working on 
copper to working on aluminum and that was an insult. Under this, 
that's a legitimate lawsuit if you have manifested, acted or had people 
perceive you in such a way that they think you may be homosexual.
  What this does is it invites people to come apply for a job, and if 
they feel like they may not get a job, make utterances like, well, you 
think I'm gay, that's why, and they will have a lawsuit. I can 
guarantee you, many lawyers will encourage their clients, the 
employers, to pay something just to make it go away.
  Training programs are listed. If you don't get the seminar, then you 
can go in and say, you didn't give me that trip because you think I'm 
gay. There may be a lawsuit there. In fact, you could, and lawyers in 
some circumstances, I would say most circumstances, will say, yeah, you 
ought to settle with these guys because they can take you to the 
cleaners.
  There is a provision, though, here. Isn't it nice, we have a 
provision in here that says States shall not be immune under the 11th 
amendment. This legislation is just going to set aside an amendment to 
the Constitution legislatively. My goodness. That's pretty bold. Pretty 
bold. Then we get down to what the real issue may be here, attorneys' 
fees on page 18. You're getting attorneys' fees. All the tort reform 
that occurred on med mal, this will bring litigation many times over if 
this becomes law. But the good news for the United States is, we have a 
provision in

[[Page 30369]]

here, the United States will not be subject to punitive damages. Don't 
have a provision like that for States and for employers. So look out.
  What this Congress is now attempting to dictate is which religious 
beliefs and moral beliefs the majority believes are okay and which 
religious beliefs it feels are not okay. This will actually encourage 
people, whether they are gay or not, to flaunt or manifest what may be 
perceived to be characterizations to help the lawyers.
  Mr. GEORGE MILLER of California. I yield 2 minutes to the gentleman 
from Illinois (Mr. Emanuel).
  Mr. EMANUEL. Madam Chairman, more than 40 years ago, this House stood 
up in the name of America and did the right thing and passed sweeping 
civil rights legislation to protect men and women of all races from 
discrimination. By widening the circle of freedom to include those who 
stood outside its embrace, America strengthened the character of its 
democracy.
  And that is exactly what we are doing today with this vote. The Civil 
Rights Act of 1964 has had a profound impact on our Nation. But the 
work to create a more just, equal Nation that began decades ago is 
unfinished. This morning, in 30 States across this country, millions of 
gay and lesbian Americans went to work knowing full well that they 
could be fired simply because of their sexual orientation. Their job 
performance would have nothing to do with their being fired. In too 
many places simply being gay can cost you your job.
  We should all be able to agree that this type of discrimination is 
inconsistent with American values. But for too many gay and lesbian 
Americans, it is a reality. This Congress has a duty to make this form 
of discrimination a thing of the past. We should be gratified by the 
fact that many American employers already do the right thing and 
protect the rights of their workers. Many Fortune 500 companies take 
these type of policies. For those who say the private sector should be 
a guiding light for government, well, here is your chance to prove it.
  Some employers have failed to protect their workers, though, so this 
Congress has been left with the duty to make sure our values are 
represented in our laws. The Employment Non-Discrimination Act offers 
basic protections that everyone enjoys and takes for granted, except 
gays and lesbians, and this law allows it to be true for them. But more 
importantly, this bill is yet another important step forward in 
ensuring that justice and genuine equality for every American is the 
law of the land.
  Today, I hope my colleagues will join us to pass this critical 
legislation and continue this country's long-running commitment to 
eliminate discrimination in all its forms.
  Mr. KLINE of Minnesota. Madam Chairman, I am very pleased now to 
yield 2\1/2\ minutes to the gentleman from Pennsylvania (Mr. Pitts).
  Mr. PITTS. Madam Chairman, I rise in opposition to this ENDA bill. 
This bill, if signed into law, will have serious long-term implications 
on one of our most basic and treasured institutions, marriage. A 
Federal ENDA will provide activist judges with the legal ammunition to 
move toward the legalization of same-sex marriage. In fact, State ENDA 
laws are already being used by activist judges to impose gay marriage 
and civil unions on States.
  One example is the landmark decision by the Massachusetts Supreme 
Court which determined that there was ``no rational basis for the 
denial of marriage to same-sex couples.'' And this decision used the 
State ENDA laws in their argument. Another example took place in 
Vermont where the court ordered the State legislature to pass either a 
same-sex marriage or civil union law. Again, this case referenced 
existing State ENDA legislation. Another example is the New Jersey 
Supreme Court, which gave the State legislature 6 months to either pass 
a same-sex marriage law or civil union law, and the court cited New 
Jersey ENDA laws in defense of this ruling.
  Although ENDA is bad legislation on its face, more importantly, it is 
just one component of a larger strategy. An editorial in an activist 
publication recently compared this approach to building a house. It 
explains that hate crimes legislation is the foundation, ENDA is one of 
the walls, civil unions is the roof structure, and marriage is the 
shingles.
  The author states, ``When all the various above issues have been 
resolved, think of all the money that would be freed up to focus on 
marriage. We can lobby the President and Congress on repealing DOMA, 
while targeting the weakest States to repeal their one man-one woman 
amendments.''
  The strategy as laid out above is clear. ENDA is merely a building 
block for efforts to overturn traditional marriage laws and to impose 
same-sex marriage on States. I urge you to protect traditional marriage 
and oppose H.R. 3685.
  Mr. GEORGE MILLER of California. May I just say, Madam Chairman, it's 
a rather interesting set of remarks, except it has nothing to do with 
the underlying legislation that is before us today.
  I yield for the purpose of unanimous consent to the gentlewoman from 
New York.
  Mrs. MALONEY of New York. Madam Chairman, I rise in strong support of 
this bill, and I urge my colleagues to help make history today by 
taking this important step forward.
  Madam Chairman, I rise in strong support of this bill.
  I urge my colleagues to help make history today by taking this 
important step towards ensuring that discrimination based on sexual 
orientation will not be tolerated in the United States of America.
  In the year 2007, it is legal in 30 states to fire someone simply 
because he or she is gay, lesbian, or bisexual.
  Hardworking, tax-paying Americans shouldn't have to live with the 
constant, legitimate fear they could lose their jobs. No one should be 
discriminated against because of his or her sexual orientation or 
perceived sexual orientation.
  This bill will also lay the groundwork to provide sorely needed 
protections in the future to countless more Americans who need and 
deserve them.
  History has shown that progress in the struggle for civil rights has 
been hard fought and incremental.
  Most of our greatest legislative victories have only been achieved 
step by step.
  While the measure before us today is by no means complete or 
definitive, I believe that the passage of this measure today will lay 
the foundation to provide additional protections in the future for the 
entire LGBT community.
  So while I deeply regret that transgender Americans are not protected 
by this bill, I nonetheless urge my distinguished colleagues to support 
it. I do so with the knowledge and the determination that we will be 
back to continue to press the fight for all Americans to live free from 
discrimination.
  Mr. GEORGE MILLER of California. I yield 1 minute to the gentleman 
from Minnesota (Mr. Ellison).
  Mr. ELLISON. Madam Chairman, today is a very proud day for me. I am 
proud to be an American today because when this ENDA bill passes, what 
we will be doing is affirming traditional values, traditional values 
like tolerance, traditional values like minding your own business, 
traditional values like allowing fellow Americans to rise to the full 
measure of their ability, traditional values, values that have made 
this country endure and pass the test of time.
  Opportunity and traditional values is what this ENDA bill is all 
about. This bill has nothing to do with the institution of marriage. 
This bill is about giving opportunity to fellow Americans so that we 
can reap the full benefit, the talent, the creativity, this hardworking 
ethic of both gay and lesbian and all Americans. All.
  This bill today makes me proud to be an American and makes me very, 
very happy to vote for it, and I do hope all of our Members do.
  Mr. KLINE of Minnesota. Madam Chairman, I am very pleased now to 
yield 4 minutes to the Republican whip, the distinguished gentleman 
from Missouri (Mr. Blunt).

                              {time}  1545

  Mr. BLUNT. Madam Chairman, I thank the gentleman for yielding.
  Madam Chairman, I am in opposition to the bill. It goes without 
saying that

[[Page 30370]]

the authors of our Nation's founding document understood better than 
most that freedom to practice one's religion represents one of the most 
fundamental, most inalienable rights bestowed on us. It was, after all, 
the reason that many came to America, the reason that many fought to 
found America. The Founders made sure to include the free exercise of 
religion among the first rights they included in the Constitution.
  While the Founders saw the Constitution as a means of ensuring 
religious freedom and that that be protected at all levels, this bill, 
innocently enough, named the Employment Non-Discrimination Act, would 
actually have the effect of rolling back these protections, depending 
on where you happen to work. Perhaps even worse, it deliberately sets 
out to create a constitutional conflict between one's right to 
religious freedom and another's right to sue you for practicing it.
  Madam Chairman, the tension this bill could create is not difficult 
to foresee in practice. For instance, if you chose to keep a Bible at 
your work station or perhaps even display in your cubicle a verse you 
found particularly meaningful, the legal question is simple created by 
this legislation: Can one or more of your coworkers seeing that 
passage, seeing that Bible, understanding there are passages there 
about homosexuality, bring suit against you and your employer on the 
grounds that mere presence of religious symbols constitutes a ``hostile 
workplace'' in which they are being forced to work?
  The answer, it seems to me, depends more on where you work than 
whether or not the Bible's position on your desk is offensive. 
Employees, for example, at Southwest Baptist University, where I was 
the president before I came to Congress, would be exempt from the 
standards of this measure because they have a relationship with a 
specific denomination. But employees of either a Christian bookstore or 
a Muslim bookstore would be granted no such dispensation, potentially 
being forced to choose between upholding the faith positions upon which 
they are based and on which they acquire customers and complying with a 
law that says the free exercise of religion can be abrogated by a whim 
of Congress. This is the wrong decision for us to expect them to make. 
We are told, however, that any of the legal questions here will be 
decided and settled in court. The very reason the Constitution 
established this exercise of religion as the first of all the 
amendments is so these issues would not have to be settled in court.
  There is really no reason here to create a new protected class. This 
bill puts this newly protected freedom on a collision course with the 
oldest of all the protected freedoms, the freedom of religion. The 
inevitable upshot of pitting two classes of people against each other, 
one protected by the Constitution, the other by Congress, is 
litigation, and lots of it. We don't need to create more reasons for 
litigation in the country. We don't need to create differences from 
court jurisdiction to court jurisdiction. We need to go back and look 
at this issue again. We need to defeat this bill today. I urge my 
colleagues to vote ``no.''
  Mr. GEORGE MILLER of California. Madam Chairman, I reserve the 
balance of my time.
  Mr. KLINE of Minnesota. Madam Chairman, I yield 2\1/2\ minutes to my 
friend, the gentleman from Indiana (Mr. Pence).
  Mr. PENCE. Madam Chairman, I thank the gentleman for yielding.
  Madam Chairman, I come before the House today in strong opposition to 
H.R. 3685, the Employment Non-Discrimination Act. However well-
intended, the bill extends existing employment discrimination 
provisions of Federal law like those contained in title VII of the 
Civil Rights Act to prohibit employment discrimination based on sexual 
orientation.
  Let me be clear. I don't condone discrimination against people for 
any reason whatsoever. I believe in civility and decency in society. 
But the problem here is that by extending the reach of Federal law to 
cover sexual orientation, employment discrimination protections, in 
effect, can wage war on the free exercise of religion in the workplace. 
In effect, as has been said already, this sets up something of a 
constitutional conflict between the right to religious freedom in the 
workplace and another person's newly created right to sue you for 
practicing your faith or acknowledging your faith in the workplace. 
This is, as has been said before, a deeply enshrined tradition in the 
American experiment, emanating, as it does, out of the first amendment 
of the Constitution of the United States.
  Some examples: Under ENDA, employees around the country who possess 
religious beliefs that are opposed to homosexual behavior would be 
forced, in effect, to lay down their rights and convictions at the 
door. For example, if an employee keeps a Bible in his or her cubicle, 
if an employee displays a Bible verse on their desk, that employee 
could be claimed by a homosexual colleague to be creating a hostile 
work environment because the homosexual employee objects to passages in 
the Bible relating to homosexuality.
  The employer is in a no-win situation as well. Either the employer 
has to ban employees from having a Bible at the workplace for their 
break time, or displaying Bible verses, and thereby face a lawsuit 
under title VII for religious discrimination, or the employer then has 
to continue to allow it and face a potential lawsuit under ENDA by the 
homosexual employee. This sets up a constitutional conflict headed for 
the courts, about which Congress should not involve itself.
  Madam Chairman, I strongly oppose the Employment Non-Discrimination 
Act. We must stand for the right of every American to practice their 
faith according to the dictates of their conscience, whether it be in 
the public square or in the workplace. So I oppose the Employment Non-
Discrimination Act and urge my colleagues to do likewise.
  Mr. GEORGE MILLER of California. Madam Chairman, I yield 30 seconds 
to the gentleman from New Jersey (Mr. Andrews).
  Mr. ANDREWS. Madam Chairman, the record should reflect some accuracy 
in the point two of our friends just made that the proposition that the 
display of a religious artifact such as a Bible in and of itself 
creates a hostile work environment. There is not a shred of that in 
this bill, nor is there a shred of case law anywhere in the 42-year 
history of title VII that supports that claim. The majority certainly 
is welcome to supplement the record if we are wrong. I just don't see 
it.
  Mr. GEORGE MILLER of California. I yield 1 minute to the gentlewoman 
from Wisconsin (Ms. Moore).
  Ms. MOORE of Wisconsin. Madam Chairman, the opponents of H.R. 3685 
have asked the question: What does perceived sexual orientation mean? 
It's when folks proclaim to have some sort of psychic ability to know 
who's gay. They have so-called ``gay-dar,'' so that a man who perhaps 
is slightly built or a woman like myself who has a deep voice is 
perceived to be homosexual and they could be discriminated against in 
the workplace.
  I can tell you that hundreds of thousands of school children will 
pass through these Chambers in the years to come, and as the guides in 
the visitors bureau talk about the history of this Chamber, this will 
be a signature moment, and I want to be identified as one of the people 
who stood up to the last vestige of discrimination in our country.
  Mr. KLINE of Minnesota. Madam Chairman, I am pleased now to yield 
1\1/2\ minutes to my friend, the gentleman from Indiana (Mr. Souder).
  Mr. SOUDER. Madam Chairman, I would like to insert into the Record a 
letter from Agudath Israel of America on how this impacts Orthodox 
Jewish groups and their reasons they are opposing this, and an article 
by Andrew Sullivan, a gay editor of The New Republic, who correctly 
points out that, in fact, this does not meet the discrimination 
standards in the sense of, if we were having a situation in America 
where gays, homosexuals couldn't get jobs, it would be a different 
challenge.

[[Page 30371]]

  But I wanted to make a couple of points. There is a great irony to 
this bill. In the faith-based debate, we couldn't get title VII 
included, and now the Democrats have included it in this bill.
  The Democrats opposed the Defense of Marriage Act, and now they are 
putting it in this bill.
  Why does the bill exempt the military? Why can government 
discriminate and the private sector not discriminate? How in the world 
is this going to be upheld in court, to be able to hold a standard that 
the military can discriminate, that religious groups can discriminate, 
but Christian bookstores can't discriminate?
  Clearly, in this bill the majority has tried to provide political 
cover, a fig leaf, so they can try to move a bill through, knowing full 
well that once you have the underlying bill, these other protections 
are going to be stripped out over time. It is internally inconsistent 
and ironic that the very people who oppose these things now insert them 
in this bill.
  Another irony in this bill is that apparently the Boy Scouts' paid 
employees fall under this, but their volunteers don't. But this raises 
a question, what if they get their mileage reimbursed? What if they get 
expense reimbursement? It leads to a question of what if they go on and 
off the payroll. What about if they get a tax deduction? A lot of the 
reasons religious organizations are concerned about this is that is, in 
fact, a government benefit. Once we have a law that states that 
discrimination against homosexuals is wrong, this is obviously open to 
court interpretation, as many others are.
  This is a bill fraught with so many problems that it should not see 
the light of day.

                                    Agudath Israel of America,

                                 Washington, DC, November 5, 2007.
     Honorable Members,
     House of Representatives.
       As the House of Representatives prepares to vote on H.R. 
     3685, the Employment Nondiscrimination Act, I write on behalf 
     of Agudath Israel of America, a national Orthodox Jewish 
     organization, to urge you to oppose the measure.
       In an earlier correspondence, we explained in detail our 
     key concerns regarding the legislation, particularly the 
     shortcomings of the exemption for religious organizations set 
     forth in Section 6. We will summarize them here:
       Religious Freedom of Religiously-Controlled Charities Might 
     be in Jeopardy. The exemption, by reference to Title VII, 
     covers religious corporations and educational institutions 
     controlled by religious corporations. Courts have given us no 
     clarity as to whether Title VII protects independently-
     incorporated, secular, charities that are ``in whole or in 
     substantial part controlled, managed, owned or supported by a 
     particular religion, religious corporation, association or 
     society.'' Because this bill on its face fails to settle this 
     issue, thousands of charities could be adversely affected.
       Secular Institutions Employing Religious Workers will not 
     be Protected. Secular social service agencies or religiously-
     related businesses that employ workers that abide by certain 
     religious/traditional tenets would not be protected. Unlike 
     Title VII, where discrimination based on religion, sex or 
     national origin is permitted when such status is a ``bona 
     fide occupational qualification (BFOQ),'' no similar 
     provision is included in ENDA when ``sexual orientation'' is 
     a BFOQ.
       Religious Groups that Avail themselves of Protection May 
     Face Retaliation. In recent years, traditional values groups 
     that adhere to constitutionally protected membership policies 
     based on sexual orientation have faced various forms of legal 
     disability from local governments. Groups claiming ENDA's 
     exemption should not be treated as pariahs. The bill should 
     include protection against retaliation.
       Thank you for considering our views
                                                 Rabbi Abba Cohen,
     Director and Counsel.
                                  ____


                   [From The Advocate, Apr. 14, 1998]

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

                          (By Andrew Sullivan)

       Before I make myself irreparably unpopular, I might as well 
     start with a concession. Almost all the arguments the 
     fundamentalist right uses against gay ``special rights'' are 
     phony ones. If there's legal protection for Blacks, Whites, 
     Jews, Latinos, women, the disabled, and now men in the 
     workplace, then it's hard to see why homosexuals should be 
     excluded.
       It's also true that such laws would ban discrimination 
     against straights as well as gays, and so they target no 
     single group for ``special'' protection. Nevertheless, 
     there's a reason the special rights rhetoric works, and that 
     is because it contains a germ of truth. However evenhanded 
     antidiscrimination laws are in principle, in practice they're 
     designed to protect the oppressed. So while the laws pretend 
     to ban discrimination on the neutral grounds of sex, race, 
     ethnicity, or disability, they really exist to protect women, 
     Blacks, Latinos, the disabled, and so on. They are laws that 
     create a class of victims and a battery of lawyers and 
     lobbyists to protect them.
       The real question, then, is this: Are gay people generally 
     victims in employment? Have we historically been 
     systematically barred from jobs in the same way that, say, 
     women, Blacks, and the disabled have? And is a remedy 
     therefore necessary? My own view is that, while there are 
     some particular cases of discrimination against homosexuals, 
     for the most part getting and keeping jobs is hardly the most 
     pressing issue we face. Aided by our talents, by the ability 
     of each generation to avoid handing on poverty to the next, 
     and by the two-edged weapon of the closet, we have, by and 
     large, avoided becoming economic victims. Even in those 
     states where job-protection laws have been enacted, sexual 
     orientation cases have made up a minuscule proportion of the 
     whole caseload.
       Most people--gay and straight--know this to be true; and so 
     they sense that the push for gay employment rights is 
     unconvincing and whiny. I think they're right. The truth is, 
     most gay people are not victims, at least not in the economic 
     sense. We may not be much richer than most Americans, but 
     there's little evidence that we are much poorer. Despite 
     intense psychological, social, and cultural hostility, we 
     have managed to fare pretty well economically in the past few 
     generations. Instead of continually whining that we need job 
     protection, we should be touting our economic achievements, 
     defending the free market that makes them possible, investing 
     our resources in our churches and charities and social 
     institutions, and politically focusing on the areas where we 
     clearly are discriminated against by our own government.
       The problems of gay and lesbian Americans are not, after 
     all, systematic exclusion from employment. They are (to name 
     a few off the top of my head): a recourse to the closet, a 
     lack of self-esteem, an inability to form lasting 
     relationships, the threat of another epidemic, exclusion from 
     our own churches, and our own government's denial of basic 
     rights, such as marriage, immigration, and military service. 
     In this sense, employment discrimination is a red herring. 
     National gay rights groups love it because they are part of 
     the lobbyist-lawyer nexus that will gain from it and because 
     their polls tell them it's the least objectionable of our 
     aims. But anyone could tell them it's the least objectionable 
     because it's the least relevant.
       Of course, we're told that until we're protected from 
     discrimination in employment, we'll never be able to come out 
     of the closet and effect the deeper changes we all want. But 
     this is more victim-mongering. Who says gay people can't risk 
     something for their own integrity? Who says a civil rights 
     revolution can only occur when every single protection is 
     already in place? If African-Americans in the 1960s had 
     waited for such a moment, there would still be segregation in 
     Alabama.
       Our national leaders should spend less time making excuses 
     for us and more time challenging us to risk our own lives 
     and, yes, if necessary, jobs to come out and make a 
     difference for the next generation. An ``equal rights'' 
     rather than ``special rights'' agenda would focus on those 
     areas in which gay people really are discriminated against. 
     After all, have you heard any fundamentalist ``special 
     rights'' rhetoric in the marriage debate? Or in the military 
     battle? Not a squeak. What you hear instead is a revealing 
     mumble of bigotry in opposition. And in these areas of clear 
     government discrimination, we stand on firm, moral ground 
     instead of the muddy bog of interest-group politics. In an 
     equal-rights politics, we reverse the self-defeating logic of 
     victim culture. We are proud and proactive instead of 
     defensive and cowed. And we stop framing a movement around 
     the tired 1970s mantra of ``what we want'' and start building 
     one around the 1990s vision of ``who we actually want to 
     be.''

  Mr. GEORGE MILLER of California. Madam Chairman, I yield myself 1 
minute.
  Madam Chairman, I appreciate the frustration of my colleagues on the 
other side the aisle. They really don't like this bill. They don't 
believe that we should be outlawing discrimination against gay and 
lesbian individuals. What they are upset about is that most of the 
handles that they thought they could grab on to to destroy the 
consensus for this bill are gone.
  Why are they gone? Because we went through a markup. We listened to 
our colleagues on the other side, and we made adjustments. We had a 
religious exemption in that many of the religious organizations 
strongly supported. We listened to the debate. We went back to them and 
suggested that a straight exemption from title VII would be preferable 
for all of those involved.

[[Page 30372]]

  So we have continued to listen as that process has gone through. And, 
yes, we have a bill here now that is far more acceptable to far more 
Members of the Congress of the United States because it does what it 
says it is going to do.
  Madam Chairman, I yield 1\1/2\ minutes to the gentlewoman from 
California (Mrs. Davis).
  Mrs. DAVIS of California. Madam Chairman, I rise in support, but I am 
sorry we are not debating a more inclusive gender identity bill today, 
which I would have supported, and let me tell you why.
  Employment discrimination strikes at a fundamental American value, 
the right of each individual to do his or her job without facing unfair 
discrimination. Transgendered people are among the most marginalized 
and vulnerable groups within the LGBT community.
  I worked with a nationally known landscape architect as a member of 
the San Diego School Board that San Diegans know today as Vicki 
Estrada. Vicki Estrada spent the first 50 years of her life as Steve 
Estrada. Soon after Steve became Vicki, she was assured by a leader 
within the California Department of Transportation, where Vicki worked 
as a contractor, that she would be treated no differently.
  Vicki had only a few problems with her transition, for two reasons: 
She had an internal advocate and the comprehensive protection of 
California State law. Others, Madam Chairman, are not so lucky, which 
is why it is so important for us to provide inclusive Federal 
protections.
  I urge my colleagues to join me in continued support of the entire 
LGBT community, and I also urge them to join me in supporting this 
bill.
  Mr. KLINE of Minnesota. Madam Chairman, for the purpose of making a 
unanimous consent request, I yield to the gentleman from Connecticut 
(Mr. Shays).
  Mr. SHAYS. Madam Chairman, I rise in strong support of this 
legislation.
  Madam Chairman, the Employment Non-Discrimination Act (or ENDA) is a 
common-sense solution to a very serious problem in the workplace. It:
  Prohibits employers from making decisions about hiring, firing, 
promoting or compensating an employee based on sexual orientation;
  Makes clear that preferential treatment and quotas are strictly 
prohibited, and that no claims will be permitted based on statistics 
about gays and lesbians in the workforce.
  Until the 109th Congress, ENDA had been reintroduced in every 
Congress since 1994.
  Our staff members' sexual orientation is no business of ours, and is 
irrelevant to their ability to perform the job.
  One frequent objection to ENDA is that it would extend ``special 
rights'' to homosexuals.
  That is simply not the case.
  Gays and lesbians don't want special rights, they want the same as 
other Americans: equal protection under the law.
  And they deserve no less.
  ENDA supporter and former senator Barry Goldwater wrote: There was no 
gay exemption in the right to ``life, liberty, and the pursuit of 
happiness.'' Job discrimination against gays--or anybody else--is 
contrary to each of these founding principles. Anybody who cares about 
real moral values understands that this isn't about granting special 
rights it's about protecting basic rights.
  Paul Allaire, the former Chairman of the Board of Directors for 
Xerox, which is headquartered in Stamford, recognized the importance of 
non-discrimination policies when he wrote: We view diversity awareness 
and acceptance as enablers to increased productivity. We strive to 
create an atmosphere where all employees are encouraged to contribute 
to their fullest potential. Fear of reprisals on the basis of sexual 
orientation only serves to undermine that goal.
  When ENDA is passed--a process that may take some time--working 
Americans who happen to be gay or lesbian will only have to prove 
themselves in the workplace and the employment market on the basis of 
their talents and abilities, just like other Americans.
  They will be able to do so without fear of dismissal for any reason 
unrelated to the workplace.
  Mr. GEORGE MILLER of California. Madam Chairman, I yield 1 minute to 
the distinguished majority leader, the gentleman from Maryland (Mr. 
Hoyer).
  Mr. HOYER. Madam Chairman, I thank the gentleman from California, the 
chairman of the committee, for yielding the time.
  Madam Chairman, America was regaled today by the President of France, 
and he talked about America's values. He said that is why the world 
loves America, because of its values.
  Now, whether all the world loves America's actions all the time is 
another question, but they know that one of our cardinal values was 
that we believe that all men and women are created equal and endowed by 
their creator with certain inalienable rights, and among these are 
life, liberty and the pursuit of happiness. No one in America believes 
that you can pursue life, liberty and the pursuit of happiness without 
the opportunity to have employment.
  In America, we have discriminated historically against various groups 
of people. Some because of the color of their skin. Some because of 
their gender. Some because of their religion. Some because of their 
ethnic origin. There have been all sorts of reasons throughout our 
history that we have discriminated against people.

                              {time}  1600

  Madam Chairman, for more than 200 years our great Nation has fought 
for and advanced the timeless values and ideals that are embodied in 
our constitution: fairness, justice and equality under law.
  And today through this bipartisan legislation, the Employment Non-
Discrimination Act, we again take a momentous step in breaking down 
centuries of rank injustice, unthinking prejudice, and unjustified 
discrimination against gay and lesbian Americans.
  It could be gays and lesbians, it could be African Americans, it 
could be Catholics, it could be Baptists like me. We have all been 
discriminated against from time to time. It could be a Jew. It could be 
somebody of any other arbitrary distinction.
  What this country really believes is that we should not discriminate 
against anybody. It so happens this bill describes one somebody, but it 
really refers to everybody. And it really is saying in this just 
Nation, we believe in equal opportunity.
  When the Congress passed the Civil Rights Act of 1964, it prohibited 
employment discrimination based on race and gender; discrimination that 
often was open and far too often regarded as acceptable.
  Frankly, my colleagues, as we sit here in this Chamber, hopefully all 
435 of us believe that if we had lived in another time a half a century 
ago or perhaps a century ago, we would have even then thought it was 
wrong to discriminate against somebody because of the color of their 
skin. But we know that too many of our predecessors voted to allow and 
to further discrimination against people because of their color.
  I presume that some of those looked back after their service in this 
body maybe 10 or 20 years later and said, I am historically sorry that 
I cast that discriminatory vote. I hope that none of my colleagues find 
themselves in that place today or tomorrow, and tomorrow or 10 years 
from now.
  We have expanded the scope of the law's protection to prohibit 
employment discrimination based on religion, color, national origin, 
and disability. Today, through this historic civil rights legislation, 
we would simply add sexual orientation as a protected class, because 
even in 2007, there is little doubt that gay and lesbian Americans are 
too often the object of discrimination, not because of their actions 
but because of who they are. America believes that's wrong. That's what 
President Sarkozy was saying today.
  Madam Chairman, let us be clear. This legislation is consistent with 
our values, our ideals, and America's long history of social progress. 
Thus, the question before us today is not only whether we will choose 
to do the right thing and pass this bill, but whether we will choose to 
stand on the right side of history; saying to some of our fellow 
citizens yes, you may be different than we are, but you are entitled by 
our Constitution and by our God and by our values to equal treatment 
under law.
  This legislation, in fact, is the logical extension of the law in 
some 20 States

[[Page 30373]]

that prohibit employment discrimination based on sexual orientation. I 
should note that the Federal Government, we have taken that action. All 
the people who work for us, we bar discrimination against them based 
upon sexual orientation.
  Madam Chairman, as the lead House sponsor of the landmark Americans 
with Disabilities Act, I harbor no illusions that this legislation will 
topple centuries of prejudice overnight or that we can legislate that 
prejudice out of existence. That is probably not possible. But what we 
can do, what we ought to in fairness do this day is say that it is not 
lawful in the United States to have that prejudice prevent the pursuit 
of happiness and the enjoyment of opportunities offered by this great, 
fair and just Nation.
  I urge my colleagues to stand with great pride, to vote against 
discrimination in this great, just land we call America.
  Mr. KLINE of Minnesota. Madam Chairman, I reserve the balance of my 
time.
  Mr. GEORGE MILLER of California. Madam Chairman, I yield 1 minute to 
the gentleman from Virginia (Mr. Moran).
  Mr. MORAN of Virginia. Madam Chairman, the function of this Congress 
is to answer the question: Who are we? And one of the most defining 
characteristics of who we are is that we are a meritocracy. That is the 
reason why we are as strong and as wealthy and as influential as we are 
all over the globe. People come from all parts of the globe to America 
because they know that they will be judged here on the basis of their 
goodness as a member of society and their ability as a contributor to 
our economy. That's all this legislation does.
  The people that it is directed to have no more control over their 
sexual orientation than the color of their skin. All we are saying is 
that you will be judged on your ability to contribute, not on any other 
artificial distinction.
  As a sponsor of ENDA, I would have favored the further amendment by 
Congresswoman Baldwin, but the fact is that this is a civil rights 
struggle, and struggles take time. But this measure today is a powerful 
sign of enlightenment and progressive change in America. It is defining 
legislation. I urge all my colleagues to vote for it.
  Mr. GEORGE MILLER of California. Madam Chairman, I yield 1\1/2\ 
minutes to the gentleman from South Carolina (Mr. Clyburn), the 
distinguished majority whip in the House.
  Mr. CLYBURN. Thank you, Mr. Chairman, for yielding me time.
  Madam Chairman, I rise in strong support of the Employment Non-
Discrimination Act. As a former civil rights activist in South Carolina 
who has been incarcerated a number of times for advocating equal 
treatment for all, I have come to find that our Nation's civil rights 
issues are in fact human rights issues.
  Whether you are talking about allowing people of color to sit and eat 
at lunch counters or about ensuring that gay and lesbian Americans can 
freely go to work and earn a living without fear of being discriminated 
against, you are talking about basic human rights.
  Madam Chairman, before I came to Congress, I spent 18 years as South 
Carolina's human affairs commissioner. In that position, I came to find 
that bigotry and homophobia are sentiments that should never be allowed 
to permeate the American workplace. Such intolerance does nothing but 
take us back to a dark moment in our Nation's history that most of us 
never want to revisit.
  I implore my friends on the other side of the aisle to stop 
misconstruing this issue as a marriage issue. This is an employment 
issue, not a marriage issue. And this bill does nothing to infringe on 
the institution of marriage which I have cherished for more than 46 
years.
  By passing this bill, Members of the House go on record as wanting to 
end discrimination in the workplace and not allowing its ugly face to 
persist. I urge my colleagues to bring fairness to the American 
workplace and support this important legislation.
  Mr. KLINE of Minnesota. Madam Chairman, I continue to reserve.
  Mr. GEORGE MILLER of California. Madam Chairman, I yield 1 minute to 
the gentleman from Washington (Mr. Inslee).
  Mr. INSLEE. Madam Chairman, this bill is about discrimination, but it 
is also about economic competition.
  Thinking about this bill today, I was thinking about the 1964 
University of Washington Huskies football team that went to the Rose 
Bowl. They had a slashing, tough, brutal halfback named Dave Kopay, a 
boyhood hero of mine. He helped them go to the Rose Bowl. Later on 
after he goes to the NFL, we learn he is gay. If the UW hadn't put that 
guy in, there are several games they would not have won.
  And if software companies don't hire gay software engineers, they 
will not be economically competitive with the rest of the world. In 
America, let's get one thing real clear: All good athletes play and all 
good software engineers engineer and all good workers work. That's the 
American way. Let's pass this bill.
  Mr. KLINE of Minnesota. Madam Chairman, I continue to reserve.
  Mr. GEORGE MILLER of California. I yield 1 minute to the gentleman 
from Illinois (Mr. Kirk).
  Mr. KIRK. Madam Chairman, if our Constitution stands for anything, it 
is the ideal of individual liberty. To defend that liberty, we support 
democracy. But underneath both of those key values in the West, we 
believe in tolerance for our Federal citizens. Tolerance.
  In Nazi Germany, they killed Jews and gypsies; but they also killed 
homosexuals. Thanks to us, the Nazis were defeated by the tolerant 
democracies of the West.
  Our history is one of expanding tolerance. First, that all white men 
are equal; then all men; then all men and women. These are the civil 
rights achievements of the 20th century. Now it is our turn to offer 
protection for those of a different orientation.
  From the Land of Lincoln, our country is the leader in advancing the 
toleration values of the West. This bill is already the law in the Land 
of Lincoln; but today, we go forward to make it the law for all.
  Mr. ANDREWS. Madam Chairman, I yield 1 minute to the gentleman from 
Florida (Mr. Hastings), a distinguished member of the Rules Committee.
  Mr. HASTINGS of Florida. I thank the distinguished gentleman for 
yielding to me.
  Madam Chairman, yesterday in the Rules Committee I commented that 
democracies should be about tolerance. Democracies and religions should 
be about tolerance.
  Today we get an opportunity to manifest our tolerance within the body 
politic of this country. And it is an important day, just as 1964 was 
an important day for passage of the Civil Rights Act. As one who has 
stood in this struggle with brothers and sisters throughout this land 
to make this country live up to all of the creeds that are our values, 
American values, we cannot nor should we ever permit discrimination in 
the workplace or anyplace. It is wrong, it is intolerant, and it is un-
American. I urge my colleagues to support this measure.
  Mr. KLINE of Minnesota. Madam Chairman, could I inquire how many 
speakers my friend has?
  The CHAIRMAN. Each side has 2\1/2\ minutes remaining.
  Mr. ANDREWS. Madam Chairman, we have two speakers remaining, 
including the Speaker.
  Mr. KLINE of Minnesota. Very well, then I will continue to reserve my 
time to close.
  Mr. ANDREWS. Madam Chairman, I yield 1\1/2\ minutes to an icon in the 
protection of human and civil rights in our country, a hero for our 
generation, the gentleman from Georgia (Mr. Lewis).
  Mr. LEWIS of Georgia. Madam Chairman, I want to thank my friend for 
yielding.
  Madam Chairman, I for one fought too long and too hard to end 
discrimination based on race and color not to stand up against 
discrimination against our gay and lesbian brothers and sisters. During 
the 1960s, we broke

[[Page 30374]]

down those signs that said ``white'' and ``colored.''
  Call it what you may, to discriminate against someone because they 
are gay is wrong. It is wrong; it is not right. There is not any room 
in our society for discrimination. Today, we must take this important 
step after more than 30 long years and pass the Employment Non-
Discrimination Act. It is the right thing to do. It is the moral thing 
to do.

                              {time}  1615

  Let us do it, not just for this generation, but for generations yet 
unborn.
  Today, we have an opportunity to bring down those signs. Now is the 
time to do what is right, what is fair, what is just. The time is 
always right to do right. Let us pass this bill.
  Mr. KLINE of Minnesota. Madam Chairman, I yield myself the balance of 
our time.
  Today, we're considering a truly far-reaching modification to civil 
rights policy. There are some here who want this proposal to go even 
further, and we've heard that, while many of us believe that it already 
goes too far.
  The free exercise of religion is fundamental; yet this bill could 
infringe upon it. The right of States to define and protect marriage is 
fundamental; yet this bill would undermine it. When enacting new 
Federal mandates, we should be seeking policies that employers can 
successfully implement; yet this bill is vague and subjective and 
invites costly litigation.
  We heard a discussion earlier about the concerns in employment law 
around a hostile work environment and what this newly protected class, 
how this would fit into that. It was asked, could an employee have a 
quote from the Bible that soundly condemns homosexuality, would that in 
itself create a hostile work environment. I would say we do not know 
the answer to that question. This is a boon for trial lawyers and court 
cases stacked up like cordwood.
  Because of these concerns, Madam Chairman, the White House issued a 
Statement of Administration Policy indicating that if this bill were to 
reach the President's desk, his senior advisers would recommend that it 
be vetoed. The administration identified a number of concerns, both on 
a constitutional level and with the underlying policy. Unfortunately, 
these concerns have not been given the full attention they deserve in 
this debate.
  The number of amendments has been seriously limited. We have seen an 
extraordinary step of putting in the rule a mandatory withdrawal of a 
proposed amendment. This deserves a fuller examination.
  Republicans were prevented from offering key amendments that would 
have highlighted and attempted to correct some of the more glaring 
problems which we see in the underlying bill. As a result, Madam Chair, 
H.R. 3685 remains fatally flawed.
  I oppose the bill and urge my colleagues to join me in voting ``no'' 
on this overreaching proposal.
  Madam Chairman, I yield back the balance of our time.
  Mr. ANDREWS. Madam Chairman, at this time, it is my honor to yield 1 
minute to a woman of faith and strength, the leader of our House, our 
Speaker, the gentlelady from California.
  Ms. PELOSI. Madam Chairman, I thank the gentleman for yielding and I 
thank Mr. Andrews of New Jersey for his leadership on this important 
issue. He knows, as does the chairman of the full committee, Mr. 
Miller, that discrimination has no place in America. Our country is a 
great country because we recognized that long ago, but we have more 
work to do.
  I thank them both for their strong leadership in fighting 
discrimination and thank them for, in the case of Mr. Miller, decades 
of service and leadership on social justice. I commend Mr. Andrews for 
his commitment to protecting the rights of America's workers.
  This is truly an historic day. Today, the House of Representatives 
will consider and hopefully pass for the first time the Employment Non-
Discrimination Act, or ENDA. As someone who has looked forward to this 
day for 20 years that I have served in Congress, it is a joyous 
occasion. It simply would not have been possible without the 
outstanding leadership and courage of Chairman Barney Frank and of 
Congresswoman Tammy Baldwin. Anyone who cares about a country without 
discrimination is deeply in debt to Tammy Baldwin and to Barney Frank 
for their leadership in this regard.
  While ENDA's victory will represent an historic victory, I share the 
disappointment of Tammy Baldwin, Barney Frank and others who support 
including protection for transgender individuals in ENDA. While I had 
hoped that we could have included gender identity, I support final 
passage of ENDA because its passage will build momentum for further 
advances on gender identity rights and the rights of all Americans.
  America is a country that is great and wealthy, but we cannot afford 
to squander the talents of any of our citizens, nor should we. We all 
benefit if everyone gets a chance to work hard and support their 
families. Yet today, in 30 States an American can be denied a job or 
fired because they are gay, lesbian, bisexual or transgender. This is 
wrong. Working Americans should be judged on one criterion, their job 
performance, and not be subjected to prejudice.
  Madam Chairman, our history teaches us that progress on civil rights 
is never easy. It is often marked by small and difficult steps. We must 
take this step today toward the ideal of equality that is both our 
heritage and our hope.
  I've heard the use of the word ``tolerance'' today, and I respect the 
use of that word, but if I may respectfully depart from it and say that 
in my community that is blessed with a diverse community, our diversity 
is of all kinds: religion, gender identification, religious faith and 
the rest. And I always say that the beauty is in the mix. And it's not 
that we're tolerant in my district in California in San Francisco; it 
is that we have so much respect for the role that each person plays in 
our society.
  So tolerance, maybe; respect, definitely. But let me also add that it 
is the pride that we take in that diversity, and it is the pride that I 
take in the gay, lesbian, bisexual and transgender community that 
brings me to the floor today to urge a ``yes'' vote on this important 
legislation.
  Ms. LINDA T. SANCHEZ of California. Madam Chairman, at the outset, 
I'd like to note that I did not vote for this bill in Committee, not 
because I don't support its goals--I do--but because I strongly believe 
that we could have done better by protecting more people from 
discrimination.
  That is why I am proud to support the amendment by my colleague from 
Wisconsin, that will add a prohibition against gender identity 
discrimination. This amendment is needed because protecting transgender 
people is the right thing to do. We're talking about a small group of 
people, but a group that faces tremendous discrimination and that 
deserves to be protected from workplace discrimination just as much as 
anybody else.
  Now that this bill is out of committee and on the floor, let me be 
clear, I will vote for it because it extends a basic right to millions 
of Americans. And that right is the right to go to work and earn a 
living.
  That's all, just the right to support themselves and their families. 
It is a right that is so basic that I'm appalled that some in this 
Chamber actually oppose this bill.
  What is so problematic about protecting Americans from losing their 
jobs, not due to job performance, but due to bigotry?
  Americans believe that if you work hard and do your job, you should 
be rewarded. And Americans believe that this basic principle should 
apply across the board.
  Poll after poll reveal that an overwhelming majority of Americans 
agree someone shouldn't lose a job or be denied a promotion simply for 
being gay or lesbian.
  Americans also believe that it is already illegal to do so. 
Unfortunately, in many states, it isn't. That's why this bill is so 
important.
  The passage of this bill is just one part of an overall effort to 
improve the lives of working Americans. So far this year, the New 
Direction Congress has already worked to increase the opportunities 
available to working Americans and their families.
  We have increased the minimum wage.
  We have made college more affordable by increasing Pell Grants and 
reducing interest rates on student loans.

[[Page 30375]]

  We have investigated the Administration's failure to protect workers 
on the job, and begun efforts to ensure that the Occupational Safety 
and Health Administration and Mine Safety and Health Administration do 
their jobs: keep workers safe so they can go home to their families 
after a day's work free of injury and disease.
  It is wrong to deny someone a job, a raise, or a promotion because of 
his or her real or perceived sexual orientation. And it is past time 
for Congress to say so.
  Ending employment discrimination against gay, lesbian, and bisexual 
people by enacting ENDA is such a common sense solution, and so 
consistent with the American principles of freedom, justice, and 
equality that it's amazing to me that in 2007, we still haven't passed 
this bill.
  Let's work together to make the ``American Dream'' a reality for 
millions of Americans. Let's vote for the Baldwin amendment and pass 
this bill.
  Ms. ESHOO. Madam Chairman, I rise today to express my strong support 
for The Employment Non-Discrimination Act, ENDA. I was an original 
cosponsor of this bill when it was first introduced in 1994 and have 
supported it ever since.
  This legislation is a long time in coming. For years we've had 
workplace protections in place for race, religion, gender, national 
origin, age, and disability, but nothing to cover sexual orientation. 
Surprisingly, in 2007, it's still legal to fire someone based on their 
sexual orientation in 30 different States. ENDA will extend Federal 
employment discrimination protections to include sexual orientation for 
all workers.
  This bill will not impose new costs and obligations on employers. 
ENDA will not require employers to give benefits to partners of gay, 
lesbian, or bisexual employees, although I believe they should. ENDA 
will not set ``quotas'' for hiring or provide special rights to a 
unique class of citizens. ENDA will simply end one of the last areas of 
legal discrimination against Americans in the workplace today.
  As introduced in the 110th Congress, this bill originally included 
protections for transgendered Americans in their jobs. While the bill 
that comes to the Floor today does not include this provision, it is 
something I strongly support and will continue to advocate for.
  I take pride in being a citizen of a country that promotes tolerance 
and equality . . . but we must ensure these founding principles extend 
to all American citizens. I believe ENDA is the next step for us to 
take on the journey toward full equality for all Americans.
  Mr. VAN HOLLEN. Madam Chairman, I rise today in support of H.R. 3685, 
the Employment Non-Discrimination Act of 2007. Currently American 
workers are not entitled to protection from discrimination in the work 
place based upon their sexual orientation. As a result, it is legal to 
fire or refuse to hire someone simply because they are gay or lesbian. 
That is simply wrong! This country has a rich history of battling 
discrimination. Over the years Congress has banned employment 
discrimination on the basis of race, color, religion, sex, national 
origin, disability and age. However, our work is not done; we must 
continue to fight against injustice and extend basic workplace 
protection to gays and lesbians.
  The American people do not support workplace intolerance. A Gallup 
poll in May of this year found that 89 percent of the American people 
support equal treatment for gays and lesbians regarding employment 
opportunities. The sexual orientation of an employee should not factor 
into the determination of one's competence to perform a particular job. 
American values are rooted in fairness and opportunities for all, in 
basic recognition that employment, free of discrimination, is a basic 
civil right, a human right that must be extended without regard to 
one's sexual orientation.
  My own State of Maryland, in 2001, enacted a law prohibiting 
employment discrimination on the basis of sexual orientation. I was 
proud then to have worked on its passage through the State legislature. 
I am proud today to stand before the House and help pass this bill 
through Congress. Legislation to promote fairness in employment for 
gays and lesbians at the national level is long overdue. It is time to 
take action and extend equality to all Americans.
  Mr. LANGEVIN. Madam Chairman, I rise in strong support of H.R. 3685, 
the Employment Non-Discrimination Act. This important measure 
demonstrates Congress's commitment to combating prejudice and ensures 
that Americans will not be denied access to employment because of their 
sexual orientation.
  Current Federal law prevents employment discrimination on the basis 
of race, gender, religion, national origin, or disability. As a person 
with a disability, I know how important those Federal protections are 
for people who want to contribute to the workforce. Unfortunately, too 
many Americans are still able to be fired based on their sexual 
orientation. I am proud I come from a State where discrimination based 
on sexual orientation is against the law, but in 30 States, a person 
may be fired from a job simply for being gay, lesbian, or bisexual. We 
need a strong Federal law to protect those Americans and end a practice 
that is contrary to the American promise of equality and opportunity 
for all.
  The Employment Non-Discrimination Act would prohibit employers from 
using an individual's sexual orientation as the sole basis for 
employment decisions. As previously mentioned, Rhode Island is one of 
20 States that have comparable State laws. Similarly, a growing number 
of companies are incorporating non-discrimination policies because they 
recognize that they should be recruiting and retaining the best 
individuals for the job, irrespective of a person's sexual orientation. 
However, despite these advances, too many Americans still face 
discrimination in the workplace. Today we have the opportunity to make 
a stand for civil rights and equality by passing ENDA.
  I also want to voice my strong support for an amendment to be offered 
by the gentlewoman from Wisconsin, Ms. Baldwin, which would prevent 
discrimination based on gender identity. Rhode Island is one of 12 
States that protect gender identity in employment, and our experience 
has been a positive one. Transgender individuals often have their own 
set of challenges in the workplace, and we must ensure that their 
rights are protected as well. I am deeply disappointed that the 
underlying bill does not include gender identity, especially as I am a 
cosponsor of a fully inclusive ENDA. Today, the House of 
Representatives is sending a clear message to the Nation that no 
American should face discrimination at work or in society, and I think 
we are missing an unprecedented opportunity to make the measure as 
inclusive as possible. However, if the Baldwin amendment is 
unsuccessful, I pledge to work with her and other supporters to see 
this important provision enacted into law.
  I would like to thank everyone who contributed to developing this 
legislation and bringing it to the floor for a historic vote. I urge 
all of my colleagues to make a strong stand for equal rights and 
support H.R. 3685.
  Mr. STARK. Madam Chairman, I rise today in strong support of equal 
rights for all people. No job applicant should be discriminated against 
because of his or her race, religion, gender, ethnicity, age, 
disability, political affiliation--or sexual orientation or gender 
identity.
  The Employment Non-Discrimination Act (ENDA, H.R. 3685) simply 
modernizes existing non-discrimination law to prohibit discriminatory 
employment practices on the basis of sexual orientation.
  Everyone knows that employment discrimination against people based on 
their sexual orientation occurs daily in our country. Many of us know 
people who have been the victims of such discrimination. It is wrong 
and it should be against the law. I'm only sorry it has taken us so 
long to bring this bill forward.
  This legislation succeeds in advancing civil rights. However, it 
still falls short of what needs to be accomplished. By no means is this 
bill as inclusive as it should be. It fails to include gender identity 
as a protected class. I commend Congresswoman Baldwin for her efforts 
to include the transgender community in today's legislation. Had her 
amendment reached a vote on the House floor, I would have proudly 
supported it.
  Our Declaration of Independence states that Americans have an 
inalienable right to liberty and happiness, neither of which can be 
achieved if equal rights are granted to some and not others. Today's 
bill continues to leave transgender individuals without equal 
protection from discrimination.
  I support this bill because it brings the country one step closer to 
a prejudice-free workplace, but I implore my colleagues to work toward 
legislation that guarantees fair employment practices to all people.
  Most of us look back on America's history and bemoan that women and 
non-whites had to struggle for rights that should have automatically 
been granted to them. If we as a Congress cannot stand against 
discrimination for a group of citizens who simply demand the right to 
be treated fairly in the workplace, we are no better than past 
legislators who opposed a woman's right to vote or the right of African 
Americans to sit in the same section of a bus or restaurant as whites. 
I urge my colleagues to do what is right and support this legislation.
  Mr. HONDA. Madam Chairman, I rise today to support the Employment 
Non-Discrimination Act (ENDA), an important step forward in the fight 
for civil rights in the United States. It is high time for Congress to 
recognize and address the fear of persecution in the workplace

[[Page 30376]]

experienced by gay, lesbian, bisexual, and transgender Americans. The 
Federal Government is right to follow the lead of 20 progressive states 
to extend federal employment protection to the lesbian and gay 
community, and I look forward to casting my vote in favor of this bill. 
ENDA ensures that American workers will be judged on their ability as 
workers instead of allowing ignorance and fear to bar them from 
contributing to the success of the Nation and enjoying the unalienable 
rights of ``life, liberty, and the pursuit of happiness.''
  Sadly, more inclusive language was narrowed to exclude the most 
vulnerable, least understood group within the LGBT community, 
transgender men and women. I congratulate Representative Baldwin on 
offering an amendment to re-insert this wording into the underlying 
bill and I proudly support her effort. Although this amendment was 
withdrawn, I was prepared to vote in its favor. Despite this 
compromise, I support final passage of the bill because I recognize 
that the perfect should not be the enemy of the good. I trust in my 
colleagues and my leadership that we will not stop the push for civil 
rights after consideration of this bill, and I reiterate my dedication 
to further expanding protection to transgender men and women.
  Finally, I strongly object to the mischaracterization of this bill as 
anti-religious. Gay, lesbian, and straight people alike, strongly 
religious and strongly secular, support this important step in the 
struggle for civil rights. Yet, the authors of the bill have wisely 
sought a compromise for those who still hold a religious objection to 
these civil rights protections by crafting exemptions for religious 
organizations and schools.
  I am proud to vote for this bill and urge my colleagues to do the 
same.
  Ms. DeGETTE. Madam Chairman, I am a proud cosponsor of the original 
Employment Non-Discrimination Act (ENDA) that included gender identity.
  I will support final passage of this legislation today because 
passing this bill is important and extending these protections is the 
right thing to do.
  But I will cast my vote with deep regret the trangendered community 
has been denied the protections offered to gays and lesbians in this 
bill.
  I did not support its removal from the overall legislation and am 
extremely disappointed that it will not be included when the House 
passes H.R. 3685.
  I have cosponsored ENDA every session since I was first elected to 
Congress. I have strongly supported this legislation because it is an 
important step forward in eliminating discrimination against gay 
people.
  I believe that all citizens should be treated equally in this 
country, regardless of their sexual orientation. Firing someone from 
their job, or evicting them from their home simply because of their 
sexual orientation, is immoral and undemocratic.
  All members of the gay, lesbian, bisexual and transgender community 
should be protected from employment discrimination, and by not 
including gender identity we are essentially abandoning Americans who, 
frankly, are among the most discriminated against individuals in this 
country.
  Mr. RYAN of Wisconsin. Madam Chairman, today, the House will consider 
H.R. 3685, the Employment Non-Discrimination Act of 2007. In essence, 
the bill would expand the protections of Title VII of the Civil Rights 
Act that prohibit discrimination on the basis of color, religion, 
national origin and gender to include sexual orientation. As H.R. 3685 
has undergone various iterations over the previous months, I have spent 
a considerable amount of time weighing the implications this 
legislation would have on our society as a whole. My gravest concerns 
lie with how religious institutions would be affected. The protections 
afforded to these groups by our country's founders have been upheld for 
centuries, and I would not support any legislation that would erode 
those freedoms.
  H.R. 3685, however, provides explicit and concrete exemptions for 
religious institutions that are similar to the ones included in Title 
VII of the Civil Rights Act. Specifically, religious organizations, 
define as ``a religious corporation, association, or society; or a 
school, college, university, or other educational institution or 
institution,'' are exempted from complying with the requirements of 
this law. Effectively, where religious institutions are currently 
allowed to make hiring decisions on the basis of religion, this 
protection will be extended so these organizations can continue this 
practice. In addition, I feel strongly that non-denominational 
institutions, that is, religious institutions not affiliated or 
supported by a specific denomination, should be included in this 
exemption. With passage of the Miller amendment, H.R. 3685 will be 
adequately modified so that the hiring practices of non-denominational 
institutions are equally protected and will not be affected by the 
bill.
  Given this, I intend to support the legislation pending before the 
House. I believe individuals should be judged based on merit and their 
ability to perform the tasks required rather than on perceived 
characteristics and unrelated biases.
  One of the essential roles of the Federal Government is to protect 
the equal rights of individuals. H.R. 3685 is not a bill that grants 
special rights to a certain class of people. If this were the case, I 
would oppose the bill. This legislation simply protects the equal 
rights of individuals from workplace discrimination. Indeed, Congress 
is not alone in its attempt to end sexual orientation discrimination in 
the workplace. In fact, my home state of Wisconsin has had a very 
similar law in place since 1982. The legislation the House will 
consider is an extension of this type of protection. Congress has 
historically acted to protect workers from discrimination and I believe 
H.R. 3685 meets this objective.
  Mr. WAXMAN. Madam Chairman, I rise in strong support of the 
Employment Non-Discrimination Act, or ENDA. This legislation is long 
overdue. Prejudice has no place in the workplace.
  Nearly 10 years ago, the Federal Government set a bold example when 
President Clinton issued an executive order specifically outlawing 
discrimination based on sexual orientation in the federal government. 
Today, 22 States, the District of Columbia and more than 180 cities and 
counties nationwide have enacted laws prohibiting sexual orientation 
discrimination in the workplace. I am proud that my home State of 
California and my congressional district in Los Angeles have played a 
leading role in the effort to promote understanding, acceptance, 
tolerance, and equality for gay Americans.
  But congressional leadership is sorely needed to set a national 
standard for this fundamental civil rights protection. The health of 
our democracy requires that all Americans be entitled to justice. Civil 
rights and human rights should not stop at State boundaries.
  Like many civil rights battles before it, the fight for gay rights 
has been long, arduous, and frustrating. In recent years, we have faced 
many setbacks with anti-gay initiatives by President Bush and 
Republicans in Congress that serve only to fan the flames of 
intolerance and bigotry.
  The tide is turning. Earlier this year the Democratic leadership in 
the House and Senate achieved victories with hate crimes legislation 
that would criminalize attacks against individuals based on their 
sexual orientation or gender identity. With the passage of ENDA, we 
will push further by making it illegal to fire, refuse to hire, or deny 
a promotion to an individual on the basis of sexual orientation.
  As an original cosponsor of H.R. 2015, a more comprehensive version 
of this legislation, I am disappointed that H.R. 3685 does not protect 
against discrimination based on gender identity. I strongly support the 
amendment Representative Baldwin will offer to include gender identity 
in H.R. 3685 and if that amendment is not adopted, I pledge to work for 
an ENDA that includes gender identity.
  I look forward to passing this landmark legislation, which is a great 
leap forward for equal rights.
  Mr. LEVIN. Madam Chairman, I rise in support of the Employment Non-
Discrimination Act.
  This day is long overdue. Freedom from discrimination in the 
workplace. A simple concept really. One should be judged by the quality 
of their work, not by the color of their skin, not by their age, not by 
their disability, and of course, not by their sexual orientation.
  Thirty States continue to permit employers to discriminate against 
employees based solely on their sexual orientation. It is vital that we 
adopt federal protections to end this unjust discrimination that 
affects millions of Americans. The bill before the House today would 
extend the basic protections of the Civil Rights Act by prohibiting 
employment discrimination based on sexual orientation.
  For all of my life, this country has been grappling with the issue of 
how to extend fundamental rights to every individual in our society. We 
all know the profound impact of the Civil Rights Act of 1964, which 
made it illegal to fire, refuse to hire, deny promotions or otherwise 
discriminate against employees based on race. While the Civil Rights 
Act was controversial in the years leading up to its enactment, one of 
our country's proudest moments was the day President Johnson signed it 
into law.
  I very much regret that the Bush Administration is threatening to 
veto this legislation. Back in 1990, the first President Bush signed 
the landmark Americans with Disabilities Act, which barred workplace 
discrimination against

[[Page 30377]]

qualified individuals with disabilities. It is unfortunate that the 
current Bush Administration has chosen not to build on this progress.
  But today is about progress. Today we stand up for gay Americans and 
say it is long overdue that you have the protections needed in our 
Nation's employment laws. Tomorrow we continue to educate and outreach 
around the need to also prohibit employment discrimination on the basis 
of gender identity.
  Mr. WELDON of Florida. Madam Chairman, I rise to express my concerns 
about H.R. 3685, the Employment Non-Discrimination Act (ENDA). 
Unfortunately, this bill goes far beyond simply providing protections 
against discrimination. If that had been the sole purpose of H.R. 3685, 
the authors would have closely tracked the Civil Rights Act. The fact 
that they chose not to follow the Civil Rights Act, but instead create 
a whole new statute belies their true motives. Because H.R. 3685 does 
not consider the rights of other protected classes by giving them less 
protection than have already been provided for them under Title VII of 
the Civil Rights Act, I believe this legislation is unfair and unwise.
  Again, as has become the common practice with the new majority, this 
bill is on the floor with little review, no committee hearings, and 
little input from religious organizations and employees that will feel 
the largest impact from this legislation. Having a one-sided piece of 
legislation rushed to the floor is no way to pass legislation whose 
implications will be deeply felt by all Americans. This haste to the 
House floor, fear of constructive criticism, and failure to model this 
bill after other successful Federal civil rights legislation, is unwise 
and is plagued with pitfalls.
  The Committee summarily rejected amendments to (1) broaden the 
exemption for religious schools not covered by the definition in H.R. 
3685 to make it consistent with Title VII exemptions; (2) strike the 
vague and confusing ``perceived'' sexual orientation language; (3) 
prohibit retaliation against employees who may not agree with employer 
policies relating to this bill on the basis of sincerely held religious 
beliefs and; (4) remove the provision making it unlawful to condition 
employment in a State in which a person cannot marry a person of the 
same sex. One wonders why in the quest to protect one group, the 
authors of this bill are so willing to infringe and discriminate 
against the rights of others. In fact, I do not believe it is going too 
far to say that the authors of this bill are willing to infringe on the 
consciences of others in their attempt to create new protections.
  H.R. 3685 contains a much narrower religious exemption than is 
provided under Title VII of the Civil Rights Act, which broadly exempts 
religious corporations, associations, societies, and educational 
institutions. There is strong evidence to suggest that non-
denominational independent religious schools will not be exempt from 
complying with H.R. 3685 even though they are under Title VII. This 
issue has been glossed over by the Democratic leaders even though 
Congress specifically amended the Civil Rights Act in 1972 to 
forthrightly protect the mission-critical hiring rights of religious 
organizations.
  A significant concern over H.R. 3685 is its inadequate protection for 
religious employers and those with deeply held religious convictions. 
Under Title VII, religious corporations, associations, societies and 
educational institutions are given broad exemptions. H.R. 3685 contains 
insufficient exemptions for religious organizations and companies with 
sincerely held religious beliefs. While houses of worship, missions, 
and some religious schools would be exempt, H.R. 3685's definition of 
``religious organizations'' is a two-part test to determine if an 
educational institution qualifies for an exemption. In light of the 
broad exemptions provided in Title VII and the successful management of 
competing protections, why does H.R. 3685 feel it is necessary to 
subject religious organizations to intrusive snooping of the Federal 
Government to investigate if the organization is ``religious enough?'' 
This requirement indeed constitutes an excessive government 
entanglement with religion in violation of the First Amendment, and it 
is doubtful that it would survive scrutiny by the Supreme Court.
  H.R. 3685 is vaguely drafted to prohibit employers from 
discriminating against an individual's actual or ``perceived'' sexual 
orientation or the actual or ``perceived'' sexual orientation of a 
person with whom the employee associates. Again, someone's 
``perceived'' status is not included in any other civil rights 
legislation, including Title VII, which protects race, color, religion, 
sex, and national origin. Employers will now be subjected to claims and 
potential liability based on the highly subjective standard of 
someone's perception. With this legislation applying to essentially 
every company in the country with more than 15 employees, exposing 
employers to the threat of liability based on ``perception'' seems 
highly unwise and will create a lawyer's bonanza. This will force 
employers to defend themselves in claims and litigation by having to 
prove a negative--that they weren't able to perceive someone's sexual 
orientation. I'm sure this is welcome news for the nation's trial bar 
who will welcome vague loopholes to create Title VII claims to 
litigate. We should not open employers up to lawsuits because they were 
unable to ``perceive'' a person's sexual orientation, but that is what 
this bill does. This is especially an unfair burden on our small 
business owners, who will not be able to afford lengthy and costly 
litigation. This bill allows individuals to file suit, if their claims 
aren't resolved by the EEOC, for punitive damages up to $300,000.
  H.R. 3685 will also needlessly create hostile work environments, as 
religious employees protected under Title VII will have their right to 
free religious expression challenged by the new rights created in ENDA 
for individuals based on their ``actual or perceived sexual 
orientation.'' The balancing of these two will lead to an impossible 
balancing test of which law to follow and which to violate.
  While I strongly oppose intentional discrimination in the workplace 
to anyone, H.R. 3685 would favor some classes of citizens over other 
already protected classes. I cannot support a bill that does not 
provide adequate and equal protections to religious organizations, 
especially religious educational institutions that will be forced to 
act against their consciences if this legislation becomes law.
  Mr. BLUMENAUER. Madam Chairman, today I vote in favor of H.R. 3685, 
the Employment Non-Discrimination Act (ENDA) because all Americans 
deserve to be protected from discrimination in the workplace. As a new 
legislator, one of the first hearings I attended in Congress was on 
this very bill and while I am pleased to finally vote on it, I'm sad it 
took twelve years for this day to come.
  I see today's vote as part of our nation's struggle to achieve civil 
rights--an effort to make our country more equitable, more just, and 
more fair, so that every child has the opportunity to pursue their 
dreams in a safe and accepting environment. As I look back on how we 
have achieved civil rights legislation, I am struck that each 
accomplishment was both monumental and yet disappointingly incomplete. 
I am saddened that the gender identity provision did not pass this time 
around, but remain committed to resolving this inequity in the future.
  I appreciate the advocates in my district, and across the country, 
who have worked tirelessly to bring about today's successful passage of 
ENDA. I am confident we will continue these efforts to keep these 
issues at the forefront of our agenda. Together, we can put an end to 
the ugliness of intolerance and bigotry.
  Ms. HIRONO. Madam Chairman, I rise today in support of H.R. 3865, the 
Employment Non-Discrimination Act of 2007 (ENDA), as well as in support 
of the amendment to the bill offered by Congresswoman Tammy Baldwin.
  I would like to thank the chief sponsor .of the bill, Congressman 
Barney Frank, and George Miller, Chairman of the Education and Labor 
Committee, for their leadership. This is truly a historic moment, which 
was largely made possible by their commitment to the democratic ideals 
of equality and fairness.
  As an original cosponsor of the original ENDA, H.R. 2015, I am glad 
to be able to have this opportunity to debate the Baldwin amendment to 
include anti-discrimination protections for transgender individuals. It 
is unfortunate that political realities made it difficult to bring an 
inclusive ENDA to the floor today in the first place.
  However, I stand with Congresswoman Baldwin in her courageous fight 
to provide for the inclusion of a group that is probably the most in 
need of workplace protections. I look forward to continuing to work 
with her and our likeminded colleagues in any effort to build upon the 
momentum of H.R. 3865 and provide employment protections for gender 
identity through future educational and legislative initiatives.
  The Civil Rights Act of 1964 prohibited employment discrimination 
based on race and gender. The scope of protections has expanded since 
then to also bar employment discrimination based on religion, color, 
and national origin. And while versions of H.R. 3865 have been 
introduced in each Congress since 1975, this is the first time it will 
be voted on by the U.S. House of Representatives.
  H.R. 3865 provides us with a historic opportunity to be able to 
respond to the prejudice and discrimination that face millions of 
Americans in our workforce. It is at moments like these, this ability 
to provide for civil rights progress, that I am truly proud to be a 
member of the Democratic majority making freshmen class.

[[Page 30378]]

  I urge my colleagues to join me in voting for H.R. 3865 and working 
toward the inclusion of gender identity in future legislation. Mahalo 
(thank you).
  Mr. UDALL of Colorado. Madam Chairman, this bill does not do all I 
want, but I will support it because of what it will do.
  Earlier this year, I cosponsored H.R. 2015 because I think that in 
our country nobody should be denied a job on the basis of actual or 
perceived sexual orientation or gender identity and because I think we 
need a Federal law to supplement the laws that Colorado and some other 
States have enacted to reduce or prevent such unfair discrimination.
  As a cosponsor, I hoped the House would take up H.R. 2015. So, I 
regret that instead we are considering a similar but not identical 
measure. Unlike the bill I have cosponsored, H.R. 3685 does not fully 
protect the full lesbian, gay, bisexual, and transgender community. And 
because of that, some supporters of the bill I have cosponsored have 
suggested that it would be better for Congress to pass no legislation 
rather than to enact this bill in its current form.
  I understand their frustration, because I recognize that transgender 
people face particularly pervasive and severe bias in the workplace and 
society as a whole and have little protection against employment 
discrimination under existing State laws, municipal ordinances, or 
private employment policies.
  But although I share their disappointment about the bill's 
shortcomings, I will support it because I am convinced that H.R. 3685 
will improve protections for many thousands of people who might 
otherwise continue to face unjust discrimination.
  Madam Chairman, history shows that legal progress against injustice 
does not come easily or swiftly.
  For example, when Congress and the ratifying States approved the 
Constitution's 15th Amendment to try to assure the right to vote would 
not be denied on the basis of race, women were not included--and, 
although in 1893 Colorado's male voters amended our constitution to 
include women, other States excluded them until a further amendment 
took effect. Similarly, since then until the Civil Rights Acts of 1957 
and 1964 and the Voting Rights Act of 1965, and subsequent amendments, 
it has required repeated legislative enactments to construct the 
structure of legal protections in place today.
  Erecting that structure of protection took longer than it should 
have, but it would have taken longer still if Members of Congress had 
refused to vote for good measures because they were not good enough.
  And while I would have wished it otherwise, I think that is the 
choice before the House today.
  We can vote to further the spirit and intent of the 1964 Civil Rights 
Act--which protects against discrimination against employees or job 
applicants on the basis of race, color, religion, sex, or national 
origin--by expanding it to similarly bar discrimination based on sexual 
orientation. Or we can refuse to take that step because it is not the 
entire journey we want to complete.
  I want to take that step, although I know it is not the only one 
needed. So I will vote for this bill.
  Ms. JACKSON-LEE of Texas. Madam Chairman, I rise today in strong 
support of H.R. 3685, the Employment Non-Discrimination Act of 2007, 
introduced by my distinguished friend and colleague Representative 
Frank. This important legislation extends the basic civil rights that 
we, as Americans, enjoy and cherish, to millions of gay, lesbian, and 
bisexual citizens.
  This legislation also fulfills the vision and promise of our Founding 
Fathers who in the ``Declaration of Independence'' proclaimed: ``We 
hold these truths to be self-evident, 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.'' This 
legislation ensures that all of America's citizens inalienable rights 
to life, liberty and the pursuit of happiness are protected.
  The Employment Non-Discrimination Act of 2007 will make it illegal to 
fire, refuse to hire, or otherwise discriminate against employees 
simply based on their perceived or actual sexual orientation.
  I would like to thank my colleague, Mr. Frank, for introducing this 
important legislation, as well as for his ongoing leadership on this 
issue. I would also like to thank Chairman Miller, of the Education and 
Labor Committee, for bringing this legislation to the floor. Madam 
Speaker, today marks a historic occasion. This bill has been introduced 
in every Congress since 1975, and the October 18th vote in the 
Education and Labor Committee to report this legislation to the floor 
was the first vote ever taken on this legislation in the House of 
Representatives.
  Madam Chairman, we live in a Nation that has long prided itself on 
predicating success on merit and hard work. In recent decades, we have 
fought to create a level playing field, to allow women, African 
Americans, and other minorities to compete in the workplace. In 
addition to employment legislation, we have worked to eliminate 
discrimination against members of minority groups. Earlier this 
Congress, we passed a landmark piece of hate crimes legislation, which 
crucially included crimes motivated by prejudice of sexual orientation.
  H.R. 3685 speaks to our Nation's core values of equality and justice. 
There are currently no Federal laws prohibiting discrimination on the 
basis of sexual orientation. This means that in the 30 States that have 
not enacted State legislation to this effect, employers may make 
critical personnel decisions, including firing, refusing to hire, 
demoting, or refusing to promote employees solely based on the sexual 
orientation of the individual.
  Madam Chairman, I strongly believe that employees should be hired or 
fired on the basis of their merits. Their jobs should not be threatened 
because of sexual orientation. Many U.S. companies have recognized that 
it is in the interest of U.S. companies, as well as U.S. citizens, to 
make employment decisions based on qualifications and job performance. 
Ninety percent of Fortune 500 companies now include sexual orientation 
in their nondiscrimination policies. Many major American companies, 
including General Mills, Microsoft, Citibank, and Morgan Stanley, have 
expressed their strong support for legislation outlawing discrimination 
on the basis of sexual orientation. In addition, a May 2007 Gallup poll 
clearly indicated that non-discrimination on the basis of sexual 
orientation is broadly supported by the American people, with 89 
percent of participants stating that they support equal treatment for 
gays and lesbians in determining employment opportunities.
  However, anti-gay discrimination persists in the workplace. According 
to a 2005 survey, a quarter of gay, lesbian, or bisexual individuals 
disagreed with a statement that most employers in their area would hire 
openly gay, lesbian, or bisexual people. A 2007 study found that 16 
percent of gay and lesbian individuals reported being fired from or 
denied a job because of their sexual orientation. A study recently 
released by the Journal of Applied Psychology found that 37 percent of 
gay and lesbian workers, across the United States, have faced 
discrimination based on sexual orientation. 10 percent indicated they 
had been physically harassed, while 22 percent had been verbally 
harassed. Nearly 20 percent stated that they had resigned from a job or 
been fired as a result of discrimination based on sexual orientation. 
This is precisely why I believe that this Congress must act today, to 
protect the fundamental rights of all American workers.
  H.R. 3685, the Employment Non-Discrimination Act of 2007 (ENDA), 
contains many important provisions that will make important strides 
toward ensuring workplace equality for all Americans. This legislation 
prohibits employers, employment agencies, and labor unions from using 
the sexual orientation of an individual as the basis for employment 
decisions, including hiring, firing, promotion, and compensation. It 
extends Federal protections already guaranteed to individuals based on 
race, religion, sex, national origin, age, and disability to gay, 
lesbian, and bisexual works.
  This legislation applies to private sector employers with 15 or more 
employees, as well as employment agencies, labor organizations, joint 
labor-management committees, Congress, and federal, state, and local 
governments. It authorizes the same enforcement powers, procedures, and 
remedies provided under existing Federal employment discrimination laws 
such as Title VII and the Americans with Disabilities Act.
  Today's bill could go further. It could, and in my opinion should, 
also extend protections to individuals on the basis of gender identity. 
However, I believe that it is an important and significant step 
forward, and I look forward to working with my colleagues to enact 
fully inclusive legislation, to ensure that all Americans will 
ultimately be protected from workplace and employment discrimination.
  I am pleased to support the amendment offered by my colleague, Mr. 
George Miller. This amendment clarifies the religious exemption under 
ENDA, addressing concerns raised by some religious schools. It makes 
explicitly clear that religious organizations are given an identical 
exemption, under ENDA, to the one found in Title VII of the Civil 
Rights Act of 1964. This provision exempts religious corporations, 
schools, associations, and societies from religious discrimination 
claims. Mr. Miller's amendment clarifies that both denominational and 
non-denominational religious schools qualify for exemption from ENDA. I

[[Page 30379]]

thank my colleagues who joined me in supporting this amendment.
  In addition, I would also like to express my support for the 
amendment offered by my colleague, Ms. Baldwin, and my disappointment 
that it was not adopted. This amendment would have expanded ENDA's 
protections to persons discriminated against based on gender identity, 
defined as 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. This amendment 
highlighted the activism and dedication of individuals such as Phyllis 
Randolph Frye, a lawyer in Houston who has struggled for the rights of 
transgender people for decades. Further, the language included in 
Representative Baldwin's amendment addresses concerns of shared 
facilities, dress, and grooming standards, stating explicitly that the 
construction of additional facilities is not required. If this 
legislation is to truly achieve its goals of equal treatment for all 
Americans, this amendment is tantamount to that success. I therefore 
strongly hope that my colleagues will join me in enacting this 
amendment in the future.
  Furthermore, I oppose the motion to recommit on the grounds that it 
was designed to either permanently derail or at least delay this 
historic legislation. In addition, the motion to recommit was regarding 
the definition of marriage, which is utterly separate from workplace 
discrimination.
  Madam Chairman, this non-discrimination legislation is good for 
America: it benefits American citizens and American companies. Non-
discrimination protects the civil rights of individuals, and it has 
proven good for business in some of our nation's most successful 
businesses. Our nation is built on the ideals of hard-work and 
equality, key values that are enshrined in today's legislation.
  I urge my colleagues to join me in supporting this legislation, and 
in ensuring that all American workers enjoy basic employment 
protections.
  Ms. SCHAKOWSKY. Madam Chairman, throughout my career, I have fought 
for equal opportunity and rights for all of our fellow citizens. Today, 
I rise in support of H.R. 3685, the Employment Non-Discrimination Act 
because I believe that discrimination in the workplace on the basis of 
sexual orientation, race and religion has no place in the United 
States. Yet, the fact remains discrimination exists. Throughout our 
Nation, gay, lesbian, bisexual and transgender Americans face 
discrimination without the protection of Federal law and as a result, 
hard working, skilled employees can be fired simply because of their 
sexual orientation.
  I believe with every fiber of my being that this is wrong, that it is 
un-American. Performance at work should determine employment--not a 
person's sexual orientation which has no bearing on one's ability to do 
the job.
  I applaud my good friends and colleagues, Representative Barney Frank 
and Tammy Baldwin, for their tremendous leadership on this issue. While 
I support the bill before us today, I would like to take a moment to 
extend my sincerest regret that language from the original bill, which 
extended civil rights protections to transgender Americans, was 
excluded from the version we will vote on today.
  When I came to Congress in 1999, I implemented an office employment 
policy that went beyond current Federal law to add sexual orientation 
and gender identity to existing protections. Many employers--private 
and public--have already taken this long overdue step. In my home town 
of Chicago and in the State of Illinois, we gave already have in place 
laws that protect gender identity as well as sexual orientation.
  We must work for a Federal law that ensures every American is 
guaranteed the ability to get a job or promotion based on his or her 
ability. It has taken 33 years to pass legislation that bans 
discrimination in the workplace against individuals based on their 
sexual orientation. Today's vote is significant victory. But we must 
not let years pass before we make more improvements to Federal law to 
give transgender individuals the employment protections they deserve.
  Mr. BACA. Madam Chairman, I rise today to ask for support of the 
Employment Non-Discrimination Act, ENDA, H.R. 3685.
  People who do their jobs well, pay their taxes and contribute to 
their communities should not be singled out for unfair discrimination.
  This notion lies at the core of American values. Yet, millions of 
Americans are fired from their jobs, refused work, or paid less because 
of their sexual orientation.
  Sadly, this discrimination is legal in 39 States. This is why Federal 
protection is so important.
  H.R. 3685 provides employment protections similar to those of the 
Civil Rights Act of 1964.
  This bill will provide judges with the tools necessary to end 
discrimination.
  It will protect Americans, hard-working Americans who deserve the 
same freedoms and governmental support given to all working Americans.
  Please support this important legislation.
  Mr. TIAHRT. Madam Chairman, I rise today in opposition to H.R. 3685, 
the Employment Non-Discrimination Act (ENDA). H.R. 3685 would extend 
existing employment-discrimination provisions of Federal law, including 
those in Title VII of the Civil Rights Act of 1964, to establish ``a 
comprehensive Federal prohibition of employment discrimination on the 
basis of sexual orientation.''
  Although I join with all my colleagues in abhorrence to bigotry and 
discrimination, this disingenuous and vaguely-constructed overhaul of 
labor law is inconsistent with the free exercise of religion and weaken 
the fundamental Defense of Marriage Act.
  The right to the free exercise of religion found in the Constitution, 
and as codified by Congress in the Religious Freedom Restoration Act 
(RFRA), must be firmly upheld. It is a cornerstone of our Nation's 
founding and our future. Our Government must not take any action that 
unduly burdens the free exercise of religion. Unfortunately, the ENDA 
does not live up to this constitutional standard. America's churches, 
synagogues, and religious non-profit organizations must maintain the 
right to employ those that share their particular religious or moral 
worldview. Although the sponsors of this act claim that the religious 
exemptions found in the legislation are adequate, they are simply not 
strong enough to pass constitutional muster or fulfill legislative 
intent in the RFRA.
  Madam Chairman, ENDA would also weaken the landmark Defense of 
Marriage Act (DOMA) by giving Federal statutory significance to same-
sex marriage rights under State law. Federal law states that marriage 
is between one man and one woman. Maintaining DOMA is essential in 
defending the sanctity of marriage. However, the passage of ENDA will 
provide activist judges around the country the legal ammunition to 
undermine state and federal marriage laws. Courts in New Jersey, 
Vermont, and Massachusetts have all used state legislation similar to 
ENDA as a springboard for mandating same-sex marriage or civil unions. 
In 2005 Kansas overwhelmingly passed the Traditional Marriage Amendment 
by 70 percent. The people of Kansas have spoken. With the path is so 
clearly defined in history, it would be irresponsible for Congress to 
pass ENDA.
  Madam Chairman, bigotry and discrimination is clearly wrong. However, 
tampering with such bedrock legal and constitutional standards such as 
the freedom of religion and DOMA is not the right solution. I urge my 
colleagues to join with me in opposing this legislation.
  Mrs. McMORRIS RODGERS. Madam Chairman, I rise today in opposition to 
the Employment Non-Discrimination Act because I believe it erodes our 
family values and the foundation of our Nation.
  All people should live without fear of harassment. However, this 
legislation would create a newly protected class based on ``perceived'' 
sexual orientation. The term ``perceived'' and how it applies to the 
workplace will be subject to endless litigation and will ultimately be 
defined by the court system. It will open the door for anyone of any 
sexual orientation to claim to have been discriminated against on the 
basis of perceived sexual orientation. I am disappointed that this will 
become the latest example of unelected officials deciding an issue for 
the Legislative branch.
  Meanwhile, faith-based institutions such as summer camps, Bible book 
stores or Christian schools will be the ones held hostage. The bill 
inappropriately excludes the hundreds or even thousands of religious 
schools that identify themselves as non-denominational. Unfortunately, 
the definition of a religious organization does not adequately cover 
religious schools that are not ``controlled, managed, owned, or 
supported by a particular religion, religious corporation, association 
or society.''
  To attempt to meet exemptions, these faith-based institutions would 
be subject to highly inappropriate federal intrusion into their 
religious activities to determine, in essence, if they are religious 
``enough.'' Meanwhile it puts schools that are not directly associated 
with a church at risk. In Baltimore Lutheran High School Assn v. 
Employment Security Admin., 490 A.2d 701 (Md. 1985), an unemployment 
case, the Maryland Court of Special Appeals ruled against the school 
declaring it was not ``operated primarily for religious purposes.'' 
However, the school conducted mandatory chapel services and attempted 
to integrate a distinctly Christian worldview into all of its courses.

[[Page 30380]]

  As this current bill would result in a fundamental departure from the 
longstanding framework of the Civil Rights Act, widespread litigation, 
a trampling of hiring protections for many faith-based institutions, 
and an undermining of state laws that define and protect marriage, I 
will vote to oppose it.
  Ms. McCOLLUM of Minnesota. Madam Chairman, I rise today in support of 
the Employment Non-Discrimination Act (ENDA) because no American should 
ever fear being discriminated against in the workplace.
  The Employment Non-Discrimination Act makes it illegal to fire, 
refuse to hire, or discriminate in any way against employees based on 
their sexual orientation. An employee should be judged on their 
qualifications and performance in the job, and only on their 
qualifications and performance in the job.
  I am proud that as a member of the Minnesota House of 
Representatives, one of the first votes I cast was to ensure that every 
person in our State is protected from unjust discrimination regardless 
of race, religion, sexual orientation or gender. It is disappointing 
that there are still 30 States in our country where it is legal to fire 
someone because of their sexual orientation.
  While not as comprehensive as Minnesota's civil rights law, ENDA is a 
good step in protecting every citizen in our country from job 
discrimination. H.R. 3685 simply provides basic employment protections 
for gay, lesbian, and bisexual workers.
  This legislation addresses concerns that have been expressed by 
explicitly forbidding quotas or preferential treatment. It also ensures 
that both denominational and non-denominational religious schools and 
religious associations continue to have all exemptions currently 
allowed under the law. Further, H.R. 3685 does not change in any way 
the definition of marriage under Federal law.
  I joined Chairman Barney Frank to strike a provision regarding 
marriage criteria in employment, because it has no practical affect on 
civil rights laws and does not weaken the ability of this legislation 
to protect workers from being discriminated against based on sexual 
orientation.
  Along with my colleagues, I am committed to working to protect, 
strengthen, and guarantee the rights of all workers in our country. I 
am a cosponsor of H.R. 2015, the original version of ENDA, which 
included protections for gender identity. Had I had the opportunity to 
vote to include gender identity rights in this legislation, I would 
have supported it.
  Current law bars employment discrimination based on race, religion, 
sex, national origin, age, or disability. Further, the Federal 
Government already prohibits discrimination based on sexual 
orientation. It is time to extend these protections to all Americans. I 
urge my colleagues to join me in voting for H.R. 3685.
  The CHAIRMAN. All time for general debate has expired.
  Pursuant to the rule, the bill shall be considered read for amendment 
under the 5-minute rule.
  The text of the bill is as follows:

                               H.R. 3685

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

     SECTION 1. SHORT TITLE.

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

     SEC. 2. PURPOSES.

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

     SEC. 3. DEFINITIONS.

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

     SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED.

       (a) Employer Practices.--It shall be an unlawful employment 
     practice for an employer--
       (1) to fail or refuse to hire or to discharge any 
     individual, or otherwise discriminate against any individual 
     with respect to the compensation, terms, conditions, or 
     privileges of employment of the individual, because of such 
     individual's actual or perceived sexual orientation; or
       (2) to limit, segregate, or classify the employees or 
     applicants for employment of the employer in any way that 
     would deprive or tend to deprive any individual of employment 
     or otherwise adversely affect the status of the individual as 
     an employee, because of such individual's actual or perceived 
     sexual orientation.
       (b) Employment Agency Practices.--It shall be an unlawful 
     employment practice for an employment agency to fail or 
     refuse to refer for employment, or otherwise to discriminate 
     against, any individual because of the actual or perceived 
     sexual orientation of the individual or to classify or refer 
     for employment any individual on the basis of the actual or 
     perceived sexual orientation of the individual.
       (c) Labor Organization Practices.--It shall be an unlawful 
     employment practice for a labor organization--
       (1) to exclude or to expel from its membership, or 
     otherwise to discriminate against, any individual because of 
     the actual or perceived sexual orientation of the individual;
       (2) to limit, segregate, or classify its membership or 
     applicants for membership, or to classify or fail or refuse 
     to refer for employment any individual, in any way that would 
     deprive or tend to deprive any individual of employment, or 
     would limit such employment or otherwise adversely affect the 
     status of the individual as an employee or as an applicant 
     for employment because of such individual's actual or 
     perceived sexual orientation; or
       (3) to cause or attempt to cause an employer to 
     discriminate against an individual in violation of this 
     section.

[[Page 30381]]

       (d) Training Programs.--It shall be an unlawful employment 
     practice for any employer, labor organization, or joint 
     labor-management committee controlling apprenticeship or 
     other training or retraining, including on-the-job training 
     programs, to discriminate against any individual because of 
     the actual or perceived sexual orientation of the individual 
     in admission to, or employment in, any program established to 
     provide apprenticeship or other training.
       (e) Association.--An unlawful employment practice described 
     in any of subsections (a) through (d) shall be considered to 
     include an action described in that subsection, taken against 
     an individual based on the actual or perceived sexual 
     orientation of a person with whom the individual associates 
     or has associated.
       (f) No Preferential Treatment or Quotas.--Nothing in this 
     Act shall be construed or interpreted to require or permit--
       (1) any covered entity to grant preferential treatment to 
     any individual or to any group because of the actual or 
     perceived sexual orientation of such individual or group on 
     account of an imbalance which may exist with respect to the 
     total number or percentage of persons of any actual or 
     perceived sexual orientation employed by any employer, 
     referred or classified for employment by any employment 
     agency or labor organization, admitted to membership or 
     classified by any labor organization, or admitted to, or 
     employed in, any apprenticeship or other training program, in 
     comparison with the total number or percentage of persons of 
     such actual or perceived sexual orientation in any community, 
     State, section, or other area, or in the available work force 
     in any community, State, section, or other area; or
       (2) the adoption or implementation by a covered entity of a 
     quota on the basis of actual or perceived sexual orientation.
       (g) Disparate Impact.--Only disparate treatment claims may 
     be brought under this Act.

     SEC. 5. RETALIATION PROHIBITED.

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

     SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

       This Act shall not apply to a religious organization.

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

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

     SEC. 8. CONSTRUCTION.

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

     SEC. 9. COLLECTION OF STATISTICS PROHIBITED.

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

     SEC. 10. ENFORCEMENT.

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

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

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

     SEC. 11. STATE AND FEDERAL IMMUNITY.

       (a) State Immunity.--A State shall not be immune under the 
     11th amendment to the Constitution from a suit described in 
     subsection (b) and brought in a Federal court of competent 
     jurisdiction for a violation of this Act.
       (b) Remedies for State Employees.--
       (1) In general.--
       (A) Waiver.--A State's receipt or use of Federal financial 
     assistance for any program or activity of a State shall 
     constitute a waiver of sovereign immunity, under the 11th 
     amendment to the Constitution or otherwise, to a suit brought 
     by an employee or applicant for employment of that program or 
     activity under this Act for a remedy authorized under 
     subsection (c).
       (B) Definition.--In this paragraph, the term ``program or 
     activity'' has the meaning given the term in section 606 of 
     the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a).

[[Page 30382]]

       (2) Officials.--An official of a State may be sued in the 
     official capacity of the official by any employee or 
     applicant for employment who has complied with the applicable 
     procedures of section 10, for equitable relief that is 
     authorized under this Act. In such a suit the court may award 
     to the prevailing party those costs authorized by section 722 
     of the Revised Statutes of the United States (42 U.S.C. 
     1988).
       (3) Effective date.--With respect to a particular program 
     or activity, paragraphs (1) and (2) apply to conduct 
     occurring on or after the day, after the date of enactment of 
     this Act, on which a State first receives or uses Federal 
     financial assistance for that program or activity.
       (c) Remedies Against the United States and the States.--
     Notwithstanding any other provision of this Act, in an action 
     or administrative proceeding against the United States or a 
     State for a violation of this Act, remedies (including 
     remedies at law and in equity, and interest) are available 
     for the violation to the same extent as the remedies are 
     available for a violation of title VII of the Civil Rights 
     Act of 1964 (42 U.S.C. 2000e et seq.) by a private entity, 
     except that--
       (1) punitive damages are not available; and
       (2) compensatory damages are available to the extent 
     specified in section 1977A(b) of the Revised Statutes (42 
     U.S.C. 1981a(b)).

     SEC. 12. ATTORNEYS' FEES.

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

     SEC. 13. POSTING NOTICES.

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

     SEC. 14. REGULATIONS.

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

     SEC. 15. RELATIONSHIP TO OTHER LAWS.

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

     SEC. 16. SEVERABILITY.

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

     SEC. 17. EFFECTIVE DATE.

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

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


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

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

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

     SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

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

  The CHAIRMAN. Pursuant to House Resolution 793, the gentleman from 
California (Mr. George Miller) and a Member opposed each will control 
10 minutes.
  The Chair recognizes the gentleman from California.
  Mr. GEORGE MILLER of California. Madam Chairman, I yield myself 4\1/
2\ minutes.
  Madam Chairman, I rise in support of an amendment to this ENDA 
legislation that I and Mr. Stupak have written to ensure that this law 
will protect religious liberties of religious corporations, societies, 
associations, and in particular, religious schools, including those 
religious schools that are not affiliated with any particular church or 
denomination. Our amendment would make it clear that the ENDA exemption 
matches the religious exemption found in title VII of the Civil Rights 
Act of 1964. Under my amendment, a religious corporation, association, 
or school would be categorically exempt from ENDA.
  In addition, our amendment also clarifies that the references to the 
term ``married'' refer to the Federal definition of marriage as between 
one man and one woman, as enacted in the 1996 Federal law referred to 
as the Defense of Marriage Act.
  With respect to the religious exemption, this issue has been the 
cause of a lot of confusion in the past weeks. The religious exemption 
that was part of the ENDA bill that passed out of the Education and 
Labor Committee on October 18 was exceptionally broad; however, several 
nondenominational religious schools raised concerns that they might not 
be covered under the ENDA exemption.
  For example, the president of Wheaton College in Naperville, 
Illinois, sent a letter to Representative Tim Walberg in advance of the 
Education and Labor Committee's markup on ENDA. Mr. Walberg then shared 
that letter with the entire committee, and our Republican colleagues 
argued that Wheaton College, which is clearly a religious school 
despite the fact that it is not controlled by or affiliated with any 
specific church, may not be covered by the ENDA exemption. That 
argument was incorrect.
  Wheaton, along with other religious schools and organizations such as 
the Council for Christian Colleges and Universities, asked that we 
``ensure that the act categorically exempts religious organizations as 
in section 702(a) of title VII,'' and we have done precisely what 
Wheaton College and the Council for Christian Colleges has asked us to 
do.
  Under this amendment, if a religious organization, including a 
religious school, is exempt under either section 702(a) or the arguably 
broader section 703(e)(2), then that organization or school is exempt 
from ENDA, period. So, if a school qualifies for either one of those 
exemptions under title VII, it is categorically, as they requested, 
exempt from ENDA. By directly referencing title VII, we also ensure 
that the many decades of case law on title VII's religious exemption is 
imported to ENDA.
  This amendment provides clarity for religious schools that have 
experience

[[Page 30383]]

with the title VII exemption, and it should satisfy all of their 
legitimate concerns about ENDA.
  Let me be clear, the title VII exemption, and therefore, the ENDA 
exemption, applies to both nondenominational religious schools like 
Wheaton and church-affiliated schools. And as one court explained, 
``Even though a Christian corporation or organization is 
nondenominational, it nevertheless may subscribe to particular 
religious views with which other Christians do not agree, and 
conversely, it may disagree with the religious views of other 
Christians.'' And to go on, the court said, ``This is precisely the 
situation for which the title VII exemptions were enacted; the 
exemptions allow religious institutions to employ only persons whose 
beliefs are consistent with the views of the religious organization.'' 
And that is the purpose of this exemption. That is the purpose of this 
amendment.
  In addition to clarifying the scope of the ENDA religious exemption, 
my amendment also specifically states that the references to marriage 
in ENDA refers to the definition of marriage as defined in Federal law. 
Specifically, these terms in ENDA are given the meaning provided by the 
Federal law that is referred to as the Defense of Marriage Act, which 
defines marriage for Federal purposes as the union of one man and one 
woman. That is the definition that applies to ENDA, and my amendment 
makes that definition absolutely clear.
  Madam Chairman, because our amendment offers strong protections for 
religious organizations, including nondenominational or nonaffiliated 
religious schools, and because our amendment clarifies that the Defense 
of Marriage Act operates to define the term ``marriage'' in this bill, 
I trust that the Miller amendment will receive a large bipartisan vote 
in its favor.
  Madam Chairman, I would like now to yield 4 minutes to my cosponsor 
of this legislation, Mr. Stupak.
  Mr. STUPAK. Madam Chairman, I thank the chairman of the committee.
  I rise in support of the Miller-Stupak amendment to the Employment 
Non-Discrimination Act of 2007.
  This amendment makes two important clarifications. First, our 
amendment asserts and clarifies that any religious organization that is 
currently covered by the Civil Rights Act of 1964 would be exempt from 
the Employment Non-Discrimination Act. This will continue to protect 
religious organizations, including corporations, schools, associations, 
and societies from religious discrimination claims.
  For the past 40-plus years, religious high schools, colleges and 
other organizations throughout the Nation have been allowed to hire 
individuals based on that institution's religious principles.
  Today, as we adopt employment protections based on sexual 
orientation, these principles should be upheld.
  Continuing America's long-standing separation of church and State, 
this amendment will ensure that the Federal Government does not 
unconstitutionally infringe on religious organizations' hiring 
practices.
  Religious schools and organizations throughout my district and 
throughout this Nation will continue to freely practice their beliefs 
without being afraid of being charged with discrimination.
  Several major religious organizations support the inclusion of a 
religious exemption in ENDA, including the U.S. Conference of Catholic 
Bishops, Union of Orthodox Jewish Congregations of America, and the 
General Conference of the Seventh-day Adventist Church.
  The Miller-Stupak amendment also upholds the Defense of Marriage Act. 
It also clarifies that any reference to ``marriage'' within ENDA refers 
to the legal union between one man and one woman as husband and wife.
  In 1996, a bipartisan group of 342 Members, including myself, voted 
in favor of the Defense of Marriage Act. Marriage is between a man and 
woman. I support including a clear definition of marriage as a union 
between a man and woman in this legislation.
  No American should have to face discrimination in the workplace, 
regardless of their race, gender or sexual orientation. However, 
religious organizations should be able to hire individuals who agree 
with their religious beliefs.

                              {time}  1630

  It is also important to make it explicitly clear that marriage is a 
union between a man and a woman and that no part of the Employment Non-
Discrimination Act could be misconstrued to undercut the Defense of 
Marriage Act.
  I urge my colleagues to join with me and the chairman in voting for 
this amendment. With the inclusion of this amendment, I encourage 
Members to vote for final passage of the Employment Non-Discrimination 
Act.
  I ask for a ``yes'' vote on the Miller-Stupak amendment.
  Mr. GEORGE MILLER of California. Madam Chairman, I reserve the 
balance of my time.
  Mr. McKEON. Madam Chairman, I rise to claim the time in opposition to 
the amendment. However, I do not oppose the amendment.
  The CHAIRMAN. Without objection, the gentleman from California is 
recognized for 10 minutes.
  There was no objection.
  Mr. McKEON. Madam Chairman, I yield myself such time as I may 
consume.
  With this amendment, the majority tries to correct fundamental flaws 
related to hiring protections for faith-based institutions and the 
preservation of marriage. I will reluctantly support this relatively 
futile attempt, but let me be clear, on the issues of faith-based 
protections and the institution of marriage, this amendment fails to 
solve the problems. As such, even with adoption of this amendment, the 
underlying bill should be defeated.
  For months, my colleagues and I have raised substantive legal and 
policy concerns related to this legislation. After a series of 
legislative false starts, the bill brought to the floor continues to 
pose a number of challenges. The amendment offered by Chairman Miller 
is an obvious attempt to address a few, but certainly not all, of the 
issues we have identified.
  We expressed concern that the bill created a new anti-discrimination 
framework outside the existing scope of title VII of the Civil Rights 
Act of 1964. Among other things, this allowed for a new set of 
provisions to dictate the hiring rights of religious organizations, 
thereby stripping faith-based institutions of their long-standing title 
VII protections.
  I appreciate that the majority has recognized and agreed with our 
concerns about how this bill would intrude on religious freedom. In 
response to those concerns, the amendment moves closer to title VII. 
Inexplicably, however, it still leaves out an important piece of 
current law.
  Chairman Miller says his amendment fully restores protections to 
faith-based institutions. It does not. We expressed concern that the 
bill could undermine the rights of States to define, protect and 
preserve the institution of marriage. The Miller amendment deletes 
troublesome provisions related to employee benefits for same-sex 
couples and references the Federal Defense of Marriage Act, which 
defines marriage as a union between one man and one woman. 
Unfortunately, despite these steps, or perhaps even because of them, 
the bill taken as a whole continues to create potential conflicts 
between State and Federal marriage laws.
  Chairman Miller says his amendment protects the rights of States to 
define and preserve traditional marriage. It does not.
  A Presidential veto threat has been issued on constitutional and 
policy grounds. This amendment fails to fully address those concerns. I 
reluctantly support passage of this amendment to partially address a 
few of the problems we have identified throughout this bill's troubled 
legislative path.
  But I remind my colleagues that this amendment is not enough. The 
bill remains a litigation trap that undermines marriage and provides 
insufficient protections to faith-based organizations. Even after 
supporting this amendment, I urge my colleagues to reject the 
underlying bill.

[[Page 30384]]

  Madam Chairman, I reserve the balance of my time.
  Mr. GEORGE MILLER of California. Does the gentleman have additional 
speakers? We only have one speaker left and we have the right to close.
  Mr. McKEON. Who has the right to close?
  The CHAIRMAN. The gentleman from California (Mr. McKeon) has the 
right to close.
  Mr. McKEON. Madam Chairman, I am happy to yield at this time 2\1/2\ 
minutes to the gentleman from Georgia, Representative Broun.
  Mr. BROUN of Georgia. I thank the gentleman for yielding.
  Madam Chairman, the House of Representatives is debating H.R. 3685, 
the Employment Non-Discrimination Act, today.
  As well meaning as the title of this bill sounds, I want my 
constituents in the 10th Congressional District of Georgia and all 
Americans to know why this legislation is bad for Georgia and bad for 
America. Just like the ill-conceived hate crimes legislation that this 
Democratic majority passed, this bill will increase discrimination, 
yes, increase, and not decrease it.
  I believe in the Constitution of the United States as our Founding 
Fathers intended. The first amendment to our Constitution expressly 
protects religious freedom. So while I am opposed to discrimination, I 
am also opposed to creating special rights and privileges for certain 
classes, and that is exactly what this bill does. This bill would 
elevate one person's desire for a particular job over another person's 
right to practice and honor their religious beliefs.
  If H.R. 3685 is signed into law, and I pray that it will not be, it 
would deny the civil rights of employers, and it would abridge the 
freedom of association enshrined in our first amendment.
  ENDA will force employers, including Christians, Muslims, Jews and 
people of other faiths to hire individuals that are diametrically 
opposed to their fundamental belief system. If they stand up for their 
religious beliefs and refuse to hire those opposed to their faith, they 
will be sued. In fact, one thing the bill will accomplish is to 
dramatically increase lawsuits against employers.
  Further, while the Democratic majority will argue that religious 
organizations are exempt, the highly nuanced definition contained in 
this bill for religious organizations and religious educational 
institutions is so bad as to make this exemption essentially 
meaningless. The bill would grant special employment privileges and 
protected minority status to anyone that defines themselves by their 
sexual orientation. Further, an employer can be sued for not only 
making an employment decision based on a person's sexual orientation, 
but on his perception of their orientation.
  Countless individuals and organizations, including Christian and 
Jewish schools, Christian bookstores and even religious daycare 
providers will be forced to either hire a homosexual or transgender 
individual or face prosecution.
  This legislation is unnecessary and is unconstitutional. I urge my 
colleagues on both sides of the aisle to do the right and courageous 
thing and to vote ``no'' on H.R. 3685.
  Mr. McKEON. Might I inquire how much time we have left?
  The CHAIRMAN. The gentleman from California (Mr. McKeon) has 4\1/2\ 
minutes. The gentleman from California (Mr. George Miller) has 3 
minutes.
  Mr. McKEON. At this time, I would be happy to yield 3\1/2\ minutes to 
the gentleman from Indiana (Mr. Souder).
  Mr. SOUDER. I want to thank Chairman Miller. As a former Republican 
staff director on the Children and Family Committee when he was 
chairman of that, and working with the committee, I found, as he said 
earlier, that he listened to the Hoekstra amendment committee and made 
some adjustments that, in fact, occasionally he is right. It's 
occasional, but occasionally he is right. This addressed some of our 
concerns. It did not address all of our concerns.
  As you know, when you are dealing with religious law or any law, it 
isn't at the heart of the matter, it's at the fringes. In communion, 
can minors take real alcohol and wine? Can Native Americans smoke 
peyote?
  Here we're not dealing, and this amendment helps clarify that, we're 
not dealing with religious colleges. We're not dealing with the church 
proper, but law in the United States is we deal with religious 
discrimination, the ability to deal whether sexual discrimination 
trumps religious discrimination, which is fundamentally what this bill 
is about, that people who hold deeply held religious beliefs, which is 
part of Orthodox Jewish teaching, fundamentalist Muslim teaching and, 
in the Bible, unlike civil rights, where civil rights were led by 
William Wilberforce in England, by the abolitionists in America because 
the Bible was not explicit. But here, in fact, the Bible is explicit. 
The Koran is explicit. The Torah is explicit. And people have deeply 
held religious beliefs. So 85 percent of the Christian bookstores in 
America would not be covered by this protection. Certain types of 
church camps would not be, depending on how it's handled. Group homes 
that are often independent and do not have an overt religious message 
that grew out of the faith message of a church but do not necessarily 
now have an overtly religious mission, they're part of the outgrowth of 
the religion, would be covered. They wouldn't be able to have a husband 
and wife be the house parents under this bill. Religious law is a lot 
more complex than it was presented today.
  One of the other challenges here is when we are trying to talk about 
how do we debate in public life over people of faith and which party 
are they going to be in, how are we going to reach out to this, the 
American people have heard in this debate today people who seriously 
are uncomfortable with this debate. We don't like to talk about this 
type of thing. I have tried to treat everybody in my life, regardless 
of how they have been in this Congress or friends back home or people I 
have worked with, with respect and dignity and do not practice personal 
discrimination.
  But I have heard my religion and my religious belief called 
prejudiced, bigoted, hate-filled, that the predominant religions in 
America have had their basic beliefs, those who believe in a literal 
Bible, have seen their faith smeared today on this House floor, and I 
am very disappointed in much of the tone. I understand the passion. I 
understand why people who have a homosexual life-style feel they have 
been discriminated against, but this is a classic question in our 
country. If, in fact, nobody could get a job, we would be facing a 
different challenge today. I openly admit that.
  But the challenge here is do people who have deeply held religious 
convictions based on the fundamental text of their faith have the right 
to practice their faith, too, or are they going to be trumped? This 
amendment is a step, but it's only a step.
  Mr. GEORGE MILLER of California. Madam Chairman, I yield the 
remaining time to the gentleman from New Jersey (Mr. Andrews).
  The CHAIRMAN. The gentleman from New Jersey is recognized for 3 
minutes.
  Mr. ANDREWS. I thank the chairman for yielding.
  Madam Chairman, I rise in support of this well-thought-out amendment 
from Chairman Miller and Mr. Stupak. I think it quite fairly addresses 
some of the concerns people have raised.
  First, with respect to religion, on October 3, 2007, the president of 
Wheaton College wrote to our colleague, Mr. Walberg from Michigan. 
President Litfin worried about the scope of the religious exemption in 
the underlying bill, and here is what he said: ``I urge you to remove 
the problematic religious definition language currently in ENDA and 
ensure that the act categorically exempts religious organizations as in 
section 702(a) of title VII of the Civil Rights Act.''
  Here is what the amendment in front of us says: ``This act shall not 
apply to a corporation, association, educational institution, or 
society that is exempt from the religious discrimination provisions of 
title VII of the Civil Rights

[[Page 30385]]

Act of 1964 pursuant to section 702(a),'' precisely what was asked for.
  Second, I have heard concerns that there is preferential treatment or 
special rights for persons protected under this bill. The gentleman and 
others should read page 8 of the underlying bill, subparagraph (f), 
which is captioned ``No Preferential Treatment or Quotas.'' Let me read 
from it: ``Nothing in this Act shall be construed or interpreted to 
require or to permit any covered entity to grant preferential treatment 
to any individual or any group because of the actual or perceived 
sexual orientation of such individual.''
  It's helpful to read the bill.
  Finally, we have heard suggestions that somehow the institution of 
marriage is undermined. It's very important to read the second part of 
Mr. Miller and Mr. Stupak's amendment, subsection (c) and I will read 
it: ``As used in this Act, the term `married' or `marry' refer to 
marriage as such term as defined in section 7 of title I,'' which is 
the Defense of Marriage Act which explicitly defines marriage as a 
union between one man and one woman.
  These were concerns that were raised. They are met. I respect and 
appreciate the fact that the ranking member of the full committee will 
vote ``yes'' on this amendment. So will I, and so will an overwhelming 
majority so we can proceed to passage of this bill with a strong 
bipartisan majority.
  I urge a ``yes'' vote on this amendment.
  Mr. McKEON. Madam Chairman, I yield myself the balance of my time.
  The CHAIRMAN. The gentleman from California is recognized for 1 
minute.
  Mr. McKEON. This is an emotional issue, it's a serious issue, and I 
think it's hard for some of us, I know on this, to control our 
passions. It's disturbing that some are offended, have been offended 
during the debate today, and I feel badly about that.
  My concerns are more with the flaws that I see in the bill. I am 
concerned that we are all trying to end discrimination. I don't think 
you do that by passing laws. I think we have to engage people in their 
hearts, in their minds and try to work with that approach.
  While this amendment does not correct or even address all of the 
challenges created by the underlying legislation, I recognize the 
incremental steps it takes. I appreciate the chairman for making this 
effort at trying to resolve these issues. I will support its passage.
  Madam Chairman, I yield back the balance of my time.

                              {time}  1645

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


                 Amendment No. 2 Offered by Mr. Souder

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

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

  The CHAIRMAN. Pursuant to House Resolution 793, the gentleman from 
Indiana (Mr. Souder) and a Member opposed each will control 5 minutes.
  The Chair recognizes the gentleman from Indiana.
  Mr. SOUDER. Madam Chairman, I yield myself 3 minutes.
  My amendment is very simple. It strikes paragraph 3 of 8(a). It does 
that because, what this clause does, in the name of protecting 
homosexuals, actually takes out any ability of any business, any youth 
home, any group, any organization to have any kind of marriage 
criteria. This doesn't go to the defense of marriage question directly, 
although it builds in inherent contradictions, because the last 
amendment, in attempting to address that, merely bred confusion and 
contradiction inside of the bill, which will have to be resolved by 
courts. Defense of marriage makes it so that, for example, somebody 
married in Vermont or Hawaii doesn't have to have their marital status 
recognized in Indiana. But it doesn't address the fundamental question 
of can marriage be a criteria.
  In fact, this bill even goes beyond that. It doesn't allow you to 
have any kind of criteria on any type of sexual behavior. It isn't just 
about homosexual behavior. It isn't clear that any organization can 
have any guidelines on adultery, on polygamy or anything else, because 
by eliminating marriage, by eliminating any kind of sexual standards, 
it's unclear what standards you can have that relate to sex at all. So 
if you have any kind of ministry goal and aren't a profoundly Christian 
organization that falls under the very narrow definition of the last 
amendment, you're in deep trouble here.
  So you can't find things like we've seen just recently on the Web 
site that says things like house parents, cottage parents, counselor 
parents, family teaching couples. Any organization that wants to try to 
do this cannot do so. This obviously comes in for Christian child care 
centers. This is going to come in, which are not overtly Christian 
missions, it's going to come into exercise centers that may be operated 
by religious organizations. It comes into all Christian bookstores, 
obviously, into different counseling centers that maybe both secular 
and Christian counseling will not be covered by their ability to say 
that in order to do family counseling you have to be married and you 
have to subscribe to certain kinds of sexual standards. They will be 
prohibited, because they aren't covered by title VII under a narrow 
definition of title VII.
  My amendment would eliminate all this. It doesn't fix the bill. I 
admit, it doesn't change my opinion on the underlying bill, but it 
helps solve a deeper problem that was created, and I understand why it 
was created, because those who want to protect homosexuals didn't want 
to have a back-door way to, in effect, discriminate against them. But 
by doing this, they set up another class of discrimination, once again 
pitting sexual discrimination up against the right to practice 
religious liberty.
  I'll reserve the balance of my time.
  Mr. GEORGE MILLER of California. I ask unanimous consent to claim the 
time in opposition.
  The CHAIRMAN. Without objection, the gentleman is recognized for 5 
minutes.
  There was no objection.
  Mr. GEORGE MILLER of California. Madam Chair and members of the 
Committee, I first want to correct some of the mistaken assumptions 
that I think Mr. Souder just made in his remarks.
  He claims that the language of section 8(a)(3) would undermine the 
definition of marriage that some States have chosen to adopt. This is 
untrue. Even after ENDA becomes law, regardless of whether section 
8(a)(3) remains in the bill or is taken out, the States, for purposes 
of State law, decide marriage issues for themselves. Nothing in ENDA 
would change that. Nothing in ENDA would alter the Federal laws 
referred to in the Defense of Marriage Act.
  Second, Mr. Souder makes a claim that section 8(a)(3) would have 
prevented an employer from firing an employee who has extramarital sex. 
Frankly, I don't see anything in the text of 8(a)(3) that discusses 
extramarital sex. In fact, I don't see anything anywhere in the text of 
ENDA that discusses extramarital sex, and I can't understand how Mr. 
Souder's come to this conclusion about extramarital sex. But the entire 
issue is just a diversion from what ENDA actually does.
  ENDA is very simple. ENDA will prevent employers from firing a 
perfectly qualified gay, lesbian or bisexual employee just because of 
that employee's sexual orientation.

[[Page 30386]]

  Madam Chairman, in short, I will vote for this amendment, but the 
fact of the matter is I don't think it is necessary. But Mr. Souder has 
pursued this course, and I think that it's important. Another important 
provision of ENDA is the nondiscrimination section that already outlaws 
employers from discriminating based upon sexual orientation through any 
pretext policy including the pretext of marital status.
  Moreover, many States, including Mr. Souder's home State in Indiana, 
have already created State laws that allow a plaintiff to sue their 
employer based upon marital status discrimination. And those State laws 
would further protect against pretextual discrimination against gay and 
lesbian Americans.
  Finally, I want to explain in more detail why I will vote for Mr. 
Souder's amendment. I have realized that section 8(a)(3) is redundant. 
It is unnecessary. The concern that section 8(a)(3) has sought to 
address and will actually be addressed in many cases by section 4 of 
ENDA.
  Let me explain this concern. When Mr. Frank and other original ENDA 
sponsors and I wrote this bill, we were worried that a clever 
discriminatory employer might realize he could not fire a gay employee 
specifically because of his or her sexual orientation, so the 
discriminatory employer might decide to create a pretextual reason for 
firing that person; in this case, the fact that the employee is not 
married or does not have the right to get married. That's why we 
drafted section 8(a)(3).
  However, the thing that convinced me to vote for the Souder amendment 
is the fact that section 4 of ENDA, which my committee marked up and 
favorably reported, makes the Souder amendment practically irrelevant. 
Section 4 of ENDA is the portion of the bill that will very clearly 
prohibit the discrimination based upon sexual orientation. So if an 
employer is actually discriminating based upon sexual orientation, but 
is pretending that the decision is based upon marital status, the gay 
plaintiff will have the opportunity to convince a Federal jury of that 
fact.
  Consider the following example: A large accounting firm that has no 
policy whatsoever about whether its accountants should be single or 
married. That's not hard to picture because not many accounting firms 
anywhere in America have a policy that requires an accountant to be 
married. Being a good accountant is the reason that they hire people.
  Then imagine that one of the accountants in a branch office let's his 
coworkers know that he is gay. Now let's say that the branch office has 
a homophobic manager who the very next day sends out a memo announcing 
a new policy in the branch office that all accountants will have to be 
married to keep their job. The manager has figured out this new policy 
will allow him to fire gay or lesbian accountants, and it happens only 
to an accountant who is unmarried.
  Also imagine that after sending out the memo, the homophobic branch 
manager sends an e-mail to some of his colleagues explaining: ``Now 
that we have our new marriage policy, we can fire that disgusting 
homosexual accountant.''
  That gay accountant will be able to file a lawsuit pursuant to ENDA. 
And that's the point of this legislation. They will be able to put 
evidence before a Federal jury and to try and convince them he was 
really fired because of sexual orientation, not because of marriage 
policy. And that is why this legislation exists.
  My point of this scenario that I've just described to you is that 
already covered by section 4 of ENDA stating that the same thing of 
section 8(a)(3) is just redundant. For all of these reasons I will vote 
for the amendment offered by Mr. Souder. Even if 8(a)(3) is stricken 
from ENDA, I believe that the gay plaintiff will still be able to 
succeed in court and have a meritorious claim.
  I reserve the balance of my time.
  Mr. SOUDER. I yield myself such time as remains.
  The CHAIRMAN. The gentleman is recognized for 2 minutes.
  Mr. SOUDER. I appreciate the Chairman's explanation, and there's no 
use to belabor a point when you've won.
  At the same time, I do want to clarify a couple of things inside 
that.
  A, my amendment is far too weak to reach my own goals, and I realize 
that. I was hoping it could be adopted because I think it improves the 
bill.
  B, I think that the chairman correctly stated the challenge here and 
the inherent inconsistency in the bill. By merely removing this clause, 
it didn't allow, in effect, a bill that was intended to protect gay 
people into other areas, in marriage criteria and other sexual things, 
because that could have been far more reaching because many 
organizations have in one man-one woman marriage clauses, also fidelity 
clauses with the marriage clause, which is why I refer to that.
  In this mix, however, I understand that in the purposes of the bill, 
without the protection that you announced, in fact, somebody could try 
to get around the intent of the bill. And I understand what you're 
trying to address.
  So, in conclusion, while my amendment, I think, doesn't fix or still 
has inherent contradictions, still is going to lead to lawsuits, still 
lead to all sorts of questions, nevertheless, it will improve the bill.
  I appreciate the chairman's willingness to support this amendment. 
It's an incremental improvement. It doesn't fix much, but at least it's 
another small step.
  I yield back.
  Mr. GEORGE MILLER of California. How much time do I have remaining?
  The CHAIRMAN. The gentleman from California has 30 seconds.
  Mr. GEORGE MILLER of California. I yield 15 seconds to the gentleman 
from Massachusetts (Mr. Frank).
  Mr. FRANK of Massachusetts. Madam Chairman, we have these laws in 19 
States. Nothing like that fantasy has ever come forward. There is a 
saying that if it ain't broke, don't fix it. If it doesn't exist, you 
can't fix it.
  They have made this up. We have had the experience for over 25 years 
with laws exactly like this in 19 States.
  Mr. GEORGE MILLER of California. I yield 15 seconds to the 
gentlewoman from Texas (Ms. Jackson-Lee).
  Ms. JACKSON-LEE of Texas. Just on the underlying bill, every American 
deserves to have a nondiscriminatory workplace, and that means whoever 
you are, whatever faith, whatever sexual orientation, you deserve a 
nondiscriminatory workplace.
  I rise to support this legislation and ask my statement to be put 
into the Record and to ensure that my constituents in Houston, Texas, 
can be free of discrimination in the workplace.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Indiana (Mr. Souder).
  The question was taken; and the Chairman announced that the ayes 
appeared to have it.
  Mr. GEORGE MILLER of California. Madam Chairman, I demand a recorded 
vote.
  The CHAIRMAN. Pursuant to clause 6 of rule XVIII, further proceedings 
on the amendment offered by the gentleman from Indiana will be 
postponed.


                 Amendment No. 3 Offered by Ms. Baldwin

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

       Amendment No. 3 offered by Ms. Baldwin:
       Throughout the Act, insert ``or gender identity'' after 
     ``sexual orientation'' each place it appears.
       In section 3(a), after paragraph (5) insert the following 
     (and redesignate succeeding paragraphs accordingly):
       (6) Gender identity.--The term ``gender identity'' means 
     the gender-related identity, appearance, or mannerisms or 
     other gender-related characteristics of an individual, with 
     or without regard to the individual's designated sex at 
     birth.
       In section 8(a), insert after paragraph (2) the following 
     (and redesignate succeeding paragraph accordingly):
       (3) Certain shared facilities.--Nothing in this Act shall 
     be construed to establish an unlawful employment practice 
     based on actual or perceived gender identity due to the 
     denial of access to shared shower or dressing facilities in 
     which being seen unclothed is

[[Page 30387]]

     unavoidable, provided that the employer provides reasonable 
     access to adequate facilities that are not inconsistent with 
     the employee's gender identity as established with the 
     employer at the time of employment or upon notification to 
     the employer that the employee has undergone or is undergoing 
     gender transition, whichever is later.
       (4) Additional facilities not required.--Nothing in this 
     Act shall be construed to require the construction of new or 
     additional facilities.
       (5) Dress and grooming standards.--Nothing in this Act 
     shall prohibit an employer from requiring an employee, during 
     the employee's hours at work, to adhere to reasonable dress 
     or grooming standards not prohibited by other provisions of 
     Federal, State, or local law, provided that the employer 
     permits any employee who has undergone gender transition 
     prior to the time of employment, and any employee who has 
     notified the employer that the employee has undergone or is 
     undergoing gender transition after the time of employment, to 
     adhere to the same dress or grooming standards for the gender 
     to which the employee has transitioned or is transitioning.

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

                              {time}  1700

  This is not a new phenomenon. It is not a fad. And it is certainly 
not a reason to lose one's job.
  Some have asked why it is essential to include protections for 
transgender Americans in this legislation. The answer is that this 
community shares a common history with the rest of the lesbian, gay, 
and bisexual community, a history of suffering, discrimination, and too 
often violence, just for being who they are.
  The importance of nondiscrimination laws cannot be overstated. 
Substantively, they provide legal remedies and a chance to seek 
justice. Symbolically, they say that in America we judge our fellow 
citizens by their integrity, their character, their talents; and not 
their sexual orientation or gender identity, race or religion, age or 
disability.
  Irrational hate and fear have no place in our society. If we truly 
believe in life, liberty, and the pursuit of happiness; if we truly 
want to protect the most vulnerable in our society; if we continue to 
profess that all men are created equal, then we must work towards 
achieving the American Dream for all, and not just for some.
  Madam Chairman, I reserve the balance of my time.
  Mr. SOUDER. Madam Chairman, I claim the time in opposition.
  The CHAIRMAN. The gentleman from Indiana is recognized for 5 minutes.
  Mr. SOUDER. If I may inquire, do I have the right to close?
  The CHAIRMAN. Yes, the gentleman does.
  Mr. SOUDER. Madam Chairman, I yield myself 4 minutes.
  This amendment both would protect transgender in the sense of people 
who have had sex change operations, and transvestites, people who dress 
up as the opposite sex, who are not covered, apparently, under the 
underlying bill.
  This bill was to come in front of our committee. Ostensibly, partly 
because there was a major convention, a disruption occurred on the 
other party's side over this particular amendment, and the bill was 
withdrawn. Then continued debate occurred, and in committee a number of 
the Democrat members voted against the bill because this amendment 
wasn't included, and, presumably, that was going to be so the amendment 
could be offered on the floor and people would have a right to vote on 
this.
  I don't really need a right to vote on it. I think most people 
probably know where I stand on the issue. But I think that to not have 
a vote on an amendment like this is a political ploy. It's a political 
ploy in the sense of what appears to be happening here is that the 
majority doesn't want to have the embarrassment of their side dividing 
on an issue. Or maybe they're afraid that our people would actually 
vote for this amendment and put it over the top to kill the bill, but I 
would suggest on a vote like this, that would be extremely unlikely. I 
think it's more that they want to shield their Members from having a 
difficult vote. Therefore, they can go out and tell the transgender 
community, oh, we tried, but, in fact, in a very peculiar rule, it 
appears that the intention is to keep us from calling for a vote and 
having Members actually show where they stand on this issue, not where 
they give speeches on this issue but where they actually stand on this 
issue. Clearly, the word ``perceived'' in an amendment that I had been 
denied for this bill would have had a huge relevance also to this 
particular category.
  The challenge before us as we look at this, and from a conservative 
perspective, we have heard repeatedly today from multiple speakers, 
from the opening debate on rules, through the general debate, through 
here, that we are eventually going to move in this direction. And yet 
we are told that we as conservatives are paranoiac, that religious 
organizations are going to be protected, this and that, it's going to 
be protected.
  We have seen the Democrats move and add a title VII protection that 
they opposed over in the faith-based for years on this House floor. We 
saw them add a defense of marriage clause, which they had opposed for 
years. We've seen them move even to the point of including, contrary to 
what the majority leader said that the government is applying this, 
know that the military is exempt from having this bill applied to them, 
inconsistency. Clearly, they are willing to tolerate major changes in 
the majority's position in order to move the bill, which moves people 
on the other side to ask, what's the point of moving the bill if there 
are this many compromises? Oh, they've been saying all day long that 
they're going to expand this bill. Once it becomes law, it's going to 
go to court to resolve the different things. Hence, some of us believe 
that many of the things that were added today, on the marriage clause, 
on the religious exemption clause, the blocking of this amendment to be 
offered, were to make the bill more palatable. As my friend the 
chairman of Financial Services said, you can't get everything in the 
first thing. It's to make it more palatable to, in effect, move it in 
place.
  And this isn't the end of the day here. This is the start of a move 
that many of us who just simply don't approve of the lifestyle, there 
are many

[[Page 30388]]

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


                         parliamentary inquiry

  Mr. SOUDER. Parliamentary inquiry.
  The CHAIRMAN. The gentleman will state his inquiry.
  Mr. SOUDER. Since I moved for a recorded vote before the amendment 
was withdrawn and because I had the right to close, how did she get 
recognized over my motion?
  The CHAIRMAN. The gentlewoman withdrew the amendment before the Chair 
put the question on the amendment.
  Mr. SOUDER. But why did you recognize her when I had the right to 
close?
  The CHAIRMAN. The gentleman made the closing remarks in debate. Then 
the amendment was withdrawn.


                         parliamentary inquiry

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


                      Announcement by the Chairman

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


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

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


                             recorded vote

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

                            [Roll No. 1054]

                               AYES--402

     Abercrombie
     Ackerman
     Aderholt
     Akin
     Alexander
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Bachmann
     Bachus
     Baird
     Baker
     Baldwin
     Barrow
     Bartlett (MD)
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Biggert
     Bilbray
     Bilirakis
     Bishop (GA)
     Bishop (NY)
     Bishop (UT)
     Blumenauer
     Blunt
     Boehner
     Bonner
     Bono
     Boozman
     Bordallo
     Boren
     Boswell
     Boucher
     Boustany
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Brady (TX)
     Brown (SC)
     Brown, Corrine
     Brown-Waite, Ginny
     Buchanan
     Burgess
     Burton (IN)
     Butterfield
     Calvert
     Camp (MI)
     Campbell (CA)
     Cantor
     Capito
     Capps
     Capuano
     Cardoza
     Carnahan
     Carney
     Carter
     Castle
     Castor
     Chabot
     Chandler
     Clarke
     Clay
     Cleaver
     Clyburn
     Coble
     Cohen
     Cole (OK)
     Conaway
     Conyers
     Cooper
     Costa
     Costello
     Courtney
     Cramer
     Crenshaw
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis, David
     Davis, Lincoln
     Davis, Tom
     Deal (GA)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Dicks
     Dingell
     Doggett
     Donnelly
     Doolittle
     Doyle
     Drake
     Dreier
     Duncan
     Edwards
     Ehlers
     Ellison
     Ellsworth
     Emanuel
     Emerson
     Engel
     English (PA)
     Eshoo
     Etheridge
     Everett
     Faleomavaega
     Fallin
     Farr
     Fattah
     Feeney
     Ferguson
     Filner
     Flake
     Forbes
     Fortenberry
     Fortuno
     Fossella
     Frank (MA)
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Giffords
     Gilchrest
     Gillibrand
     Gingrey
     Gonzalez
     Goodlatte
     Gordon
     Granger
     Graves
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Hall (NY)
     Hall (TX)
     Hare
     Harman
     Hastert
     Hastings (FL)
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Herger
     Herseth Sandlin
     Higgins
     Hill
     Hinchey
     Hinojosa
     Hirono
     Hobson
     Hodes
     Hoekstra
     Holden
     Holt
     Honda
     Hooley
     Hoyer

[[Page 30389]]


     Hulshof
     Hunter
     Inglis (SC)
     Inslee
     Israel
     Issa
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (GA)
     Johnson (IL)
     Johnson, E. B.
     Jones (OH)
     Jordan
     Kagen
     Kanjorski
     Kaptur
     Keller
     Kennedy
     Kildee
     Kilpatrick
     Kind
     King (IA)
     King (NY)
     Kingston
     Kirk
     Klein (FL)
     Kline (MN)
     Knollenberg
     Kucinich
     Kuhl (NY)
     Lamborn
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Latham
     LaTourette
     Levin
     Lewis (CA)
     Lewis (GA)
     Lipinski
     LoBiondo
     Loebsack
     Lofgren, Zoe
     Lowey
     Lucas
     Lungren, Daniel E.
     Lynch
     Mack
     Mahoney (FL)
     Maloney (NY)
     Manzullo
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (CA)
     McCarthy (NY)
     McCollum (MN)
     McCotter
     McCrery
     McDermott
     McGovern
     McHenry
     McHugh
     McIntyre
     McKeon
     McMorris Rodgers
     McNerney
     McNulty
     Meek (FL)
     Meeks (NY)
     Melancon
     Mica
     Michaud
     Miller (FL)
     Miller (MI)
     Miller (NC)
     Miller, Gary
     Miller, George
     Mitchell
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (KS)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murphy, Tim
     Murtha
     Musgrave
     Myrick
     Nadler
     Napolitano
     Neal (MA)
     Neugebauer
     Norton
     Nunes
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Payne
     Pearce
     Pence
     Perlmutter
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Platts
     Poe
     Pomeroy
     Porter
     Price (GA)
     Price (NC)
     Pryce (OH)
     Putnam
     Radanovich
     Rahall
     Ramstad
     Rangel
     Regula
     Rehberg
     Reichert
     Renzi
     Reyes
     Reynolds
     Richardson
     Rodriguez
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Ross
     Rothman
     Roybal-Allard
     Royce
     Ruppersberger
     Rush
     Ryan (OH)
     Ryan (WI)
     Salazar
     Sali
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Saxton
     Schiff
     Schmidt
     Schwartz
     Scott (GA)
     Scott (VA)
     Sensenbrenner
     Serrano
     Sessions
     Sestak
     Shadegg
     Shays
     Shea-Porter
     Sherman
     Shimkus
     Shuler
     Simpson
     Sires
     Skelton
     Slaughter
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Snyder
     Solis
     Souder
     Space
     Spratt
     Stearns
     Stupak
     Sullivan
     Sutton
     Tancredo
     Tanner
     Tauscher
     Taylor
     Terry
     Thompson (CA)
     Thompson (MS)
     Thornberry
     Tiahrt
     Tiberi
     Tierney
     Towns
     Turner
     Udall (CO)
     Udall (NM)
     Upton
     Van Hollen
     Visclosky
     Walberg
     Walden (OR)
     Walsh (NY)
     Walz (MN)
     Wamp
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Weldon (FL)
     Weller
     Wexler
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (OH)
     Wilson (SC)
     Wolf
     Wu
     Wynn
     Yarmuth
     Young (AK)
     Young (FL)

                                NOES--25

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

                             NOT VOTING--10

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


                      Announcement by the Chairman

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

                              {time}  1735

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


                 Amendment No. 2 Offered by Mr. Souder

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


                             Recorded Vote

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

                            [Roll No. 1055]

                               AYES--325

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

                               NOES--101

     Abercrombie
     Ackerman
     Allen
     Baird
     Baldwin
     Becerra
     Berkley
     Berman
     Bishop (NY)
     Boswell
     Capps
     Castor
     Clarke
     Clay
     Clyburn
     Cohen
     Conyers
     Crowley
     Cummings
     Davis (IL)
     DeGette
     Delahunt
     Dingell
     Ellison
     Engel
     Farr
     Filner
     Giffords
     Gillibrand
     Green, Al
     Grijalva
     Gutierrez
     Hall (NY)
     Hare
     Harman
     Hastings (FL)
     Hinchey
     Hodes
     Holt
     Honda
     Inslee
     Israel
     Jackson-Lee (TX)
     Johnson (GA)
     Johnson, E. B.
     Jones (OH)
     Kennedy
     Kilpatrick
     Kucinich
     Lantos
     Larsen (WA)
     Lee
     Lewis (GA)
     Loebsack
     Lofgren, Zoe
     Lowey
     Matsui
     McDermott
     McGovern
     McNulty
     Meeks (NY)
     Michaud
     Moore (WI)
     Moran (VA)
     Murphy (CT)
     Nadler
     Napolitano
     Pallone
     Payne
     Rothman
     Roybal-Allard
     Rush
     Sanchez, Linda T.
     Sarbanes
     Schakowsky
     Scott (VA)

[[Page 30390]]


     Serrano
     Shays
     Shea-Porter
     Sherman
     Slaughter
     Smith (WA)
     Solis
     Stark
     Sutton
     Towns
     Tsongas
     Van Hollen
     Velazquez
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Wexler
     Woolsey
     Wu
     Wynn
     Yarmuth

                             NOT VOTING--11

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


                      Announcement by the Chairman

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

                              {time}  1744

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

                              {time}  1745


                Motion to Recommit Offered By Mr. Forbes

  Mr. FORBES. Mr. Speaker, I offer a motion to recommit.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. FORBES. In its present form I am.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:

       Mr. Forbes moves to recommit the bill, H.R. 3685, to the 
     Committee on Education and Labor with instructions to report 
     the same back to the House promptly with the following 
     amendment:
       In section 8(c) (as amended), strike ``As used in'' and 
     insert the following:
       (1) As used in
       At the end of section 8(c) (as amended), insert the 
     following:
       (2) Nothing in this Act may be construed to modify, limit, 
     restrict, or in any way overturn any State or Federal 
     definition of marriage as between one man and one woman, 
     including the use of this Act as a legal predicate in 
     litigation on the issue of marriage.

  The SPEAKER pro tempore. The gentleman from Virginia is recognized 
for 5 minutes.
  Mr. FORBES. Mr. Speaker, one of the big concerns that many of us have 
with legislation of this type is that courts across the country have 
used it to establish public policy, and then certain judges have taken 
that and determined from that public policy that they are going to 
redefine the institution of marriage.
  In considering this bill, I am deeply troubled by not only what is in 
the bill, but where I believe this bill is leading us. And you don't 
have to take my word for it. A memo from the Marriage Law Project at 
Catholic University's Columbus School of Law noted this:
  ``ENDA is about more than jobs. It is also about marriage. ENDA is 
based on the idea that State laws restricting marriage to the union of 
one man and one woman are a `subterfuge' for discrimination against 
homosexuals and bisexuals. If the courts accept the proposition that 
marriage is a `subterfuge' for discrimination on the basis of sexual 
orientation, the Defense of Marriage Act will be struck down as 
unconstitutional.''
  And that is the goal, Mr. Speaker. This legislation will ultimately 
allow activist judges across the country to redefine the institution of 
marriage. The majority might say that is not their intent, but I 
guarantee that is exactly what will happen if ENDA passes as it is. If 
we don't vote to stop it, then we are tacitly allowing one of our most 
sacred institutions to be torn down.
  This legislation will provide certain activist judges with the legal 
justification to strike down State and Federal marriage laws that 
define marriage as between one man and one woman. State ENDA laws are 
being used by activist judges to impose same-sex marriage and civil 
unions on States. State courts are using ENDA and other similar laws to 
justify the argument that the government has no rational basis to 
continue discriminating in the area of marriage. And this is not 
something that might happen down the road. It has already happened in 
three States: Massachusetts, Vermont and New Jersey.
  In Massachusetts, the supreme court there decided in Goodridge v. 
Department of Public Health that there was no rational basis for the 
denial of marriage to same-sex couples. In that case the court cited a 
list of State statutes, including nondiscrimination laws, as evidence 
that the State should not discriminate in the area of marriage. The 
court's opinion laid it out clearly, writing, ``Massachusetts has a 
strong, affirmative policy of preventing discrimination on the basis of 
sexual orientation.'' You can't get any clearer than that on how 
nondiscrimination laws can be used to undermine marriage.
  However, even before the Massachusetts decision, the supreme court of 
Vermont in 1999 ordered the State legislature to pass either a same-sex 
marriage or civil union law. The Vermont court relied in part on the 
fact that the State had a law preventing discrimination based on sexual 
orientation. The court said it would be irrational and thus not meet 
the rational basis test to argue that the State could refuse to allow 
same-sex marriage or civil unions when they clearly already had a law 
prohibiting discrimination on the basis of sexual orientation.
  Most recently, New Jersey's courts have gotten into the game. In 
2006, the New Jersey Supreme Court gave the State legislature 6 months 
to pass either a same-sex marriage law or a civil union law. In Lewis 
v. Harris the court stated, ``New Jersey's legislature has been at the 
forefront of combating sexual orientation discrimination and advancing 
equality of treatment towards gays and lesbians. In 1992, through an 
amendment to the law against discrimination, New Jersey became the 
fifth State in the Nation to prohibit discrimination on the basis of 
affectional or sexual orientation.''
  Mr. Speaker, I rise today to ensure that this bill does not become 
the building block that some may want to use to destroy the institution 
of marriage. The motion simply says this: That nothing in this act may 
be construed to modify, limit, restrict, or in any way overturn any 
State or Federal definition of marriage as between one man and one 
woman, including the use of this act as a legal predicate in litigation 
on the issue of marriage.
  On the wall in my office, I have a framed copy of the Declaration of 
Independence and the pictures of our Founding Fathers. This wall serves 
as a reminder to me of the ideals and institutions our country was 
founded on. Yet every day we see people trying to rewrite our history 
and tear down those ideals and institutions.
  This country is great because of the ideals of our Founding Fathers, 
but eventually if we chip away at enough of our values, we will lose 
our foundation. This is what is happening and will continue to happen 
unless we stand up and make sure it doesn't.
  Marriage between a man and woman has been the cornerstone of strength 
in our country, and while it may be under

[[Page 30391]]

attack from all sides, I believe it is an institution worth protecting. 
This motion allows us to take a stand for marriage, for our country, 
and, at least for today, puts a stop to those that are trying or may 
try to use this legislation as a predicate to change those laws. This 
motion would ensure that the intentions of this Congress are clear and 
unambiguous.
  Mr. FRANK of Massachusetts. Mr. Speaker, I rise in opposition to the 
motion to recommit.
  The SPEAKER pro tempore. The gentleman is recognized for 5 minutes.
  Mr. FRANK of Massachusetts. Before I begin, I have an inquiry: If I 
could yield to the gentleman from Virginia, the proponent of the 
motion, would he consider my making a unanimous consent request to 
change this to a ``motion of forthwith,'' so the House could simply 
adopt this ``forthwith'' and go to dinner?
  Mr. FORBES. I would object.
  Mr. FRANK of Massachusetts. Well, this is now clear. This is a motion 
to do this promptly. ``Promptly'' means at the speediest nine calendar 
days, because it does not, as the Parliamentarian has informed us in 
writing, waive any of the rules for committee meetings, for Rules 
Committee, et cetera. So the purpose here, the intent, perhaps not the 
purpose, but the unmistakable intent would be to put this off until 
after we are due to adjourn November 16. And for what purpose? For the 
purpose of restating what has already been stated.
  It is interesting, Mr. Speaker, and I take some encouragement from 
this, that opponents of the principle of nondiscrimination don't want 
to debate it on its merits. We haven't heard any defense of 
discrimination. We just have a parliamentary maneuver to protect it.
  This is not about marriage. In fact, this is not a recommit. It is a 
statement. It says ``nothing in this act may be construed.'' Correct. 
No one who reads English could think to the contrary.
  But, just to make sure, the gentleman from California offered a 
motion, and the minority tried to have it not be roll-called, and you 
voted for it, Members of the House. It says, ``As used in this act, the 
terms `married' or `marry' refer to marriage as defined in section 7, 
title I of the U.S. Code, the Defense of Marriage Act.'' The Members of 
the House just voted overwhelmingly to reaffirm that definition.
  So what do we have? A motion now simply to delay by reaffirming the 
last vote.
  The gentleman from Indiana thought there was some other language that 
might lead to a marriage problem, so we adopted that. So this is the 
third effort to say the same thing. It is not to say the same thing, 
but to defeat it.
  I would say this. I would recommend to my friend from California, who 
has done such a good job on this, once we have concluded this, report 
this out as a separate bill, this third reiteration, if it gives people 
some comfort.
  I asked the gentleman to make it ``forthwith.'' If there was a real 
need to do this, it would be now part of the law and we would be 
voting. It is ``promptly'' because it adds nothing to the bill, 
nothing, literally nothing; it subtracts nothing. It is simply a motion 
to delay.
  I now want to address that. I want to address the motion to delay.
  Mr. Speaker, we say here that we don't take things personally, and 
usually that is true. Members, Mr. Speaker, will have to forgive me. I 
take it a little personally.
  Thirty-five years ago, I filed a bill to try to get rid of 
discrimination based on sexual orientation. As we sit here today, there 
are millions of Americans in States where this is not the law. By the 
way, 19 States have such a law. In no case has it led to that decision. 
The Massachusetts law passed in 1989, that did not lead to the decision 
in 2004. Unrelated.
  But here is the deal. I used to be someone subject to this prejudice, 
and, through luck, circumstance, I got to be a big shot. I am now above 
that prejudice. But I feel an obligation to 15-year-olds dreading to go 
to school because of the torments, to people afraid that they will lose 
their job in a gas station if someone finds out who they love. I feel 
an obligation to use the status I have been lucky enough to get to help 
them.
  I want to ask my colleagues here, Mr. Speaker, on a personal basis, 
please, don't fall for this sham. Don't send me out of here having 
failed to help those people.
  We have already today twice voted overwhelmingly to repudiate any 
suggestion that this had anything to do with marriage. What you have is 
a ploy by people who want to keep discrimination on the books, who want 
to deny protection to so many vulnerable victims of discrimination, but 
they at least understand that is not something you can say explicitly. 
So they give us this sham.
  I ask, I ask again, would the gentleman allow us to adopt this 
forthwith? I would yield to the gentleman for that purpose so we can 
make that forthwith.
  Mr. FORBES. Mr. Speaker, I would be glad, if the gentleman would 
yield me some time.
  Mr. FRANK of Massachusetts. I asked the gentleman a simple question.
  Mr. FORBES. If the gentleman doesn't want me to respond, then I 
won't.
  Mr. FRANK of Massachusetts. The response is ``no.'' I was ready to 
yield to make this ``forthwith'' so this extra language which does 
nothing could be added. But if you don't do that, as they won't, and 
you vote for this, you are killing this bill. Understand that. Nine 
days later it is too late for this bill and we are out of this.
  So I will close with this. Yes, this is personal. There are people 
who are your fellow citizens being discriminated against. We have a 
simple bill that says you can go to work and be judged on how you work 
and not be penalized. Please don't turn your back on them.
  The SPEAKER pro tempore. Without objection, the previous question is 
ordered on the motion to recommit.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. FORBES. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 and clause 9 of rule 
XX, this 15-minute vote on the motion to recommit will be followed by a 
5-minute vote on passage of the bill, if ordered, and suspension of the 
rules and adoption of House Concurrent Resolution 236.
  The vote was taken by electronic device, and there were--yeas 198, 
nays 222, not voting 13, as follows:

                            [Roll No. 1056]

                               YEAS--198

     Aderholt
     Akin
     Alexander
     Altmire
     Bachmann
     Bachus
     Baker
     Barrett (SC)
     Barrow
     Bartlett (MD)
     Barton (TX)
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonner
     Boozman
     Boustany
     Brady (TX)
     Broun (GA)
     Brown (SC)
     Brown-Waite, Ginny
     Buchanan
     Burgess
     Burton (IN)
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carter
     Castle
     Chabot
     Coble
     Cole (OK)
     Conaway
     Crenshaw
     Culberson
     Davis (KY)
     Davis, David
     Davis, Lincoln
     Davis, Tom
     Deal (GA)
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Donnelly
     Doolittle
     Drake
     Dreier
     Duncan
     Ehlers
     Ellsworth
     Emerson
     English (PA)
     Everett
     Fallin
     Feeney
     Ferguson
     Flake
     Forbes
     Fortenberry
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Granger
     Graves
     Hall (TX)
     Hastert
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Hill
     Hobson
     Hoekstra
     Hulshof
     Hunter
     Inglis (SC)
     Issa
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Jordan
     Keller
     King (IA)
     King (NY)
     Kingston
     Kline (MN)
     Knollenberg
     Kuhl (NY)
     Lamborn
     Lampson
     Latham
     LaTourette
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     Marshall
     Matheson
     McCarthy (CA)
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McIntyre
     McKeon
     McMorris Rodgers
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy, Tim
     Musgrave
     Myrick
     Neugebauer
     Nunes
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Poe

[[Page 30392]]


     Porter
     Price (GA)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Roskam
     Royce
     Ryan (WI)
     Sali
     Saxton
     Schmidt
     Sensenbrenner
     Sessions
     Shadegg
     Shimkus
     Shuler
     Simpson
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Souder
     Space
     Stearns
     Sullivan
     Tancredo
     Taylor
     Terry
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walberg
     Walden (OR)
     Walsh (NY)
     Wamp
     Weldon (FL)
     Weller
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                               NAYS--222

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

                             NOT VOTING--13

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


                Announcement by the Speaker Pro Tempore

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

                              {time}  1816

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

                            [Roll No. 1057]

                               YEAS--235

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

                               NAYS--184

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

[[Page 30393]]


     Turner
     Upton
     Velazquez
     Walberg
     Walsh (NY)
     Wamp
     Weiner
     Weldon (FL)
     Weller
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--14

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


                Announcement by the Speaker Pro Tempore

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

                              {time}  1823

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

                          ____________________