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.” The bill raises concerns on constitutional and policy grounds, and if H.R. 3685 were presented to the President, his senior advisors would recommend that he veto the bill.
H.R. 3685 is inconsistent with the right to the free exercise of religion as codified by Congress in the Religious Freedom Restoration Act (RFRA). The Act prohibits the Federal Government from substantially burdening the free exercise of religion except for compelling reasons, and then only in the least restrictive manner possible. H.R. 3685 does not meet this standard. For instance, schools that are owned by or directed toward a particular religion are exempted by the bill; but those that emphasize religious principles broadly will find their religious liberties burdened by H.R. 3685.
A second concern is H.R. 3685’s authorization of Federal civil damage actions against State entities, which may violate States’ immunity under the Eleventh Amendment to the U.S. Constitution.
The bill turns on imprecise and subjective terms that would make interpretation, compliance, and enforcement extremely difficult. For instance, the bill establishes liability for acting on “perceived” sexual orientation, or “association” with individuals of a particular sexual orientation. If passed, H.R. 3685 is virtually certain to encourage burdensome litigation beyond the cases that the bill is intended to reach.
Provisions of this bill purport to give Federal statutory significance to same-sex marriage rights under State law. These provisions conflict with the Defense of Marriage Act, which defines marriage as the legal union between one man and one woman. The Administration strongly opposes any attempt to weaken this law, which is vital to defending the sanctity of marriage.
Ummm, so what was all that fuss about dropping transgender individuals from coverage in ENDA in order to get a bill enacted into law which would help people right now?
As many people have been arguing for weeks during the whole ENDA brouhaha, there is no way that any bill which provides statutory protections from discrimination for gays and lesbians was going to become federal law as long as George W. Bush is president (January 21, 2009). So, therefore the argument that splitting ENDA by removing "gender identity" from the original bill (H.R. 2015) to produce a Split-ENDA (i.e. SPLENDA) was a hallmark of legislative pragmatism has always been a stretch. I can support the notion that Congressman Barney Frank and other Democratic House leaders wanted to make a statement by passing a gay rights bill in the House, but if one is simply making a statement why not choose the strongest statement, instead of the weakest?
Regardless, Mad Professah disagrees with organizations and activists calling for a vote against H.R. 3685. Instead, I have always supported the passage of H.R. 2015 (original ENDA) and H.R. 3685. In particular, I strongly support the Baldwin Amendment to H.R. 3685 which would restore protections against employment discrimination based on gender identity to the bill.
In light of the Presidential statement, House leaders have rescheduled Wednesday's planned vote on H.R. 3685 on the House floor.
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