Executive Session

Floor Speech

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Mr. MERKLEY. Mr. President, this morning we received news that the Supreme Court has ruled in regard to our Dreamers, our Deferred Action Childhood Arrival children, who came to America knowing no other country, and now the Court has said that President Obama did have the authority to establish the DACA Program and that President Trump does not have a basis in law for ending it.

Hundreds of thousands of Dreamers now have full legal authority to continue their lives in America--the country they know and love--and pursue their dreams, and we must celebrate that today. Equality Act

Mr. President, I come to the floor on another issue of freedom. President Johnson said:

Freedom is a right to share, share fully and equally, in American society. . . . It is the right to be treated in every part of our national life as a person equal in dignity and promise to all others.

It was 1996 when Senator Ted Kennedy brought the issue of ending discrimination in employment to the floor of the Senate. In that year, not so long ago, virtually everything was simple majority in the Senate, as designed by our Founders, as written in the Constitution. The vote failed 49 to 50 because Senator David Pryor was at the hospital attending to his son, the future Senator Mark Pryor, who had cancer. It was a moment when the Senate nearly took a big stride forward in ending discrimination in employment in America against our LGBTQ community.

Then, in November 2013, I brought to the floor the same bill, ENDA, ending discrimination in employment. This Senate voted in a bipartisan majority to end that discrimination. In fact, the vote was 2 to 1--64 to 32. Yet that bright moment here in the Senate, where we stood for the vision of freedom, was not acted on by the House, and the bill did not make it to the President's desk.

Now we stand here today, in 2020, and the Supreme Court on Monday in Bostock v. Clayton County, in a 6 to 3 decision, has proceeded to act to end discrimination in employment. In writing the opinion, Justice Gorsuch said: ``In Title VII''--referring to the 1964 Civil Rights Act--``Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.''

He wrote: ``Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.''

Everyone looked to the next paragraph and what would the answer be? Gorsuch wrote this:

The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in that decision, exactly what Title VII forbids.

Well, let the bells of freedom ring here in this Chamber and across America. On Sunday of this last week, the day before the Supreme Court decision, discrimination in employment against gay, lesbian, and bisexual Americans was still legal in 29 States--a majority of States in our country--and, on Monday, that discrimination ended. It is now illegal in all 50 States of America, in all territories of America to discriminate on the basis of who you are or whom you love.

The Court took a long, powerful stride toward the vision carved above the doors of the Supreme Court: ``Equal Justice Under Law.'' No longer can a mental health counselor named Gary Bostock be fired from his job at child welfare services department for playing in a gay softball league. No longer can a skydiving instructor named Donald Zarda be fired because he is gay. No longer can a police officer in southern Oregon named Laura Elena Calvo--with a sterling 16-year record of promotions, commendations for pulling people from burning cars, delivering babies on the side of the road, saving lives and more--be fired because she was a transgender woman.

Employment discrimination ends in America. Let us savor that victory for freedom. Let us celebrate that victory for equality and opportunity. It is a long, powerful stride forward on the march for freedom. But a long stride forward in a march, however significant, does not mean that the march is over because, as wonderful as that victory on Monday was, as wonderful it is to have discrimination end in employment across the land, we still have a long way to go before LGBTQ Americans are treated in every part of our national life as people equal in dignity and promise to all others.

The protections on Monday involve employment, but those protections do not extend to the titles of the 1964 Civil Rights Act that address other issues--issues of education, issues of public accommodations--and they don't extend to credit, financial transactions, transactions covered by the CREDIT Act. They don't extend to jury service. They don't extend to Federal funding of programs, meaning it is legal for States to discriminate or cities to discriminate or counties to discriminate on the basis of Federal law against participation in Federal programs. It is unbelievable that we are still in that state, but that is where we are. That is where we are right now, with discrimination ended in employment but not ended in all of these other categories.

There are a couple of possible paths forward. One is litigation that continues on the same premise on which the Supreme Court acted on title VII of the 1964 Civil Rights Act, and that means litigation in each of these categories, case after case, slowly making its way through the courts, slowly making it to the Supreme Court, meaning discrimination continues year after year while the courts deliberate on this.

I have heard a number of Senators say the Court acted, but Congress should have done it. Well, now we have the opportunity to do it. We have the opportunity to do it by putting the Equality Act on the floor of this Senate, putting it on the floor of the Senate today, having a debate today, and having a vote today on whether to extend the very premise at the heart of the Supreme Court's decision in employment to all of the other key areas of discrimination that is still suffered across this land.

Let us put the Equality Act on the floor. Let us debate it. Let us pass it to fulfill the vision Thomas Jefferson put forward when, in the words crafted for the Declaration of Independence: ``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.''

Let us put the Equality Act on the floor of the Senate. Let us debate it, and let us pass it to act on the premise that Senator Ted Kennedy expressed: ``The promise of America will never be fulfilled as long as justice is denied to even one among us.''

Let us put the Equality Act on the floor of the Senate and debate it and pass it to fulfill the promise of freedom, the promise of freedom that President Johnson so well expressed in ``the right to be treated in every part of our national life as a person equal in dignity and promise to all others.''

We have the power to ring the bells of freedom here in this Chamber. Let us not miss this opportunity.

I am so pleased to be here with my colleagues who have fought for this vision of freedom and equality and opportunity--my colleague Tammy Baldwin from Wisconsin and my colleague Cory Booker from New Jersey, who have been champions in leading this fight--a fight envisioned now by a tremendous number of Senators endorsing and cosponsoring the Equality Act. Let us put that act on the floor

I yield to my colleague from Wisconsin.

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Mr. MERKLEY. Mr. President, I appreciate the powerful words, the passionate delivery of stories on the defense of freedom, the defense of equality, the advance of justice, and the presentations of my colleagues from Wisconsin and Michigan, my partner from Oregon, my friend from Colorado, the Senator from Minnesota, and Senator Booker from New Jersey. Their words speak to the heart of what our Nation is about--equality, opportunity, justice, and freedom.

I will, therefore, ask that we bring this bill about equality to the floor, that we go forward in the great tradition of this Chamber and this Senate to debate issues that involve the opportunity for every individual to thrive in our Nation. Time and again, we have held those debates before. We held them in 2013 on the Employment Non- Discrimination Act.

Now, I understand some colleagues have come to the floor to object to this Senate's entertaining such an important debate. They have come to the floor to obstruct the opportunity of this Chamber to engage in a dialogue on this important issue--so violent to the life of millions of Americans. I ask them to reconsider.

Have the courage to debate this issue on the floor--to bring, in the great tradition of this country, an issue violent to freedom to be considered here.

One colleague responded to the Supreme Court's decision on employment nondiscrimination earlier this week by saying: This judicial rewriting of our law short-circuited the legislative process and the authority of the electorate. Well, let no Member of the Senate today short circuit the legislative process by objecting to this important debate on the floor of the Senate.

On behalf of equality and opportunity and freedom, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of H.R. 5 and the Senate proceed to its immediate consideration. Further, that the bill be considered read a third time and passed and that the motion to reconsider be considered made and laid upon the table.

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Mr. MERKLEY. Madam President, I am disappointed that my colleagues have come to the floor to stand in the way of a debate, in this esteemed Chamber, over issues of freedom, issues of opportunity, and issues of equality that affect millions of LGBTQ Americans.

What did we hear in their conversation? My colleague from Utah says there is no chance for debate. Has my colleague forgotten that bringing a bill to the floor brings it to debate? Is that such a lost art in the Senate that my colleague thinks debating a bill on the floor somehow squelches debate? It is a mystery to me how one can make the argument that bringing a bill to the floor kills debate.

My colleague from Oklahoma laments there is no committee action. Well, my colleague might be reminded that for 400 days this party has controlled whether or not there is committee action on this bill; that it is the majority that decides whether a committee addresses the issues before it. Is not 400 days of inaction in committee an argument to have the conversation here as a committee of the whole? Isn't that what we are asking for--a committee of the whole to debate these key issues?

My colleagues have also referred to how somehow this bill affects religious rights, and I am taken back through the history of the conversation and dialogue about equality and opportunity in America, how every time we seek to end discrimination, someone says: But wait-- religious rights.

Remember that this was the argument against Black and Brown Americans having equality here in the United States of America because their religion said they are not equal and they shouldn't be let in the door and I should have the right to not let them in the door.

I should have the right to discriminate. Isn't that the conversation we heard around the opportunity for women in America to play a full role in our society, that people had a religious foundation for discriminating between men and women? Well, I tell you that this Nation, although imperfect, was founded on a vision that everyone is created equal and has a full chance to participate.

We have worked over hundreds of years to get toward the goal that every child can thrive in America, no matter their gender, no matter the color of their skin, no matter if they are identified as gay, lesbian, or bisexual, no matter if they are transgender. That is the conversation we should be having here.

I feel the injury of a Senate that is no longer a Senate, where people tremble in their seats over the idea of having a debate. What has happened to this esteemed body that that should be the case?

So let us not rest. For those colleagues across the aisle who have said that the Supreme Court shouldn't have acted this week, that it should be the legislature that acts, and yet come to the floor and don't argue--fail to argue--that we should, in fact, act, isn't that obstruction of the legislative process?

I would encourage my colleagues who say that there are important issues to be considered to go to their leadership and say ``Let's get the committee that has this bill, the Equality Act, to start doing its job: Hold the hearings; hold the conversation'' because to fail to argue that it should be done in committee while you lament on the floor that the committee hasn't acted is certainly an argument with no integrity.

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