-9999

Floor Speech

BREAK IN TRANSCRIPT

Mr. LEE. My staff and I have been in close contact with the Department of Defense regarding Ms. Harris's nomination. The Department of Defense is aware of my concerns with the nominee and also aware of the very simple request that I have made to the Department in connection with her nomination.

BREAK IN TRANSCRIPT

Mr. LEE. Mr. President, the Supreme Court's decision in Obergefell v. Hodges is the law of the land. A single line from a single concurring opinion does not make the case for legislation that seriously threatens religious liberty.

The Respect for Marriage Act is unnecessary. States are not denying recognition of same-sex marriages, and there is no serious risk of anyone losing recognition. There is not a single piece of legislation that I am aware of moving through the Congress or any State legislature to do the same.

But the Supreme Court majority explicitly stated in its Dobbs ruling earlier this year that the Dobbs decision had no bearing on the recognition of same-sex marriage. The proponents of this bill falsely claim that same-sex marriage is under attack because Justice Thomas suggested in a concurring opinion in Dobbs that the Supreme Court should take a closer look at all of its substantive due process jurisprudence; not necessarily to strike down those rulings, but often to consider whether they should be premised on a different constitutional hook. The majority opinion is what mattered, and it is the one that the majority of the Supreme Court supports.

Now proponents of this bill pretend that the legislation would simply codify the status quo. I take exception to that because I don't think that is true. But even before we get to that issue, I think it is important for us to think about what codifying Obergefell on its own terms could mean and why it is that we ought to look at steps to protect religious freedom in light of Obergefell and in light of anything that purports to codify Obergefell.

I remember when the Obergefell case was being argued before the Supreme Court of the United States in 2015. Solicitor General Don Verrilli, in representing the U.S. Government--with then the Obama administration in power--was arguing before the Court, and Justice Alito, my former boss, interjected with a question.

He asked Solicitor General Verrilli, if the Supreme Court of the United States recognized a constitutional right to same-sex marriage throughout the United States, whether that, when read with other precedent--read in context with other Federal civil rights protections, along with prior Supreme Court rulings--might not result in the risk of some nonprofits, including some schools and universities, being threatened with the loss of their tax-exempt status.

Solicitor General Verrilli responded immediately and unambiguously. He said: Yes, Justice Alito. That is going to be a problem.

He reiterated it three times that that would be a problem and that it would be something that would have to be addressed.

What he was acknowledging was that there was a real risk dealing with Obergefell itself in that, unless we take steps to protect religious colleges, religious universities, and other religious nonprofits, some of those might be threatened with the loss of their tax-exempt status, based solely on their religious beliefs about marriage--about what a marriage is and what it is not.

Many in the immediate wake of Obergefell came right out, and purporting to offer comfort to religious Americans and religious institutions in America, many came forward and said: Oh, this risk isn't going to materialize.

As I recall it, President Obama, at the time, said: Look, I am not going to force any church to perform a same-sex marriage contrary to its religious teachings.

That isn't how this happens. That is not how this risk materializes. That isn't the risk. It never really was the risk. The risk is, rather, whether religious Americans, whether acting individually or as a group, will be retaliated against--denied some privilege or status or access under Federal law to which they would otherwise have access--based solely on a religious- or a moral conscience-based belief about the definition of marriage.

So that risk exists independent of this legislation. It has been enhanced by the Obergefell ruling, and it would be materially enhanced if this legislation were to pass without corresponding, necessary, statutory protections for religious freedom.

Indeed, Cardinal Timothy Dolan of the United States Conference of Catholic Bishops warns of this very thing.

He warns as follows:

This bill's harms would be far-reaching. In any conflict with same-sex civil marriage and the rights that flow from it, it will be said that Congress took pains to codify Obergefell, but not to protect the freedoms of speech and religion that Obergefell harms, making them second-class rights.

In other words, this bill only makes things worse. This bill takes the preexisting risks presented by Obergefell itself and enhances them, expands them, especially because, by protecting one set of interests-- those identified in Obergefell, in the decision itself--but doing nothing to address the corresponding enhanced risks we are presenting for religious freedoms, it makes for a very, very significant concern.

He continues:

The bill will be a new arrow in the quiver of those who wish to deny religious organizations' liberty to freely exercise their religious duties, strip them of their tax exemptions, or exclude them from full participation in the public arena.

So this bill--this bill that has been brought before us--will, unless modified as necessary, result in three significant problems.

First, the bill will label people of faith with differing views on marriage, influenced by their religious beliefs and moral convictions, as bigots.

Second, the bill's new private right of action will subject religious Americans to a torrent of litigation--even more than they face now. Doing so will further erode their constitutional right to freely live according to their religious beliefs. This is, after all, what happens any time we allow for the free exercise of religion to be chilled by such action.

Third, the bill will put in jeopardy the work and existence of religiously minded social agencies, educational institutions, and other nonprofits as their tax-exempt status will be threatened.

Our country was founded on the principle that government should not interfere with the ability of people of faith or of people of no faith at all to practice their religion and to live by the tenets of their own faith in their daily lives.

Of course, this can and should be done without interfering with the right of other people to live their lives. That is what we expect. In fact, every time we as Americans seek to protect freedoms, liberty, whether through the adoption of the First Amendment or the adoption of the equal protection clause of the 14th Amendment, for example, or anywhere else, we seek to do it in a way that doesn't create a zero-sum game by enhancing the rights of some while diminishing the rights of others. That is not who we are. That is not how we roll. That is not how our constitutional framework was ever intended to function. It is antithetical to who we aim to be.

This bill elevates the rights of one group and does so at the expense of another, and it does so needlessly as there is a way to accommodate both interests, but that way, unfortunately, isn't pursued by the authors of this bill.

Many, including some on the left, want to label people who disagree with them on marriage as bigots and force them, in this instance, through endless litigation and threats, to comply with the beliefs of the left and renounce their genuine, sincere religious beliefs.

Proponents of this bill claim that the substitute amendment, which we saw for the first time just a few days ago, somehow fixes all of the concerns raised by those of us who want to protect religious liberty. They are wrong. They couldn't be more wrong. They are sadly, sadly, and severely mistaken. The amendment's narrow protections for people of faith apply to only limited circumstances--for example, to the solemnization and celebration of marriages. That protection and a few others are severely anemic when viewed against the backdrop of the threat to religious freedom presented by this bill.

Indeed, these changes brought about by the most recent amendment do nothing to prohibit the already existing, already mounting threat of government discrimination against individuals and organizations that hold traditional views regarding marriage--a risk that is materially enhanced by this legislation and all that will flow from it.

For example, Catholic Charities and other religious adoption agencies could be shut out of foster care and adoption ministries due to discriminatory government policies--policies that discriminate against them specifically because of their religious beliefs. The bill will only exacerbate what is already occurring in Illinois, Massachusetts, California, and the District of Columbia, potentially making this a nationwide trend.

The United States Conference of Catholic Bishops' work with the Department of Health and Human Services in providing foster care to unaccompanied alien children and to unaccompanied refugee minors will be even more at risk than it is right now.

The legislation itself will put religiously affiliated schools and faith-based organizations and others who hold traditional views of marriage at even more risk of being compelled to hire or retain employees whose conduct contradicts their religious beliefs. Wedding vendors will potentially be subject, because of this legislation, to increased lawsuits, harassment, and the destruction of their livelihoods based on their religious beliefs and their desire to live their lives according to their beliefs. This includes small- and family-owned businesses, including religious businesses like kosher caterers.

Nonprofits face the potential revocation of their tax-exempt status based on their religious beliefs. At a time when we have added 87,000 new IRS agents, we shouldn't give them any additional encouragement to abuse that power in a way that threatens the beliefs and institutions that are so important to so many Americans and that form the bedrock of some of our most important institutions.

The bill's proponents claim that they want to protect religious liberty and that their most recent amendment does that, but they refuse to adopt my amendment or anything like it that would prohibit the Federal Government from discriminating against people or organizations that have traditional views on marriage based on sincerely held religious beliefs and moral convictions.

In many instances, they claim that the most recent amendment, in fact, does that--or they at least suggest that. The language of the most recent amendment even reads as if it might be going in that direction, but a closer inspection reveals that, alas, it does not. It does no such thing.

By suggesting that it doesn't do anything to alter or revoke tax- exempt status or any other status under Federal law--that the bill itself doesn't do that--it ignores the fact that this bill sets in motion, keeps in motion, and accelerates existing threats to religious freedom and to their revocation of tax-exempt status for broad categories of nonprofits based on religious beliefs.

It is disingenuous to suggest that this halts government from doing what I am warning of here. This amendment does not do that, which begs the question: Why? Why wouldn't they accept it?

Importantly, my proposed amendment places no restrictions on individuals or even on State or local governments. It simply prohibits the Federal Government from discriminating against individuals or organizations that have sincerely held religious beliefs or moral concerns that marriage is and should be a relationship between a man and a woman. That is all.

What I don't understand is why my colleagues claim to want to protect religious liberty and uphold the First Amendment and, in fact, claim that their amendment essentially does that while simultaneously opposing my amendment so vigorously. I think we all know the answer to that question.

The bill pays lip service to protecting religious liberty, but it does not even begin to address the most serious, egregious, and likely threats to religious liberty presented by this bill. Those with differing views and beliefs can exist in the United States without threatening the constitutionally protected rights of one group--rights upon which our country was founded--to score political points.

You see, that is the beauty of America. Our Founding Fathers believed strongly in the principle that all religious beliefs should be protected, not just those favored by those in charge of government. It is yet another reason why, when we approach rights through legislation in the U.S. Senate and as Americans more broadly--when we protect rights--we know that we have a duty, an obligation, and an ability to secure those rights that we are trying to secure in a way that doesn't undermine the rights of others.

The fact that one group of Americans might have more political support for a particular right and in protecting that right doesn't make it OK within our system, within our culture, within our traditions to undermine the rights of others. That is exactly what we are facing here.

The good news is we can fix it. We can fix it. It is easy to amend this thing in a way that doesn't have to be this way. I have yet to hear any of my Democratic or Republican colleagues who supported the bill say that they want the Federal Government to be able to go out and indiscriminately threaten the revocation of tax-exempt status in order to punish religious beliefs with which they disagree.

I have yet to hear a single Republican or a single Democrat in the House or in the Senate or anywhere else in this town say--I have yet to hear any of them say--yes, that is what we want to do.

In fact, everyone who has addressed the issue has said: No, that is not what we want to do. Most of those on this bill have said: No, we have already taken care of that with this amendment. If that is really true, let's just adopt my amendment.

And if you don't want to do it in that form, if you want to write out another version of the same thing, something that does the same thing, that is fine too. But they shouldn't be able to punish religious belief. That is all I want, a protection saying the Federal Government may not punish any individual or entity based on a religious or moral conviction-based belief about marriage. That is not too much to ask.

If you ask any American citizen whether that was reasonable, shoot, if you ask any Member of this body in public whether that is fair and reasonable, I think they would have to say yes because it is.

When legislation goes through this body and through this Congress in the proper way, we have a better chance of ironing out these details, of making sure that we are not expanding the zone of protected rights and interests of some at the expense of others. We do that pretty well.

Mr. President, you and I serve together on the Judiciary Committee. That is the committee of jurisdiction for legislation like this. This legislation should have gone through the Judiciary Committee, and yet we have not held a single hearing on it. We have not marked up this bill in Judiciary. We haven't independently voted on this bill in the Judiciary Committee.

In fact, it hasn't been through any committee process in the Senate that I am aware of. If it had, you know the kind of work we would have run it through, the kind of work we would have put into it, and the kind of carefully crafted language we could have produced as a result of it.

I am confident we could have and would have and definitely should have worked this out in committee had we had the opportunity to do so.

This legislation bypassed committees. Sometimes that happens. I understand that it happens from time to time. It is usually a very unfortunate thing when it does. But when it does, it does not excuse us from the obligation to try to replicate that process by at least making sure that we are not harming other people outside the immediate zone of intended protected beneficiaries of the legislation in question. That is all I am asking for here, and it isn't too much to ask.

States and the Federal Government can, and surely will, continue to recognize the validity of same-sex marriages, and they can do so without trampling on the First Amendment rights of those who believe in traditional marriage.

That is what it means to live in a pluralistic society. That is what it means to live in a society where we respect each other's differences, we allow each other to be who we are, live as we choose to live. That can't be done unless we allow each other to believe as we believe and not retaliate against others simply because they believe differently than we do.

Americans of good faith can continue to live by their own religion and daily life by living as they do and doing so without posing any threat to those who disagree with them. I am confident of that. But this bill does not strike that balance. It purports to do so, and it fails.

It labels people of good faith as bigots and subjects them to endless harassing litigation and discrimination and threats by that same government that was founded to protect their religious liberty.

Let's do this the right way, not the wrong way. We need to protect religious freedom. This bill doesn't do that. It places it in grave jeopardy. Let's fix the problem.
BREAK IN TRANSCRIPT

Source