Windsor v. The United States Of America
Filing
30
AFFIDAVIT of Andrew J. Ehrlich in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Ehrlich, Andrew)
EXHIBIT 6
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or an organization, maybe with somewhat of a religious orientation or
moral commitment, finds that behavior very repulsive. If such individual or
organization did not want to hire such
a person or continue their employment, they would find themselves subject to suit. If ENDA passes, the Federal Government will say: Wait a
minute. You can’t make any distinctions no matter what your religious beliefs are. You can’t make any distinction on account of a person’s sexual
orientation.
‘‘Bisexual’’ by definition means promiscuous, having relations with both
male and female. We are going to give
that a Federal preferred protected status under this legislation. I think that
is a serious mistake. What about that
school board in West Virginia? What
about a school board in Montana? What
about a school board making decisions
like this in Alabama where maybe this
small community says we do not think
we should have avowed open homosexual leaders, gay activists, as teachers in the fifth grade?
Mr. President, I ask unanimous consent for an additional 5 minutes.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. NICKLES. If they want to have
that policy—right now they are able to
choose to have such a policy. If this
legislation became law, they could be
sued. I think it is important to point
that out. Do we want to give that kind
of special status to behavior that many
Americans find objectionable? Some
people have said, ‘‘Well, it’s immutable.’’ I would debate that or question
that. But many, many people feel, because of Biblical orientation, that it is
immoral. Do we want to give that special protection and status to ‘‘sexual
orientation’’ under the Civil Rights
Act?
I met with a couple of black ministers who were very offended by the
assessment of some that, well, this is
just another special class that needs
special status, such as race and gender.
They are offended because they participated in civil rights demonstrations
and they worked to bring about civil
rights for minorities. They are very,
very offended by this. So, Mr. President, I just make that comment. Plus,
I want to make another comment in regard to the military.
The legislation exempts the military.
I guess everybody applauds that. This
Congress, 3 years ago, voted basically
to repeal President Clinton’s efforts to
say that homosexuals should serve in
the military. It was one of President
Clinton’s first efforts in this Congress.
In a bipartisan fashion, we said we do
not agree, and we changed the President’s policy. He did not like it, but we
changed it. And we came up with a policy, ‘‘don’t ask, don’t tell.’’ Most of us
basically were comfortable with that
result and still are. That is the law of
the land today.
It was not what President Clinton
wanted. President Clinton wanted to
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have gays serve in the military, but a
lot of us thought, no, that is a mistake.
Evidently, the promoters of the legislation agree this is a mistake because
they do not try to change this policy in
ENDA. They said, OK, we are going to
have an exemption for the military.
The military is a large Federal employer. We are going to exempt the
military from this language.
Wait a minute. We have millions of
private companies and employers in
this country that we are going to say,
wait a minute, for this big Federal employer, the Federal Government, we
are going to exempt them from this
policy of nondiscrimination based on
sexual orientation. But for all other
employers, no matter what your religious conscience tells you, no matter
what your religious beliefs are, whether it is Christian or Jewish or Moslem—all of those basic religions have
very strong tenets and statements that
homosexuality is wrong and it is immoral—no matter what your religious
belief is, no matter where you are coming from, too bad, that is an irrelevant
decision concerning your employment
practices.
When we are exempting the military
and saying, oh, it does make a difference in the military—and we passed
that; that is now the law of the land—
but now we are going to say for all
other employers, no matter what your
convictions are throughout the country, you are not exempt. I think that is
a serious mistake, a serious mistake.
Granted, nine States have some type
of nondiscrimination based on sexual
orientation laws, nine States. That
means there are 41 States that do not.
I guess a few of those States have done
something by executive order. Senator
KENNEDY is right, those executive orders can be changed, rescinded, or
amended. But why in the world would
we think we have to come in and have
41 States be overridden by the Federal
Government? I think that would be a
serious mistake.
So, Mr. President, I would just urge
our colleagues to think about if school
boards in some places, maybe, again,
Alabama or West Virginia, really find
promiscuous conduct unacceptable, and
such persons engaging in such conduct
not the right type of role models they
would like to have for their young people they would be subject to suit under
ENDA. Let us not leave them subjected
to unbelievable lawsuits. Let us not
have the Federal Government tell them
that, no, they are not right. Let us not
tell organizations such as the Boy
Scouts or others that might have a policy that would be contrary to this legislation, let us not tell them they have
to change it because we have decided
we know better. I think that would be
a serious mistake.
The reason why I mention this tonight is we will have 3 hours of debate
on the defense of marriage bill tomorrow. But we only have 30 minutes on
the legislation dealing with sexual orientation, elevating sexual orientation
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to special status under the Civil Rights
Act. I know my colleague from Massachusetts spoke on this earlier today. I
felt like it was important to speak on
it because tomorrow we only have 30
minutes, 15 minutes equally divided,
for the biggest expansion to the Civil
Rights Act since its inception, and in
my opinion a serious, serious mistake.
So I hope all of our colleagues will look
at it very, very closely before they
vote, and I hope that they will vote no
tomorrow afternoon. I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina, [Mr. HELMS],
is recognized.
Mr. HELMS. I thank the Chair.
First of all, I commend the distinguished assistant majority leader, Mr.
NICKLES. He has made some excellent
points that have floated like a ship
passing in the night by a lot of Senators. I hope Senators who did not hear
him by way of television in their offices will have the Senator’s remarks
called to their attention by their assistants tomorrow morning.
f
THE DEFENSE OF MARRIAGE ACT
Mr. HELMS. Mr. President, during
my years in the Senate I have been
privileged on many occasions to work
with a substantial number of ministers
whose Washington churches today are
referred to as ‘‘African-American.’’
These fine ministers have almost
unanimously supported efforts by myself and Joe Gibbs and others to restore
school prayer to the Nation’s classrooms. They are, in the main, opposed
to abortion. In fact, I do not recall
even one of these ministers ever describing himself or herself as ‘‘prochoice.’’ But that perhaps is neither
here nor there in terms of what I am
here this evening to speak about.
The day before the Senate adjourned
for the August recess, I ran into one of
these fine ministers over in the Russell
Building. His church is Baptist. He has
a booming, cheerful voice. And when I
heard that voice, I knew who it was. He
was saying, ‘‘Are you going home tomorrow?’’ And I told him I thought I
was since the Senate probably would
recess for the month of August.
I asked him, Mr. President, if he had
a message for the folks back home. And
he said, ‘‘I sure do. Tell them that God
created Adam and Eve—not Adam and
Steve.’’
Some may chuckle at this good-natured minister’s humor. But he meant
exactly what he was saying. In fact, it
was a sort of sermonette. The truth is,
he was hitting the nail on the head, if
you want to use that cliche, or telling
it like it is. However one may choose
to describe this minister’s getting
down to the nitty-gritty, it was no
mere cliche, Mr. President. There could
not have been, as a matter of fact, a
better way to begin this debate in favor
of the Defense of Marriage Act, which
is H.R. 3396. The formal debate will
begin tomorrow morning in this Chamber, the U.S. Senate.
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Now then, let there be no mistake
about it, this bill in no way, to any degree, is the kind of legislation which
homosexual and lesbian leaders have
disdainfully described as a, to use their
words, ‘‘hate-driven bill.’’
In fact, it is precisely the critics of
H.R. 3396 who are demanding that homosexuality be considered as just another lifestyle—these are the people
who seek to force their agenda upon
the vast majority of Americans who reject the homosexual lifestyle.
Indeed, Mr. President, the pending
bill—the Defense of Marriage Act—will
safeguard the sacred institutions of
marriage and the family from those
who seek to destroy them and who are
willing to tear apart America’s moral
fabric in the process.
Isn’t it disheartening, Mr. President,
that Congress must clarify the traditional definition of marriage? But inch
by inch, little by little, the homosexual
lobby has chipped away at the moral
stamina of some of America’s courts
and some legislators, in order to create
the shaky ground that exists today
that prompts this legislation being the
subject of debate tomorrow morning in
the U.S. Senate.
Just think, the prospect of a sovereign State’s being compelled to recognize same-sex marriages sanctioned
in another State is incredibly stark. If
Hawaii’s supreme court legalizes samesex marriages in Hawaii, does the full
faith and credit clause of the Constitution compel the other 49 States to recognize the new marriage law within
their jurisdictions? I say no.
Such a suggestion, Mr. President, is a
cockeyed interpretation of the Constitution; and this is one of so many
times that I have wished the late, great
Senator Sam J. Ervin, Jr., were here to
cut it down to size. Homosexuals and
lesbians boast that they are close to realizing their goal—legitimizing their
behavior.
Mr. President, Bill Bennett has
championed the cause of preserving
America’s culture; he contends that we
are already reaping the consequences
of the devaluation of marriage. And he
warns that ‘‘it is exceedingly imprudent to conduct a radical, untested,
and inherently flawed social experiment on an institution that is the keystone and the arch of civilization.’’
Bill Bennett is everlastingly right,
and I believe the American people in
the majority understand that the Defense of Marriage Act is vitally important. It will establish a simple, clear
Federal definition of marriage as the
legal union of one man and one woman,
and it will exempt sovereign States
from being compelled by a half-baked
interpretation of the U.S. Constitution
to
recognize
same-sex
marriages
wrongfully legalized in another State.
If the Senate, tomorrow, makes the
mistake of approving the Employment
Nondiscrimination Act proposed by the
Senator from Massachusetts, it will
pave the way for liberal judges to
threaten the business policies of count-
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less American employers, and, in the
long run, put in question the legality
of the Defense of Marriage Act. The homosexual lobby knows this and that is
why there is such a clamor favoring
adoption of the Kennedy bill.
Mr. President, at the heart of this debate is the moral and spiritual survival
of this Nation. Alexis de Tocqueville
said a century and a half ago that
America had grown great because
America was good. Mr. de Tocqueville
also warned that if America made the
mistake of ceasing to be good, America
would cease to be great.
So, we must confront the question
posed long ago: ‘‘Quo Vadis, America?’’
The Senate is about to answer that
question. We will decide whither goeth
America. It is solely up to us.
f
EMPLOYMENT
NONDISCRIMINATION ACT
Mr. KENNEDY. Mr. President, I addressed the Senate earlier today, but I
just take a very few moments to respond to some of the points that have
been made earlier by those who are opposed to the Employment Nondiscrimination Act.
First of all, on the question of disparate impact and disparate treatment
of individuals, I want to make it clear
again this evening, as we tried to make
it clear earlier in the day—this is an
issue that keeps coming up and I think
it is important that we address—the
Employment Nondiscrimination Act
covers a showing of discrimination
based on disparate treatment, not disparate impact. That means the person
must do the following, first, prove that
he or she is covered by ENDA.
Second, a person must show that he
or she was qualified for the employment opportunity at issue and that the
employer’s adverse treatment was
based on the person’s sexual orientation.
Third, the employer must then
present evidence to show that the adverse treatment was taken because of
some legitimate nondiscriminatory
reason, not sexual orientation, and
then the individual making the claim
bears the ultimate burden of proving
that discrimination based on sexual
orientation actually occurred.
Now,
the
Employment
Nondiscrimination Act is not violated
merely because an employment practice has a disparate impact on gay men
and lesbian women. Therefore, statistics are not needed to enforce the Employment Nondiscrimination Act and
employers are not required to ask
whether an employee is gay. Despite
this provision in the Employment Nondiscrimination Act, my colleagues are
concerned that the Equal Employment
Opportunity Commission will require
employers to keep statistics regarding
the sexual orientation of their employees.
The Employment Nondiscrimination
Act grants the EEOC the same enforcement powers that it has under title
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September 9, 1996
VII. This enforcement structure parallels the ADA—under which employers
do not have to ask if an employee has
a disability or keep statistics—and the
EEOC says that it will undoubtedly enforce ENDA in the same way that it enforces the ADA. Therefore, there will
not be any additional reporting requirements.
Finally, the EEOC says that because
ENDA does not recognize a cause of action for disparate impact discrimination, there are no requirements pursuant to the Uniform Guidelines on Employee Selection. That has been an
issue that has been brought up several
times and raised again this evening. I
hope I have responded to any of the
concerns that people have on this
issue, and I have included information
from the EEOC in the record earlier
today.
Second, Mr. President, this legislation is not a license for bizarre behavior—we heard that referenced earlier
this evening. Like other civil rights
laws, the Employment Nondiscrimination Act does not protect bizarre behavior. Employers can still enforce
workplace rules as long as they apply
them uniformly to heterosexuals and
homosexuals. This legislation allows
employers to discipline homosexuals
and heterosexuals whose behavior is illegal or unsafe or that compromises
their ability to perform their job—the
examples given earlier this evening
would clearly fall under those standards. These policies must simply be applied to all employees—heterosexual
and homosexual.
For example, my colleagues expressed concern about dress conveying
explicit sexual messages or that is otherwise inappropriate. There is no need
for concern. An employer can enforce a
dress code. It must simply apply to all
employees. An employer may also enforce a code of conduct. School systems
can discipline teachers who appear in
pornographic movies or other kinds of
activities, but they must discipline
both homosexuals and heterosexuals
similarly.
That is all we are looking for, similar
treatment. Employers can establish
codes of conduct. All they have to do is
make sure that they apply to both
groups.
I say to my colleagues who feel they
do not understand this legislation, the
Employment Nondiscrimination Act is
not a license to illegal behavior. It is
legislation that allows homosexuals
and heterosexuals to work without
being the subject of discrimination.
Once again, the legislation simply says
that employees, whether heterosexual
or homosexual, must be treated fairly
and equally.
Finally, there is some question about
where all of this would lead. I think we
can look to the nine States that have
laws at the present time. They can be
the best answers to many of the questions posed by those opposed to the
bill. We know, that these laws are not,
and they have not been problematic. I
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