Don Nickles

Mr. NICKLES

Mr. NICKLES. Mr. President, I move to reconsider the vote.

Mr. NICKLES. Mr. President, today the State of Hawaii's court is considering a case that would legalize same-sex marriage. This bill does not ban same-sex marriage, it just says that any State does not have to recognize a marriage performed in a State that does legalize same-sex marriage either through the courts or through legislation. I think this is a positive bill. Senator Byrd spoke eloquently on it. In addition to that, this bill defines marriage as a legal union between male and female. It is almost absurd or unheard of to think we would have to do that. A lot of people, a lot of gay activists are requiring that we do that. Mr. President, I urge our colleagues to support this legislation. It is constitutional. We do have opinions from the Attorney General and others in the Justice Department saying that it is constitutional. I urge my colleagues to support this important piece of legislation today.

Mr. NICKLES

Mr. NICKLES. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. NICKLES. If the Senator yields back his time, I ask for the yeas and nays.

Mr. NICKLES. Mr. President, we are about to vote on final passage of S. 2056, the Employment Nondiscrimination Act. I urge each Senator to vote ``no.'' Before we vote, I want to address a few issues that have come up during debate. Time does not, of course, allow me to go into these issues in detail. I urge each Senator to consider the moral implications of this vote. In her recent, acclaimed book, ``The De-Moralization of Society,'' Gertrude Himmelfarb reminded us of a truth that needs to be repeated here: Individuals, families, churches, and communities cannot operate in isolation, [they] cannot long maintain values at odds with those legitimated by the state and popularized by the culture. * * * Values, even traditional values, require legitimation. At the very least, they require not to be illegitimated. And in a secular society, legitimation or illegitimation is in the hands of the dominant culture, the state, and the courts. This bill goes to the heart of traditional values--the values of religious liberty, free association, and traditional sexual morality. ENDA is solicitous of religious organizations, Mr. President, but what about religious individuals? This bill concedes that it is going to compel an approval of homosexual and bisexual behavior--that is why religious organizations are exempted from the bill--but what about religious individuals? ENDA will punish those Americans who believe it is important to apply their moral views in the workplace. To millions of Americans, human sexuality is still a matter of the deepest moral concern, but ENDA says to them that in the workplace they cannot make distinctions based on sexual orientation, no matter how compelling. Mr. President, I have heard it said on this floor that ENDA is necessary to guarantee to homosexuals and bisexuals the equal protection of the laws. That is not true. The Constitution of the United States guarantees to every person the equal protection of the laws. Our colleagues know, for example, that under Federal employment laws as now written every heterosexual, homosexual, or bisexual person is treated equally. Of course, Federal law does not prohibit discrimination on the basis of sexual orientation, so Government bureaucrats cannot forbid or require a particular result if ``sexual orientation'' should become an issue in the workplace, but each person has identical rights, whatever his or her sexual orientation. I believe that ENDA is going to mean quotas. The sponsors don't think so, and they point to Section 7 of the bill that says that an employer shall not give preferential treatment or establish a quota based on sexual orientation. Of course, there were many people who thought that the Civil Rights Act of 1964 also prohibited quotas and preferential treatment. History has shown that view to be naive. Today, quotas and preferential treatment are a red-hot issue all across the country--but they are opposed by the vast, vast majority of the American people. I would remind Senators that ENDA gives to the EEOC--in Sec. 11(a)(1)--the Attorney General--in Sec. 11(a)(4)--and the Federal courts--in Sec. 11(a)(5)--the same powers they have with respect to race and sex discrimination under current law--see Sec. 11(b). All of the powers of the EEOC and the courts will be brought to bear against the employer who believes that sexual orientation cannot be ignored in his workplace. There are a hundred traps for every covered employer. For example, if ENDA is enacted 42 U.S.C. 2000e-2(m) will make it an ``an unlawful employment practice'' if sexual orientation `'was a motivating factor for any employment practice, even though other factors also motivated the practice.'' Mr. President, ENDA is a power grab, and it is exactly the kind of inside-the-Beltway power grab that Americans have come to resent. ENDA threatens to make sexuality an issue where it has never been an issue before. Currently, most employers don't know about their employees' sexual orientation and don't care. ENDA will help put an end to that. Some employers do care, and ENDA will put an end to that, too. ENDA is about sexuality, but it is not about privacy. ENDA is about going public. Mr. President, I have heard it said on this floor that 80 percent of the American people support this bill. This is not true. The claim seems to be based on a poll taken by Newsweek magazine: In that poll, conducted in May of this year, 84 percent of the Newsweek respondents did say there should be ``equal rights for gays in terms of job opportunities''--but that doesn't mean 84 percent of Americans want a new Federal mandate. In fact, that very same poll shows that they don't. When asked about the effort the country has already made ``to protect the rights of gays and lesbians,'' 26 percent said the country had made the right amount of effort, 27 percent said more effort is needed, but 40 percent said the effort had gone too far. When asked specifically if there should be ``special legislation to guarantee equal rights for gays,'' 41 percent agreed that there should be such legislation but 52 percent said there should not be such legislation. In sum, Americans favor fairness but they oppose the heavy hand of government which is what ENDA represents. Mr. President, ENDA equates homosexuality and bisexuality with heterosexuality, but the American people have never regarded homosexuality or bisexuality as the moral or legal equivalent of heterosexuality, whether in the workplace or not. ENDA for bids discrimination ``on the basis of sexual orientation'' which it defines to mean ``homosexuality, bisexuality, or heterosexuality, whether such orientation is real or perceived.'' Frankly, no one knows what those words mean or how they will be applied in many real-life situations. There is much more that ought to be said, Mr. President, but let me conclude with this. Just 3 years ago yesterday, the Senate voted 63 to 33 for a compromise policy on homosexuals in the military. With that vote and later votes and the President's signature, the laws of the United States states that homosexuality was relevant to service in the Armed Forces of the United States, and that open homosexuality was disqualifying. Today, we will vote on ENDA, a bill that will tell every employer in America that homosexuality and bisexuality must at all times and in all workplaces be irrelevant. Can the Senate truly believe that homosexuality can be relevant in the military services but must be irrelevant in the thousands of private workplaces that will be covered by ENDA? The Congress and the President have told the Pentagon that homosexuality is contrary to good order and discipline--is it now going to tell every private employer in America that, regardless of his or her own moral judgment, homosexuality and bisexuality are just another orientation that Congress has decreed to be irrelevant? Mr. President, are we prepared to levy fines on a school district that uses a policy that looks very much like the military's ``don't ask, don't tell''? Are we prepared to force the American people into a policy that holds sexual orientation irrelevant in every workplace except the church and the military? What are we going to say to the small business owner who wants to know why he, a private citizen with strong moral views, doesn't have at least as much freedom to choose employees as a Navy recruiter? ENDA is a radical step, and it is a step in the wrong direction. It should be defeated. Mr. President, I ask unanimous consent several letters urging opposition to this bill be printed in the Record.

Mr. NICKLES. Mr. President, let me just check and see if the majority leader wants to make a speech on his time. In the meantime, unless the Senator from Massachusetts wants to speak, I suggest the absence of a quorum.

Mr. NICKLES. Mr. President, I rise in opposition to Senator Kennedy's bill, and I urge my colleagues to do the same. Senator Kennedy's bill before us elevates sexual orientation to special status under the Civil Rights Act. It grants Government approval, acceptance, and protection to homosexual and bisexual behavior under the Civil Rights Act. Sexual orientation, as defined under the bill proposed by Senator Kennedy, includes homosexuality, bisexuality, and heterosexuality. It does not just apply to people in a monogamous relationship. Basically, any of the above sexual behaviors are going to be protected by the Federal Government. Such behavior must be OK, because Uncle Sam is now going to protect it. Senator Byrd made an eloquent speech earlier today, and he read from the Bible. He quoted a couple verses in Genesis talking about what God said about marriage. Many people believe the Bible and believe in it very strongly. Maybe that is recognized by the authors of ENDA, because they exempted religious organizations, but they did not exempt religious people. We exempt churches under the bill. Well, a lot of people consider themselves part of a church 7 days a week, and they have very serious problems with granting special status to people based on their sexual orientation because they are learning, whether they are Jewish or whether they are Christian or whether they are Muslim, that homosexuality is wrong, it is immoral and should not be condoned and certainly should not be elevated to a special protected status by the Federal Government. Does that mean that you want to discriminate? No. But should homosexuals and bisexuals have special protected status? Most people would say no. Mr. President, nine States have something in their statutes, in their State codes, that provide some protections for sexual orientation; 41 States do not. The State of Massachusetts does. The State of Oklahoma does not. I do not really want the State of Massachusetts putting their mandate on my State. Maybe our norms are a little different. The sponsor of ENDA did exempt religious organizations. They did not exempt schools. There is a high school principal in West Virginia who was recently caught cross-dressing, and he was arrested for soliciting. That was against the law. That was against the State's prostitution laws. What if he was just cross-dressing? He would be protected under ENDA. Cross-dressing could be considered part of a sexual orientation. What about a schoolteacher who is found to be in homosexual videos-- Senator Hatch mentioned one example--what if somebody was particularly well known as a gay activist? What if the school board said, ``We really don't want this person to be teaching our kids physical education in the fifth grade.'' The school board might say, ``That is not the type of mentor, teacher or role model that we would like to have for our young people.'' They can be sued, under this legislation, not only for compensatory damages, but for punitive damages. Some of us have stated the net result of this bill is going to require employers to ask questions about sexual orientation. That has been denied by the proponents. But the facts are, if you are sued, if someone sues you and says, ``Mr. Employer, you didn't hire me because of my sexual orientation, the fact I am well known as a gay, the employer might say, I didn't know that.'' But they can still sue. How are employers to protect themselves? They are going to have to ask a lot of questions. One way of protecting yourself is to tell the court or convince the court that you have hired homosexuals in the past. How do you find that out? Well, you better ask questions. You will have to ask questions and have to survey all your employees. We have never done that before. But the net result of this legislation is that employers would have to ask an employee to at least be able to defend himself. And they would have to ask what their sexual orientation is. That may not be well received by the employees, and it may not be well received by their employers because now you really have the intrusive arm of the Federal Government going into areas they should not. The sponsors of ENDA have exemptions for religious organizations that are not-for-profit. What about a religious broadcaster? What about a religious book store? Bingo, we are going to tell them, we do not care what your belief is, you are going to have to hire somebody that maybe is diametrically opposed to your fundamental beliefs. Three years ago, we passed legislation that said we rejected President Clinton's call for gays in the military--Congress did--with an overwhelming vote. Three years ago today, we adopted a policy that says, ``Don't ask, don't tell.'' We are going to tell the school boards that such a policy is not good enough, because this legislation goes way beyond ``don't ask, don't tell,'' way beyond ``don't ask, don't tell.'' So that is what Congress said was acceptable for the military. Congress said, sexual orientation is relevant concerning the military, but now, if ENDA becomes law, we are going to tell millions of employers, oh, sexual orientation is irrelevant; it does not make any difference; we do not care what your personal beliefs are, we do not care what your religious beliefs are, it is irrelevant. For some people it is relevant, and for some school boards it might be relevant, or for some religious people or some religious groups or religious broadcasters it is very, very relevant. Mr. President, this legislation is a serious mistake and goes way too far. I urge my colleagues to vote no.

Mr. NICKLES. How much time remains on both sides?

Mr. NICKLES. Mr. President, I yield the Senator from Utah 4 minutes.

Mr. NICKLES. Mr. President, I ask for the yeas and nays.

Mr. NICKLES. I yield the Senator from Indiana 4 minutes.

Mr. NICKLES. Mr. President, I yield to the Senator from Kansas 3 minutes.

Mr. NICKLES

Mr. NICKLES. I yield the Senator from Kansas 5 minutes.

Mr. NICKLES. Mr. President, how much time remains?

Mr. NICKLES. Mr. President, I compliment the Senator from Indiana for his excellent speech, and I will yield the Senator from South Carolina 3 minutes.

Mr. NICKLES. I yield the Senator an additional minute.

Mr. NICKLES. I yield 6 minutes to the Senator from Indiana.

Mr. NICKLES. I appreciate the correction, because I wasn't aware of that fact.

Mr. NICKLES. Mr. President, I am not positive if I heard my colleague from California correctly, but if you mentioned the sponsor of the bill has been married three times, I am the sponsor of the bill, and I haven't been married three times.

Mr. NICKLES. Mr. President, I wish to thank Senator Byrd for that statement and also for cosponsoring this legislation, and for the outstanding research that he did, putting it in a historical perspective, as well. I think his statement was very well made and I very much appreciate his assistance in passing this legislation today.

Mr. NICKLES. Madam President, I yield myself such time as necessary. I am pleased today to bring before the Senate the Defense of Marriage Act, along with Senator Byrd and I think 30 cosponsors. We have introduced a measure which I believe is simple, it is limited in scope, and it is based on common sense. It shares broad bipartisan support, including that of President Clinton. The bill does but two things: First, the bill restates the current and long-established understanding that marriage means a legal union between one man and one women as husband and wife. The act also defines spouse as a person of the opposite sex who is a husband or a wife. These definitions apply only to Federal law. Second, the bill says that no State shall be required to give effect to a second State's acts, records, or judgments respecting a relationship between persons of the same sex that is treated as a marriage under the laws of that second State. There is nothing earth-shattering here. No breaking of new ground. No setting of new precedents. Indeed, there provisions simply reaffirm what is already known, what is already in place. The definitions of S. 1999 are based on common understanding rooted in our Nation's history, our statutes, and our case law. They merely reaffirm what Americans have meant for 200 years when using the words marriage and spouse. The current U.S. Code does not contain a definition of marriage, presumable because most Americans know what it means and never imagined challenges such as those we are facing today. As mentioned earlier, the act's definitions apply to Federal law only. The act does not--let me repeat--does not intrude on the ability of the States to define marriage as they choose. To the contrary, this bill protects the right of States to define marriage for themselves. This way, each State will be able to decide for itself the type of marriage it will sanction. The Defense of Marriage Act invokes Congress' constitutional authority, under article IV, section 1, to prescribe the effect that shall be given to the public acts, records, and judicial proceedings of the various states with regard to the full faith and credit clause. As my colleagues know, in May 1993 the Hawaii Supreme Court rendered a preliminary ruling in favor of three same-sex couples who applied for marriage licenses. The court said the State's marriage law discriminated against the plaintiffs in violation of the equal-rights provision of the State Constitution. The case was remanded to the lower courts for a trial, to see if the State could show a compelling state interest to justify the marriage law. That trial is starting today in Hawaii. It has become clear that advocates of same-sex unions intend to win the lawsuit in Hawaii and then invoke the full faith and credit clause to force the other 49 states to accept same-sex unions. Many States are justifiably concerned that Hawaii's recognition of same-sex unions will compromise their own laws prohibiting such marriages. Legislators in over 30 States have introduced bills to deny recognition to same-sex unions. Fifteen States already have approved such laws, and many other states are now grappling with the issue- including Hawaii, where legislative leaders are fighting to block their own courts from sanctioning such marriages. This bill would address this issue head-on, and it would allow each State to make the final determination for itself. It seems to me that the strategy of those who are advocating same-sex unions is profoundly undemocratic. I cannot envision a more appropriate time for invoking our constitutional authority to define the nature of States' obligations to one another. As State Representative Terrance Tom from Hawaii testified before a House subcommittee: If inaction by the Congress runs the risk that a single judge in Hawaii may redefine the scope of legislation throughout the other 49 States, [then] failure to act is a dereliction of the responsibilities [Congress was] invested with by the voters. Another reason this bill is needed now concerns Federal benefits. The Federal Government extends benefits, rights, and privileges to persons who are married, and generally it accepts a State's definition of marriage. This bill will help the Federal Government defend the traditional and commonsense definitions of the American people. Otherwise, if Hawaii, or any other State, gives new meaning to the words ``marriage'' and ``spouse,'' reverberations may be felt throughout the Federal Code. The provisions of Federal law do not, of course, regulate only the activities of the Federal Government. Federal law also regulates private persons. Consider the implication of the Family and Medical Leave Act of 1993. Shortly before passage of the act in the Senate, I attached an amendment that defines ``spouse'' as ``a husband or wife, as the case may be.'' When the Secretary of Labor published his proposed regulations, a considerable number of comments were received urging that the definition of ``spouse'' be broadened to include domestic partners in committed relationships, including same-sex relationships. However, when the Secretary issued the final rules, he stated that the statutory definition of ``spouse'' and the legislative history of the act precluded such broadening of the definition. That small amendment, unanimously adopted, spared a lot of costly and unnecessary litigation, and it spared Congress the shock it would have received from the American people if we had allowed the word ``spouse'' to mean something it had never meant before. As my colleagues know, the White House has said that the President will sign this bill if ``presented to him as currently written.'' The U.S. Department of Justice says that it expects the bill will ``be sustained as constitutional if challenged in court.'' Enactment of this bill will allow States to give full and fair consideration of how they wish to address the issue of same-sex marriages instead of rushing to legislate because of fear that another State's laws may be imposed upon them. It will also eliminate legal uncertainty concerning Federal benefits and make it clear what is meant when the words ``marriage'' and ``spouse'' are used in the Federal Code. This effort reaffirms current practice and current policy. The fact that some may even consider this legislation controversial should make the average American stop and take stock of where we are as a country and where we want to go. This legislation is important. It is about defense of marriage as an institution and as the backbone of the American family. I urge my colleagues to join with myself, Senator Byrd, and the other cosponsors in support of the Defense of Marriage Act. Madam President, one final comment. Some people have stated incorrectly that this bill would ban same-sex marriages. They are incorrect. This bill does not ban same-sex marriages. It says one State doesn't have to recognize another State should they legalize same-sex marriages. Big difference; a big difference. If one State wishes to legalize same-sex marriages, say, the State of Maryland, Massachusetts or any other State, they can certainly do so, and this legislation would not prohibit it. What this legislation would do is say they would not have to recognize same-sex marriages if some other State should enact it. I think it is an important distinction. Also, it says for Federal benefits and Federal benefits purposes, we define marriage as legal union between male and female, and we define spouse as a member of the opposite sex. It is very simple, very plain common sense. It should become law. I am pleased the House of Representatives passed it by a 5-to-1 margin, bipartisan support in the House of Representatives. I likewise hope later this afternoon our Senate colleagues will pass it with an overwhelming margin as well. I yield the floor. Ms. MOSELEY-BRAUN addressed the Chair.

Mr. NICKLES. I yield 5 minutes to the Senator from Missouri.

Mr. NICKLES. I ask unanimous consent both sides have an additional 2 minutes.

Mr. NICKLES. Madam President, I ask unanimous consent for an additional 2 minutes and recognize the Senator from Missouri for 5 minutes.

Mr. NICKLES

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 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 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.