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1 September 13, 2012 the Honorable Mark Begich Chair, Senate WASHINGTON LEGISLATIVE OFFICE September 13, 2012 The Honorable Mark Begich Chair, Senate Democratic Steering and Outreach Committee U.S. Senate Washington, D.C. 20510-7050 Dear Chairman Begich, RE: LGBT Legislative Priorities of the American Civil Liberties Union (ACLU) AMERICAN CIVIL LIBERTIES UNION WASHINGTON On behalf of the American Civil Liberties Union (ACLU), a non-partisan LEGISLATIVE OFFICE 915 15th STREET, NW, 6TH FL organization with more than half a million members, countless additional WASHINGTON, DC 20005 activists and supporters, and fifty-three affiliates nationwide, I am pleased to T/202.544.1681 F/202.546.0738 share our views on the federal legislative issues of unique importance to the WWW.ACLU.ORG lesbian, gay, bisexual, and transgender (LGBT) community. The ACLU has LAURA W. MURPHY DIRECTOR long worked – dating back to the 1930s – for an America that is free of discrimination based on sexual orientation and gender identity, and where NATIONAL OFFICE 125 BROAD STREET, 18TH FL. LGBT people can live openly, with respect for their identities, relationships, NEW YORK, NY 10004-2400 T/212.549.2500 and families, and where there is equal treatment under the law. OFFICERS AND DIRECTORS SUSAN N. HERMAN Using Religion to Discriminate Against Lesbian and Gay Service PRESIDENT Members ANTHONY D. ROMERO EXECUTIVE DIRECTOR First, in what remains of the 112th Congress, one of the most important ROBERT REMAR requests of Senate Democrats is to ensure that two anti-gay provisions TREASURER included in the House-passed FY 2013 National Defense Authorization Act (NDAA) (H.R. 4310) are not included in the final version of this legislation that will be sent to President Obama for his signature later this year. These two provisions – Sections 536 and 537 respectively – would undermine the repeal of “Don’t Ask, Don’t Tell” and compromise open service for lesbian, gay, and bisexual service members. The White House opposes both of these measures. Section 536, which is based on the so-called “Military Religious Freedom Protection Act” (H.R. 3828) and was offered as an amendment during markup in the House Armed Services Committee by Rep. Todd Akin (R- MO), could function as a dangerous license to use religion as a cover for discrimination against lesbian, gay, and bisexual service members, by stating that the beliefs of members of the Armed Forces “concerning the appropriate and inappropriate expression of human sexuality” must be accommodated 1 and shall not be the “basis for any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.” This language – a solution in search of a problem – could encourage the creation of personal, social, and institutional barriers which would make the military a hostile environment for the very people who only recently won a measure of equality. It would also make it very difficult for commanders to remove such barriers when they do arise. Section 537 would prohibit Defense Department facilities from being used for private marriage or “marriage-like” ceremonies for same-sex couples, even where state law permits such marriages. This provision ignores the fact that these facilities are already available for use by service members for a range of religious functions and ceremonies, including weddings, funerals, baptisms, confirmations, and other events. To deny them to gay and lesbian service members – even in those states where same-sex couples enjoy the freedom to marry – based on nothing more than the sexual orientation of those wishing to make use of the facilities is discriminatory. The White House expressed its strong opposition to both of these provisions in its Statement of Administration Policy on the House NDAA, writing that Section 536 would “prohibit all personnel-related actions based on certain religious and moral beliefs, which, in its overbroad terms, is potentially harmful to good order and discipline,”1 and that Section 537 would “inhibit the ability of same-sex couples to marry or enter a recognized relationship under State law” and “would obligate DOD to deny Service members, retirees, and their family members access to facilities for religious ceremonies on the basis of sexual orientation, a troublesome and potentially unconstitutional limitation on religious liberty.”2 Moving LGBT Equality Under the Law Forward – SNDA, ENDA and Respect for Marriage The ACLU has been a longtime champion of three affirmative pieces of legislation – the Student Non-Discrimination Act (S. 555), the Employment Non-Discrimination Act (S. 811), and the Respect for Marriage Act (S. 598) – which would, if enacted, represent tremendous strides forward for LGBT equality under the law. All are long overdue and we would like to see continued movement on each of these measures in the near future. Of note, each has been endorsed by the Obama administration. 1 Office of Mgmt. & Budget, Exec. Office of the President, Statement of Administration Policy on H.R. 4310— National Defense Authorization Act for FY 2013 (May 15, 2012), http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr4310r_20120515.pdf. 2 Id. 2 The Student Non-Discrimination Act (SNDA), sponsored by Senator Al Franken (D-MN), currently has the co-sponsorship support of 39 Democratic Senators and its House companion bill has nearly 170 co-sponsors, including every member of the House Democratic leadership team. Modeled on Title IX of the Education Amendments of 1972, SNDA would have a profound impact in improving the lives of LGBT students in the U.S. by ensuring that discrimination and harassment of students on the basis of their sexual orientation or gender identity has no place in our nation’s public elementary and secondary schools. It would do so in a way that both preserves the right of all students to speak freely and the right of all students to benefit equally from a public education. Due to the tremendous support for this legislation among Democrats in both the House and Senate, we would like to see a Senate floor vote on SNDA in the 113th Congress. In June, the Senate HELP Committee, chaired by Senator Tom Harkin (D-IA), held a critical hearing on the Employment Non-Discrimination Act (ENDA), sponsored by Senator Jeff Merkley (D-OR), and the serious issue of workplace discrimination against LGBT Americans. We were particularly pleased that this hearing included testimony from the first openly transgender individual to ever appear before a Senate committee. The ACLU has long supported ENDA because, by prohibiting employment discrimination based on sexual orientation and gender identity in most American workplaces, the legislation will allow American workers who stand side-by-side at the workplace and contribute with equal measure in their jobs to also stand on the same equal footing under the law. While we remain firm in our commitment to work for passage of ENDA, we also think, in light of recent legal and political developments, that several strengthening modifications to the bill are needed. These include a narrowing of the overly broad religious exemption (Section 6), which would provide religious organizations a blanket exemption from ENDA, as well as elimination of language that would allow employers in states where same-sex couples can legally marry to treat married gay and lesbian employees as unmarried for purposes of employee benefits by relying on the discriminatory Defense of Marriage Act (DOMA) definition (Section 8(c)). Finally, we commend the Senate Judiciary Committee and Chairman Patrick Leahy (D-VT) for holding a favorable markup of the Respect for Marriage Act in November 2011. This marked the first time since DOMA was enacted in 1996 that a congressional committee took the step of voting to repeal the law. The upcoming Supreme Court term may very well include a challenge to the constitutionality of DOMA. It is even possible the Court will agree to hear a challenge brought by the ACLU on behalf of Edith “Edie” Windsor, whose marriage to her late partner of 44 years was unrecognized by the federal government. However, Congress need not and should not wait for a final ruling from the Supreme Court before acting to repeal this law. The Respect for Marriage Act, which was endorsed for the first time in the 2012 Democratic National Platform and is sponsored by Senator Dianne Feinstein (D-CA), would, in addition to fully repealing DOMA, ensure married gay and lesbian couples that, regardless of where they travel or move in the country, they will not be treated as legal strangers under federal law. 3 We thank the Senate Democratic Steering and Outreach Committee for the opportunity to share our views on these federal legislative issues of unique importance to the LGBT community. For follow-up questions, please contact ACLU Legislative Representative Ian Thompson at (202) 715-0837 or [email protected]. Sincerely, Susan Herman President, American Civil Liberties Union Cc: Senate Democratic Caucus 4 .
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