Norton Opening Statement for OGR Markup of Resolution to Overturn D.C. Anti-Discrimination Bill

WASHINGTON, D.C.—The office of Congresswoman Eleanor Holmes Norton (D-DC) released Norton's prepared opening statement for the House Oversight and Government Reform Committee (OGR) markup of a disapproval resolution to overturn the District of Columbia's Reproductive Health Non-Discrimination Act.

Norton's statement as prepared for delivery follows:

Opening Statement
Congresswoman Eleanor Holmes Norton

Committee on Oversight & Government Reform

Business Meeting:
H.J. Res. 43: Disapproving the action of the District of Columbia Council in approving the Reproductive Health Non-Discrimination Amendment Act of 2014

April 21, 2015

I can see why the Majority has scheduled this markup at the unusual hour of 5 p.m. There is not pride to be taken in what the committee is doing today. I should not have to state the obvious. The District of Columbia was granted authority to govern itself in the Home Rule Act of 1973, and I am the only member of this committee elected by and accountable to the residents of the District of Columbia. I will vote in committee today, but if this bill goes to the floor, I will not be able to vote on it, but every Member of the committee and of Congress will.

A member from Tennessee, Diane Black, who is not even on this committee, introduced this resolution to disapprove a lawful and constitutional law of a jurisdiction that has no way to hold her accountable. Similarly, a chairman from Utah is using the outsized weight of federal jurisdiction to overturn a local law in contradiction to federalist local control principles that otherwise are the mantra of the Majority. The D.C. law being questioned was transmitted to Congress on March 6, in time for a hearing. Yet, the District of Columbia Mayor and Council chair have been denied even the opportunity to defend their bill.

This markup makes no pretense at fairness. The reason for Republicans' action today boils down to their political disagreement with the District's local law, their willingness to override their own local control principles, and above all, their subservience to the interest groups that are the prime movers for today's markup. My Republican colleagues will cite freedom of religion, which in this case would mean the freedom of any employer in the District of Columbia to discriminate against any employee because of the personal, constitutionally protected reproductive choices she makes in her private capacity even though she is ready and willing to carry out her employer's policies and practices on the job, whatever they are. This is not freedom of religion. It is the freedom to discriminate. Fortunately our federal courts have never allowed employers to use their personal religious objections to hiring or firing employees, or there would be nothing left to the nation's anti-discrimination laws.

Under numerous Supreme Court decisions, the D.C. law complies with the First Amendment because it is a neutral bill of general applicability, that is, a bill that does not target religion. As the Supreme Court held, in Employment Div., Oregon Dep't of Human Resources v. Smith, the Free Exercise Clause never "relieve[s] an individual of the obligation to comply with a valid and neutral law of general applicability."

The D.C. law also complies with the Religious Freedom Restoration Act (RFRA), which provides a higher standard of review than the First Amendment. Under RFRA, a law must serve a compelling governmental interest in the least restrictive means possible. The D.C. law serves the compelling governmental interest of protecting women and men from workplace discrimination, and the courts have held that non-discrimination measures are the least restrictive means to eradicate discrimination. However, if this disapproval resolution is enacted into law, employers will be able to impose their religious preferences by discriminating against employees for a multitude of reasons, for example, for having an abortion due to rape or incest, or becoming pregnant while unmarried.

The need for a religious exception has been cited. The D.C. law is subject to the so-called constitutional ministerial exception for religious organizations to employment discrimination laws, to a federal statutory exception for religious organizations under federal employment discrimination law, and to a statutory exception for religious and political organizations under D.C.'s employment discrimination law. In 2012, the Supreme Court, in Hosanna-Tabor Evangelical Church and School v. EEOC, for the first held that the First Amendment provides a ministerial exemption for religious organizations to employment discrimination laws. The exception permits a religious organization to hire or fire a minister or ministerial employee for any reason whatsoever. While the court did not define who is a minister, the court held the exception permitted a religiously affiliated school to fire a spiritual teacher.

D.C.'s employment discrimination law, the Human Right Act, also contains a statutory exception for religious and political organizations that is patterned after the exception in Title 7 of the Civil Rights Act of 1964, which I administered as chair of the EEOC, that grant religious organizations the ability to consider religion in employment decisions. Such an exemption allows the religious organization to hire individuals who share the same religion as the employer. The statutory exception in D.C.'s Human Rights Act appears to go even further than the 1964 Civil Rights Act to expressly exempt both religious and political organizations from employment discrimination laws. The D.C. exemption says that nothing in the act shall prohibit "religious and political organizations from limiting employment, or admission to or giving preference to persons of the same religion or political persuasion as is calculated by the organization to promote the religious or political principles for which it is established or maintained."

The federal courts have been vigilant to contain religious objection because our constitution must accommodate other rights simultaneously, including the right to be free from discrimination and the right to privacy. There is already an exception for interests groups based on their belief or religion. What the Majority wants is an exception to hire and fire based on private conduct and personal conduct off the job at that.

In America today, there has been growing angst about the loss of privacy following the NSA controversy. I wager that the only intrusion Americans fear today almost as much as government intrusions would be life or death control over one's livelihood based on private reproductive conduct. Until today's resolution, most thought that at least their private reproductive health decisions were for them alone.

D.C. is not alone in our fight to protect home rule, workplace equality, and an employee's private reproductive decision. I ask unanimous consent to place into the record a letter signed by 50 national and local groups calling on Congress to reject this disapproval resolution and a letter from 20 religious and interfaith groups opposing the resolution.

Thank you, Mr. Chairman, and I yield back.