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Floor Speech

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Mr. LANKFORD. Madam President, on behalf of Senator Rubio, I call up amendment No. 6493 and ask that it be reported by number.

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Mr. LANKFORD. I would like to also call up amendment No. 6496 and ask that it also be reported by number.

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Mr. LANKFORD. Madam President, in 2015, after the Obergefell decision came down from the Supreme Court, putting same-sex marriage as the law of the land, President Obama made a statement to the country. He came and spoke to the country when there was a lot of heat and a lot of emotion going on around the country around that particular decision. He was supportive of the Obergefell decision, but he made this statement. At that time, President Obama said:

I know that Americans of goodwill continue to hold a wide range of views on this issue. Opposition in some cases has been based on sincere and deeply held [religious] beliefs. All of us who welcome today's news should be mindful of that fact; recognize different viewpoints; revere our deep commitment to religious freedom.

That is a wise statement from President Obama during that time period to be able to say: There are going to be a lot of views. We as Americans need to have a wide set of conversations about same-sex marriage and about how we revere marriage in general. There are different religious views, different perspectives.

Now we are approaching a bill that will be voted on in just about 2 hours. This bill has a section in it dealing with marriage, and it says it has certain religious protections in it.

As I read the bill initially to be able to check the religious protections that are in it, I was surprised at some things that were in it, and I was surprised at some of the things that were left out. So our team went to work writing an amendment to address the specific issues in this bill. We narrowly tailored this bill for our amendment, and we addressed it. Why? Because we were the only ones who thought there was a problem? Actually, no, we weren't the only ones who saw this bill as a problem dealing with religious liberty. In fact, religious liberty groups all over the country and religious institutions started contacting our office and putting out their own statements in opposition to this bill, saying the bill as currently written, even with the ``religious protections'' in it, does not actually protect the religious liberty of all Americans.

This is just a short list of groups who are in strong opposition to this bill: the Alliance Defending Freedom, the American Association of Christians Schools, CatholicVote, the Center for Urban Renewal and Education, the Centennial Institute, the Christian Employers Alliance, Concerned Women for America, Eagle Forum, the Ethics and Public Policy Center, the Ethics and Religious Liberty Commission, the Faith and Freedom Coalition, the Family Research Council, the Family Policy Alliance, Focus on the Family, Heritage Foundation, Liberty Counsel, Lifeline Children's Services, the National Religious Broadcasters, the Religious Freedom Institute, the U.S. Conference of Catholic Bishops, Samaritan's Purse. The list goes on and on and on of organizations and entities that read through this bill and said there are major concerns with the religious liberty portions of this bill.

Now, I am well aware that there are also groups who have put out a statement and said that they are comfortable with it, that it would protect them, but other organizations are putting out statements and saying: Yeah, that is nice for you, but it actually wouldn't protect us and our members.

There are three major concerns that are in the bill itself under the issue of religious liberty, and if these three things are not changed in this bill, it will put the issue of religious liberty at great risk for millions of Americans who, as President Obama said, hold sincerely held beliefs that are different.

The first is this: There is a section in the very beginning of the bill where it says any entity that is acting under the color of State law, and then it puts all the restrictions there on them. That is a broadening, actually, of what Obergefell actually did. This says any entity, actually, or individual who is acting under color of state law. What does that mean? Most people don't live in that legal kind of counsel. Well, this would be an entity that a State actually hires to fulfill something for them on behalf of the State.

Let me give you a for-instance on this. A private prison may be one of those examples, but it could also be adoption agencies, foster care agencies. It could be an entity that actually does housing for immigrant and migrant families. It could be a homeless shelter that is contracted by the State to be able to provide services. It could be any number of entities. Many of these entities are actually done by religious organizations that the State actually contracts with them to be able to do those services. In this new statute, if this passes in 2 hours, there would be a new restriction on those religious entities that formally held contracts that then would very well be pushed out from providing those services.

Let me remind you, our Nation functions under not just government operations but cooperation with families and with faith-based entities and nonprofit entities around the country. Our safety net, I talk about often--our first safety net is the families, the second safety net is nonprofit entities, and the third safety net is government. Many governments partner with nonprofit--including faith-based--entities to be able to carry out social services. For those entities, they would now have a target on them because they are functioning under the color of State law, and they would have new restrictions. So their choice would be either not to provide those services or to abandon their faith.

Now, what are the challenges to them in particular in this? Well, the first challenge is that they would face litigation from the Attorney General's Office. The second challenge would be they now face a new what is called a private right of action. That is what the second area my amendment specifically deals with. First, it corrects this looping into lots of new faith-based entities and saying: You are now a State actor; you are under new restrictions. The second one would be this private right of action.

The private right of action would now be--anyone who is functioning ``under the color of State law'' would now be a target from an individual who senses that they have been harmed by the entity. Now, it is not defined--what ``harmed'' means--in this new statute; it just says that if someone feels they have been harmed by it, they would now have the opportunity to be able to sue someone else because of that.

It is not hard for me to be able to say something that is fairly obvious; that is, if Congress creates a new right to sue people, there will be a lot more lawsuits, and there will be new tests and evaluations on that. For anyone who believes that this new right to be able to sue people won't be used and won't be used quickly by lawyers and outside groups all around the country, you are kidding yourself. What will happen in the days ahead, there will be--who knows?-- countless numbers of lawsuits testing every new definition of what, under the color of State law, what a partnership with government might look like. Whether that is a vendor who is at an official State event or whether that is an entity that is providing something like a private prison or adoption services, they will all face lawsuits and challenges in the days ahead by entrepreneurial attorneys testing out the limits of this new law.

We don't know what those limits will be determined by the courts. We have no idea because it is not defined what it means when they say they have been harmed and what that definition might mean to different courts around the country. But we do know this is going to be a major issue.

My first question is, Why is this even included in this bill at all? There is already a protection that the State has the opportunity to be able to make sure they are enforcing the law within their State. This new private right of action, though, goes above and beyond that and gives the opportunity for entrepreneurial lawyers to be able to practice their craft at the detriment of entities all over the country.

What it really does is it silences any individual who may disagree and discourages any faith-based entity from cooperating with government; to say, if you want to be able to partner with the State in the area, you probably aren't welcome here because you don't share the same beliefs.

The third big issue that we try to correct in this that is a major problem in this bill is, in the bill, if you actually read from the text 7(a)--now, 7(a) probably means nothing to many people outside this room, but the 7(a) section is designed to be able to protect the rights of individuals or entities not to be able to lose their nonprofit status or grants or contracts or whatever it may be, but it has very specific language that is built into this. The specific language is, if that benefit or right does not arise from a marriage. It is very carefully written.

When I passed it around to different attorneys to say what does it mean, it has been fascinating to me to learn different interpretations of this statute. This particular section 7(a) is written so vague that it is very difficult to understand what it does mean, but it is very clear what it doesn't mean.

When it says all these different rights that have been granted based on does not arise from a marriage, it doesn't include your belief about marriage. It just says does not rise from a marriage.

Why do I say that? Our amendment actually includes the belief about marriage included into it to make it very, very clear that if you have a different belief about marriage, you won't lose your nonprofit status, you won't lose your opportunity to have grants or contracts, but that is not included in this statute.

What is included in the statute is just does not arise from a marriage. That will be a problem in the courts and, unfortunately, that will have to be litigated until that is actually determined what it would mean.

What we could do instead is pass my amendment. The amendment makes it very clear. What I hear from even some of the bill's sponsors is they say: No, this is what it is intended to mean. I look at it and say: That is not what it actually says.

So let's have that section say what you actually intended for that to say to make it clear. Let's take away the private right of action so that people around the country aren't perpetually worried about a lawsuit coming at them constantly. Let's take away this under the color of law section so that there is not a fear of faith-based nonprofits not partnering with their own government for fear government would step in and say: Oh, if you are going to partner with us, then you have to surrender these different beliefs.

Again, I have had individuals who are sponsors of this bill say none of those things are what we intend. But courts don't rule on intentions of Congress; they rule on the text that we actually put out.

Those are three major problems in this text. If they are not corrected and if they are not corrected today, my fear is President Obama's statement of just 7 years ago that we would not ``recognize different viewpoints [and] revere our deep commitment to religious freedom'' would today be ignored.

I encourage the adoption of my amendment, and I encourage everyone in this body to ask a very simple question of themselves: Is today about respecting the rights of all or is it about silencing some and respecting others?

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Mr. LANKFORD. Mr. President, this amendment is very, very narrowly tailored. It is in response to the bill. I have talked to several of the bill's sponsors, and they have told me their intent is to be able to protect religious liberty, which I appreciate that to be able to have a balanced perspective in this particular bill because people of good will on both sides have disagreements in this area.

The problem is, there are three certain areas of the text that do not actually meet that standard of being a balanced protection. So this amendment goes into those three areas and corrects the text to make sure it actually says it is going to protect religious liberty. It is three areas.

One is a very wide perspective of operating under the color of State law. That has a very broad net on it. We tried to be able to correct that one.

The second one deals with striking the private right of action on this, which will dramatically increase the number of lawsuits. I can assure you, if Congress passes a law that opens up a new lane for lawsuits, there will be lots of new lawsuits in that area.

The third area is in 7(a), where it talks about protecting all these rights if it does arise from a marriage, not from a belief in a marriage. So we are trying to correct that text to make sure it is not just the action of marriage but also the belief of marriage.

That is what this amendment does.
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