Despite Best Efforts, House NDAA Still Sanctions Taxpayer-Funded Discrimination

Last night, the House of Representatives passed the National Defense Authorization Act for Fiscal Year 2017 (NDAA).  In the lead-up to passage, though, a routine procedural vote transformed into an impassioned plea for equality.

The bill, setting national defense policy for our country, is obviously a high priority for Congress.  Because it is a must-pass bill, it’s often a target for lawmakers who want to advance their unrelated agendas.  This year was no different.  One such provision would allow taxpayer-funded employment discrimination—under all federal grants and contracts (not just defense contracts), religiously affiliated organizations must be permitted to discriminate in hiring on the basis of religion with grant or contract money.

This means that a faith-based organization could take taxpayer money to perform a social service for the public—like running the local homeless shelter or working with at-risk youth—and then only hire people who belong to the organization’s denomination or profess the same beliefs. Religious hospitals and schools that get government grants or contracts could do the same. The result: government-funded jobs will be denied to qualified candidates because they belong to the “wrong religion” or don’t live according to an organization’s religious tenets. This isn’t just about whether you belong to the right church or temple (which is also clearly wrong), but it also means taxpayer-funded organizations could discriminate against a woman who is pregnant and unmarried or a man who marries his same-sex partner.

Rep. Charlie Dent (R-PA) led a bipartisan effort to strip this discriminatory provision from the bill, putting forth an amendment to the NDAA.  As Dent explained, "We cannot let ourselves fall into this misconception that religious freedom and nondiscrimination are mutually exclusive.  We can and must do both.” The Coalition Against Religious Discrimination (CARD) sent a letter on behalf of 84 organizations supporting efforts to strip out this provision. 

Unfortunately, House leadership prevented the amendment from even being debated on the floor of the House—leading to an outcry from many members of Congress.  The Democratic Leader, Nancy Pelosi (D-CA) denounced the move, saying that the NDAA should not “codify . . . intolerance against Americans based on their sexual orientation or gender identity.” The top Democrat on the House Armed Services Committee, Adam Smith (D-WA) calling this the “last straw,” announced, “I’m going to oppose the bill, which I did not want to do,” because, "here, we are forced to vote for a defense bill that contains discriminatory language that we do not support.” Here are a few more of their reactions:

Rep. Jerrold Nadler (D-NY):

Rep. Steve Israel (D-NY):

And Rep. Mark Takano’s (D-CA) self-described “Twitter rant”:

To understand their next steps, we need to take short diversion for a brief explanation of procedure.  For many bills debated in Congress, the minority party has the opportunity to make a “motion to recommit” at the end of the debate on the bill. It is their last—and sometimes only—chance to amend the bill. It’s a routine that doesn’t often involve a rousing speech, applause, and angry shouts.  But last night was different.

The Democrats, currently the minority party, raised two issues in their motion to recommit.  First, Rep. James Clyburn (D-SC) spoke movingly about an amendment that would have the effect of removing the Confederate flag on display at the Citadel in his home state of South Carolina.  Then Rep. Sean Patrick Maloney (D-NY) spoke about an amendment to strike the provision in the bill that sanctions taxpayer-funded employment discrimination (watch here).  His voice raised, he reminded his fellow lawmakers that personal support alone for LGBT rights is not enough—their vote must reflect it.  Many colleagues responded with cheering and applause, and their emotions spilled over as they shouted at the person who spoke against the amendment.

Despite the moment’s intensity, the important amendments wrapped in a procedural vote were voted straight down along party lines. 

This morning, Maloney revived his efforts.  He proposed an amendment to separate funding legislation, the Military Construction and Veteran Affairs spending bill, that may have limited the harm of the defense bill’s sweeping measure.  He again spoke passionately, and this time, Dent voiced support, making the amendment bipartisan. 

Then things became chaotic.  With both Democrats and Republicans voting for the amendment, there were enough votes for the amendment to pass.  Then, outside of the usual practice, the vote was not announced when time expired.  Instead, the vote was held open so that several Republicans, reportedly under pressure, could change their vote.  As the legislators watched the votes change in real time, there were cries of “shame, shame.”  And some Republicans had choice words about the way the rules—and arms—were twisted to ensure the amendment lost.

The amendment was ultimately defeated 212-213—by a mere one vote. 

So, the discriminatory provision applying to all federal grants and contracts in the House NDAA still stands.  Next week, the Senate will consider its version of the bill, which so far does not have this bad provision.