MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary

By: Senator(s) White (29th)

AN ACT RELATING TO RELIGIOUS FREEDOM; TO PROVIDE THAT THE STATE OF MISSISSIPPI AND ITS POLITICAL SUBDIVISIONS SHALL NOT SUBSTANTIALLY BURDEN A PERSON'S EXERCISE OF RELIGION, UNLESS IT DEMONSTRATES THAT THERE IS A COMPELLING GOVERNMENTAL INTEREST AND IS THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT COMPELLING GOVERNMENTAL INTEREST; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Short title.

This act may be cited as the Religious Freedom Restoration Act.

SECTION 2. Definitions.

In this act:

(a) "Demonstrates" means meets the burden of going forward with the evidence and of persuasion under the standard of clear and convincing evidence.

(b) "Exercise of religion" means an act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.

(c) "Government" includes a branch, department, agency, instrumentality and official (or other person acting under color of law) of the State of Mississippi or a political subdivision of the state.

(d) "Substantially burden" means to inhibit or curtail religiously motivated practices.

SECTION 3. Findings and purposes.

(1) The Legislature finds the following:

(a) The free exercise of religion is an inherent, fundamental and inalienable right secured by Section 18 of the Mississippi Constitution of 1890.

(b) Laws "neutral" toward religion, as well as laws intended to interfere with the exercise of religion, may burden the exercise of religion.

(c) Government should not substantially burden the exercise of religion without compelling justification.

(d) In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court virtually eliminated the requirement under the First Amendment to the United States Constitution that government justify burdens on the exercise of religion imposed by laws neutral toward religion.

(e) In City of Boerne v. P.F. Flores, 65 LW 4612 (1997), the Supreme Court held that an act passed by Congress to address the matter of burdens placed on the exercise of religion, infringed on the legislative powers reserved to the states under the Constitution of the United States.

(f) The compelling interest test, as set forth in Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Varner, 374 U.S. 398 (1963), is a workable test for striking sensible balances between religious liberty and competing governmental interest.

(2) The purposes of this act are as follows:

(a) To restore the compelling interest test as set forth in Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Varner, 374 U.S. 398 (1963), and to guarantee that a test of compelling governmental interest will be imposed on all state and local (including home rule unit) laws, ordinances, policies, procedures, practices and governmental actions in all cases in which the free exercise of religion is substantially burdened.

(b) To provide a claim or defense to persons whose exercise of religion is substantially burdened by government.

SECTION 4. Free exercise of religion protected.

Government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (a) is both essential to further compelling governmental interest; and (b) is the least restrictive means of furthering that compelling governmental interest.
SECTION 5. Judicial relief.

If a person's exercise of religion has been burdened in violation of this act, that person may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief against a government. A party who prevails in an action to enforce this act against a government is entitled to recover attorney's fees and costs incurred in maintaining the claim or defense.

SECTION 6. Application of act.

(1) This act applies to all state and local laws, ordinances, policies, procedures, practices and governmental actions and their implementation, whether statutory or otherwise and whether adopted before or after the effective date of this act.

(2) Nothing in this act shall be construed to authorize a government to burden any religious belief.

(3) Nothing in this act shall be construed to affect, interpret, or in any way address any of the following: (a) that portion of the First Amendment of the United States Constitution prohibiting laws respecting the establishment of religion, or (b) Section 18 of the Mississippi Constitution of 1890. Granting government funding, benefits or exemptions, to the extent permissible under the constitutional provisions described in items (a) and (b) of this subsection, does not constitute a violation of this act. In this subsection, "granting," used with respect to government funding, benefits or exemptions, does not include the denial of government funding, benefits or exemptions.

(4) The corporate authorities of a municipality or other unit of local government may enact ordinances, standards, rules or regulations that protect the free exercise of religion in a manner or to an extent equal to or greater than the protection provided in this act. If an ordinance, standard, rule or regulation enacted under the authority of this section or under the authority of a unit of local government's home rule powers prohibits, restricts, narrows or burdens a person's exercise of religion or permits the prohibition, restriction, narrowing or burdening of a person's exercise of religion, that ordinance, standard, rule or regulation is void and unenforceable as to that person if it (a) is not in furtherance of a compelling governmental interest, and (b) is not the least restrictive means of furthering that governmental interest.

SECTION 7. This act shall take effect and be in force from and after July 1, 2001.