Senate Bill 2822

AN ACT TO AMEND SECTION 11-61-1, MISSISSIPPI CODE OF 1972, TO CLARIFY THE APPLICATION OF THE MISSISSIPPI RELIGIOUS FREEDOM RESTORATION ACT; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 11-61-1, Mississippi Code of 1972, is amended as follows:

11-61-1. (1) This section shall be known and may be cited as the Mississippi Religious Freedom Restoration Act.

(2) The Mississippi Legislature finds the following:

(a) The framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;

(b) Laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;

(d) In Employment Division v. Smith, 494 U.S. 872 (1990), the United States Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(e) The compelling interest test as set forth in prior federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

(3) The purposes of this section are as follows:

(a) To restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), and to guarantee its application in all cases where free exercise of religion is substantially burdened; and

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

(4) As used in this section, the following words shall have the following meanings:

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

(b) "Demonstrates" means to meet the burdens of going forward with the evidence and of persuasion.

(d) "Person" means and includes any:

(i) Natural person in his or her individual capacity, regardless of religious affiliation;

(ii) Natural person in his or her capacity as a religious leader, clergy or minister;

(iii) Artificial person, including, but not limited to, a religious organization, religious-based foster or adoptive agency or private entity; and

(iv) Foster or adoptive parent.

(5) (a) Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in paragraph (b) of this subsection. In the case of:

(i) A religious leader, clergy or minister, or religious organization, the government shall not discriminate against or substantially burden a person's exercise of religion, which includes, but is not limited to, the person's provision of or refusal to conduct matrimonial, formation, celebration or recognition of any marriage based upon or in a manner consistent with the person's sincerely held religious belief or moral conviction.

(ii) An individual or private entity, the government shall not discriminate against or substantially burden the free exercise of religion, which includes, but is not limited to, the person's provision of or refusal to provide marriage-related goods or services of any nature based upon or in a manner consistent with the individual's or entity's sincerely held religious belief or moral conviction.

(iii) A religious-based foster or adoptive agency that advertises, provides or facilitates adoption, foster-care or related services, the government shall not discriminate against or substantially burden the free exercise of religion, which includes, but is not limited to, the agency's provision of or the refusal to provide adoption or foster-care services or the instruction or raising of a child or children based upon or in a manner consistent with the agency's sincerely held religious belief or moral conviction.

(iv) Foster and adoptive parents who the state grants custody of a foster of adoptive child, or who seeks custody from the state, the government shall not discriminate against nor prohibit the free exercise of religion, which includes, but is not limited to, the parents' instruction or raising of a child or children based upon or in a manner consistent with the parents' sincerely held religious belief or moral conviction.

(b) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person:

(i) Is in furtherance of a compelling governmental interest; and

(ii) Is the least restrictive means of furthering that compelling governmental interest.

(6) A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the government, as defined by subsection (4) of this section. Standing to assert a claim or defense under this section shall be the same as the general rules of standing under Article III of the United States Constitution.

(7) (a) This section applies to all state laws, rules, regulations and any municipal or county ordinances, rules or regulations and the implementation of those laws, whether statutory or otherwise, and whether adopted before or after July 1, 2014.

(b) Any such law, rule, regulation or ordinances adopted after July 1, 2014, shall be subject to this section unless such law explicitly excludes such application by reference to this section.

(8) Nothing in this section shall be construed to authorize any government to burden any religious belief.

(9) Nothing in this section shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion. Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this section. As used in this subsection, the term "granting," used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

(10) Nothing in this section shall create any rights by an employee against an employer if the employer is not the government.

SECTION 2. This act shall take effect and be in force from and after July 1, 2016.