II 

118TH CONGRESS 

1ST SESSION S. 492 

To prohibit the imposition of certain substantial burdens, relating to COVID– 

19 vaccine mandates, on religious exercise, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 16, 2023 

Mr. RUBIO (for himself and Mr. LEE) introduced the following bill; which was 

read twice and referred to the Committee on the Judiciary 

A BILL 

To prohibit the imposition of certain substantial burdens, 

relating to COVID–19 vaccine mandates, on religious 

exercise, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Conscience Objections 

5 to Negligent State COVID–19 Inoculation Edicts Need 

6 Constitutional Enforcement Act of 2023’’ or the ‘‘CON7 SCIENCE Act of 2023’’. 

8 SEC. 2. FINDINGS AND PURPOSE. 

9 (a) FINDINGS.—Congress finds the following: 


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1 (1) In response to the COVID–19 pandemic, 

2 State and local governments and private sector enti3 ties have implemented unprecedented public health 

4 requirements, including requirements that their em5 ployees, customers, and other persons receive a 

6 COVID–19 vaccine (referred to in this section as 

7 ‘‘COVID–19 vaccine mandates’’), resulting in mil8 lions of Americans being subject to such require9 ments. 

10 (2) Many COVID–19 vaccine mandates, due to 

11 their unprecedented magnitude and scope of applica12 tion, and the unprecedented haste of and inattention 

13 to the religious exercise of persons subject to the 

14 mandates by the organizations implementing them, 

15 do not adequately protect the religious freedom of 

16 the persons subject to them. 

17 (3) As a result, millions of Americans have ob18 jected to COVID–19 vaccine mandates—more than 

19 for any other medical requirement for employment 

20 or for use of a public accommodation in recent his21 tory—often at great personal cost, on the basis that 

22 receiving a COVID–19 vaccine would violate their 

23 sincerely held religious beliefs. 

24 (4) COVID–19 vaccine mandates commonly 

25 threaten the rights of employees and other persons 


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1 to religious exercise by requiring persons subject to 

2 the mandates to— 

3 (A) receive a COVID–19 vaccine (with re4 spect to private entities, often under the color 

5 of law), in violation of their sincerely held reli6 gious beliefs; or 

7 (B) otherwise face substantial burdens 

8 such as the loss of employment, pay, or status 

9 within employment, the subjection to punitive 

10 personal public health measures, or any other 

11 loss caused by a failure to accommodate reli12 gious exercise. 

13 (5) With respect to COVID–19 vaccine man14 dates implemented by the States and the District of 

15 Columbia, the rights of persons under the First 

16 Amendment to the Constitution of the United States 

17 who are subject to such requirements have been vio18 lated in the following ways: 

19 (A) COVID–19 vaccine mandates for State 

20 employees in the States of New York, Maine, 

21 and Rhode Island have allowed for medical ex22 emptions from the COVID–19 vaccine, but have 

23 not allowed for religious exemptions. 

24 (B) The Governor of New York has stated 

25 that— 


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1 (i) New York intentionally excluded 

2 religious exemptions from the COVID–19 

3 vaccination mandate; and 

4 (ii) the Governor was unaware of any 

5 ‘‘organized religion’’ that seeks religious 

6 exemptions for the COVID–19 vaccine and 

7 those individuals who seek such an exemp8 tion are not ‘‘listening to God and what 

9 God wants;’’. 

10 (C) New York has allowed COVID–19 vac11 cinated workers with symptomatic, active 

12 COVID–19 infections to continue working in 

13 hospitals, but has not allowed religious objec14 tors who do not have COVID–19 to work in 

15 hospitals. 

16 (D) Maine removed the allowance for reli17 gious exemptions for health care workers, effec18 tive September 1, 2021, in a law requiring all 

19 health care workers to receive the COVID–19 

20 vaccine and influenza vaccine. 

21 (E) Rhode Island omitted religious exemp22 tions to COVID–19 vaccines. 

23 (F) In Rhode Island, health care workers 

24 have been required to receive the COVID–19 

25 vaccine, and health care facilities are required 


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1 to deny entry to health care workers or pro2 viders who are not fully vaccinated. 

3 (6) With respect to COVID–19 vaccine man4 dates implemented by private sector entities, United 

5 Airlines instituted an ‘‘absolute’’ policy requiring all 

6 employees to receive the COVID–19 vaccine, and 

7 those who submitted requests for religious exemp8 tions were either automatically denied or placed on 

9 unpaid leave with no benefits. 

10 (7) COVID–19 vaccine mandates that do not 

11 accommodate religious exercise have resulted in 

12 labor shortages that affect interstate and foreign 

13 commerce. 

14 (8) According to a report by the Committee on 

15 Small Business and Entrepreneurship of the Senate, 

16 the Federal COVID–19 vaccine requirement put an 

17 estimated 44,900,000 Americans at risk of losing 

18 their jobs owing to their refusal to receive a 

19 COVID–19 vaccine. A substantial number of those 

20 refusals may be attributed to religious objections, as 

21 according to a survey by the Public Religion Re22 search Institute, 10 percent of Americans believe 

23 that receiving a COVID–19 vaccine would conflict 

24 with their religious beliefs. 


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1 (9) In Doe v. Mills, 142 S. Ct. 17 (2021) and 

2 Dr. A. v. Hochul, 142 S. Ct. 552 (2021), the Su3 preme Court denied the requests of employees re4 questing religious exemptions to COVID–19 vaccine 

5 mandates, causing those employees to face irrep6 arable harm. 

7 (10) The Free Exercise Clause of the First 

8 Amendment to the Constitution protects rights of in9 dividuals to live out their religious beliefs publicly 

10 through religious exercise. 

11 (11) Congress has the power to enforce the 

12 right to free exercise of religion, through remedial 

13 measures under section 5 of the 14th Amendment to 

14 the Constitution. 

15 (12) Laws that protect the free exercise of reli16 gious beliefs are consistent with the founding prin17 ciples of the United States and protections under the 

18 First Amendment to the Constitution. 

19 (13) Congress has the power to regulate inter20 state and foreign commerce under the Commerce 

21 Clause of section 8 of article I of the Constitution. 

22 (b) PURPOSE.—The purpose of this Act is to preempt 

23 laws and disallow practices that discriminate against per24 sons due to their religious exercise. 


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1 SEC. 3. DEFINITIONS. 

2 In this Act: 

3 (1) COVERED PERSON.—The term ‘‘covered 

4 person’’ means a person raising a claim or defense 

5 under this Act. 

6 (2) COVID–19 VACCINE MANDATE.—The term 

7 ‘‘COVID–19 vaccine mandate’’ means a mandate 

8 that an individual receive a COVID–19 vaccine. 

9 (3) DEMONSTRATES.—The term ‘‘dem10 onstrates’’ means meets the burdens of going for11 ward with the evidence and of persuasion. 

12 (4) FREE EXERCISE CLAUSE.—The term ‘‘Free 

13 Exercise Clause’’ means that portion of the First 

14 Amendment to the Constitution of the United States 

15 that proscribes laws prohibiting the free exercise of 

16 religion. 

17 (5) GOVERNMENT.—The term ‘‘government’’— 

18 (A) means— 

19 (i) a State, county, municipality, or 

20 other governmental entity created under 

21 the authority of a State; 

22 (ii) any branch, department, agency, 

23 instrumentality, or official of an entity list24 ed in clause (i); and 

25 (iii) any other person acting under 

26 color of State law; and 


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1 (B) for the purpose of sections 5(b) and 6, 

2 includes— 

3 (i) the United States; 

4 (ii) any branch, department, agency, 

5 instrumentality, or official of the United 

6 States; and 

7 (iii) any other person acting under 

8 color of Federal law. 

9 (6) PROGRAM OR ACTIVITY.—The term ‘‘pro10 gram or activity’’ means all of the operations of any 

11 entity as described in paragraph (1) or (2) of section 

12 606 of the Civil Rights Act of 1964 (42 U.S.C. 

13 2000d–4a), any part of which is extended Federal fi14 nancial assistance. 

15 (7) RELIGIOUS EXERCISE.— 

16 (A) IN GENERAL.—The term ‘‘religious ex17 ercise’’ includes any exercise of religion, wheth18 er or not compelled by, or central to, a system 

19 of religious belief. 

20 (B) RULE.— 

21 (i) PERSON.—In the case of a person, 

22 refusing to receive a COVID–19 vaccine on 

23 the basis of a sincerely held religious belief 

24 shall be considered to be religious exercise 

25 of the person. 


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1 (ii) ENTITY.—In the case of an entity, 

2 refusing on the basis of a sincerely held re3 ligious belief to require that any employee, 

4 customer, or other person affiliated with 

5 the entity receive a COVID–19 vaccine 

6 mandate shall be considered to be religious 

7 exercise of the entity. 

8 SEC. 4. PROTECTION OF RELIGIOUS LIBERTY AND EXER9 CISE BY EXEMPTIONS FOR THE COVID–19 

10 VACCINE. 

11 (a) SUBSTANTIAL BURDENS.— 

12 (1) GENERAL RULE.—No government shall im13 pose or implement a COVID–19 vaccine mandate in 

14 a manner that imposes a substantial burden on the 

15 religious exercise of a person, including a religious 

16 assembly or institution, unless the government dem17 onstrates that imposition of the burden on that per18 son’s, assembly’s, or institution’s religious exercise— 

19 (A) is in furtherance of a compelling gov20 ernmental interest; and 

21 (B) is the least restrictive means of fur22 thering that compelling governmental interest. 

23 (2) SCOPE OF APPLICATION.—This subsection 

24 and subsection (b) apply in any case in which— 


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1 (A) the substantial burden is imposed by 

2 State law, even if the burden results from a 

3 rule of general applicability; 

4 (B) the substantial burden is imposed in a 

5 program or activity that receives Federal finan6 cial assistance, even if the burden results from 

7 a rule of general applicability; 

8 (C) the substantial burden is imposed by 

9 an entity that operates a workplace and that is 

10 party to or conducts work in connection with a 

11 contract or contract-like instrument with any 

12 government, even if the burden results from a 

13 rule of general applicability; 

14 (D) the substantial burden affects, or re15 moval of that substantial burden would affect, 

16 commerce with foreign nations, among the sev17 eral States, or with Indian Tribes, even if the 

18 burden results from a rule of general applica19 bility; or 

20 (E) the substantial burden is imposed in 

21 the implementation of a COVID–19 vaccine 

22 mandate, under which the government makes, 

23 or has in place formal or informal procedures or 

24 practices that permit the government to make, 

25 individualized assessments of COVID–19 vacVerDate Sep 11 2014 01:38 Mar 07, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S492.IS S492

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1 cine exemptions, even if the burden results from 

2 a rule of general applicability. 

3 (b) DISCRIMINATION AND EXCLUSION.— 

4 (1) EQUAL TERMS.—No government shall im5 pose or implement a COVID–19 vaccine mandate in 

6 a manner that treats a religious exercise (including 

7 a condition) on less than equal terms with a nonreli8 gious exercise (including a condition). 

9 (2) NONDISCRIMINATION.—No government 

10 shall impose or implement a COVID–19 vaccine 

11 mandate that imposes a substantial burden on any 

12 person for an exercise on the basis of religion, in13 cluding a religious denomination. 

14 (3) EXCLUSIONS AND LIMITS.—No government 

15 shall impose or implement a COVID–19 vaccine 

16 mandate that— 

17 (A) totally excludes religious exemptions; 

18 or 

19 (B) unreasonably limits religious exemp20 tions. 

21 SEC. 5. JUDICIAL RELIEF. 

22 (a) CAUSE OF ACTION.—A covered person may assert 

23 an actual or threatened violation of this Act by a govern24 ment as a claim or defense in a judicial or administrative 

25 proceeding and obtain compensatory damages, injunctive 


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1 relief, declaratory relief, or any other appropriate relief 

2 against the government involved. Standing to assert a 

3 claim or defense under this section shall be governed by 

4 the general rules of standing under article III of the Con5 stitution. 

6 (b) BURDEN OF PERSUASION.—If a covered person 

7 produces prima facie evidence to support a claim alleging 

8 a violation of the Free Exercise Clause or a violation of 

9 section 4, the government shall bear the burden of persua10 sion on any element of the claim, except that the covered 

11 person shall bear the burden of persuasion on whether the 

12 law (including a regulation) or government practice that 

13 is challenged by the claim substantially burdens the cov14 ered person’s exercise of religion. 

15 (c) ADMINISTRATIVE REMEDIES NOT REQUIRED.— 

16 Notwithstanding any other provision of law, an action 

17 under this section may be commenced, and relief may be 

18 granted, in a district court of the United States without 

19 regard to whether the covered person commencing the ac20 tion has sought or exhausted available administrative rem21 edies. 

22 (d) FULL FAITH AND CREDIT.—Adjudication of a 

23 claim of a violation of section 4 in a non-Federal forum 

24 shall not be entitled to full faith and credit in a Federal 


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1 court unless the claimant had a full and fair adjudication 

2 of that claim in the non-Federal forum. 

3 (e) ATTORNEYS’ FEES.—Section 722(b) of the Re4 vised Statutes (42 U.S.C. 1988(b)) is amended by insert5 ing ‘‘the CONSCIENCE Act of 2023,’’ after ‘‘the Reli6 gious Land Use and Institutionalized Persons Act of 

7 2000,’’. 

8 (f) AUTHORITY OF UNITED STATES TO ENFORCE

9 THIS ACT.—The United States may bring an action for 

10 injunctive or declaratory relief to enforce compliance with 

11 this Act. Nothing in this subsection shall be construed to 

12 deny, impair, or otherwise affect any right or authority 

13 of the Attorney General, the United States, or any agency, 

14 officer, or employee of the United States, acting under any 

15 law other than this subsection, to institute or intervene 

16 in any proceeding. 

17 SEC. 6. RULES OF CONSTRUCTION. 

18 (a) RELIGIOUS BELIEF UNAFFECTED.—Nothing in 

19 this Act shall be construed to authorize any government 

20 to burden any religious belief. 

21 (b) RELIGIOUS EXERCISE NOT REGULATED.—Noth22 ing in this Act shall create any basis— 

23 (1) for restricting or burdening religious exer24 cise; or 


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1 (2) for claims against a religious organization, 

2 including any religiously affiliated school or institu3 tion of higher education, not acting under color of 

4 law. 

5 (c) CLAIMS TO FUNDING UNAFFECTED.—Nothing in 

6 this Act shall create or preclude a right of any religious 

7 organization to receive funding or other assistance from 

8 a government, or of any person to receive government 

9 funding for a religious activity, but this Act may require 

10 a government to incur expenses in its own operations to 

11 avoid imposing a substantial burden on religious exercise. 

12 (d) GOVERNMENTAL DISCRETION IN ALLEVIATING

13 BURDENS ON RELIGIOUS EXERCISE.—A government may 

14 avoid the preemptive force of any provision of this Act by 

15 changing the policy or practice that results in a substan16 tial burden on religious exercise, by retaining the policy 

17 or practice and exempting the substantially burdened reli18 gious exercise, by providing exemptions from the policy or 

19 practice for applications that substantially burden reli20 gious exercise, or by any other means that eliminates the 

21 substantial burden. 

22 (e) EFFECT ON OTHER LAW.—With respect to a 

23 claim brought under this Act, proof that a substantial bur24 den on a person’s religious exercise affects, or removal of 

25 that burden would affect, commerce with foreign nations, 


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1 among the several States, or with Indian Tribes, shall not 

2 establish any inference or presumption that any religious 

3 exercise is, or is not, subject to any law other than this 

4 Act. 

5 (f) BROAD CONSTRUCTION.—This Act shall be con6 strued in favor of a broad protection of religious exercise, 

7 to the maximum extent permitted by the terms of this Act 

8 and the Constitution. 

9 (g) NO PREEMPTION OR REPEAL.—Nothing in this 

10 Act shall be construed to preempt State law, or repeal 

11 Federal law, that is equally as protective of religious exer12 cise as, or more protective of religious exercise than, this 

13 Act. 

14 (h) SEVERABILITY.—If any provision of this Act or 

15 an amendment made by this Act, or any application of 

16 such provision to any person or circumstance, is held to 

17 be unconstitutional, the remainder of this Act and the 

18 amendments made by this Act, and the application of the 

19 provision to any other person or circumstance shall not 

20 be affected. 

21 SEC. 7. ESTABLISHMENT CLAUSE UNAFFECTED. 

22 Nothing in this Act shall be construed to affect, inter23 pret, or in any way address that portion of the First 

24 Amendment to the Constitution prohibiting laws respect25 ing an establishment of religion (referred to in this section 


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1 as the ‘‘Establishment Clause’’). Granting government 

2 funding, benefits, or exemptions, to the extent permissible 

3 under the Establishment Clause, shall not constitute a vio4 lation of this Act. In this section, the term ‘‘granting’’, 

5 used with respect to government funding, benefits, or ex6 emptions, does not include the denial of government fund7 ing, benefits, or exemptions. 

8 SEC. 8. APPLICABILITY. 

9 This Act applies to any COVID–19 vaccine mandate, 

10 whether adopted before, on, or after the date of enactment 

11 of this Act. 

Æ 


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