II

105TH CONGRESS

2D SESSION S. 2148

To protect religious liberty.

IN THE SENATE OF THE UNITED STATES

JUNE 9, 1998

Mr. HATCH (for himself and Mr. KENNEDY) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

A BILL

To protect religious liberty.

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 ‘‘Religious Liberty Pro5 tection Act of 1998’’.

6 SEC. 2. PROTECTION OF RELIGIOUS EXERCISE.

7 (a) GENERAL RULE.—Except as provided in sub8 section (b), a government shall not substantially burden

9 a person’s religious exercise—

10 (1) in a program or activity, operated by a gov11 ernment, that receives Federal financial assistance;

12 or
2

•S 2148 IS

1 (2) in or affecting commerce with foreign na2 tions, among the several States, or with the Indian

3 tribes;

4 even if the burden results from a rule of general applicabil5 ity.

6 (b) EXCEPTION.—A government may substantially

7 burden a person’s religious exercise if the government

8 demonstrates that application of the burden to the per9 son—

10 (1) is in furtherance of a compelling govern11 mental interest; and

12 (2) is the least restrictive means of furthering

13 that compelling governmental interest.

14 (c) FUNDING NOT AFFECTED.—Nothing in this sec15 tion shall be construed to authorize the United States to

16 deny or withhold Federal financial assistance as a remedy

17 for a violation of this Act.

18 (d) STATE POLICY NOT COMMANDEERED.—A gov19 ernment may eliminate the substantial burden on religious

20 exercise by changing the policy that results in the burden,

21 by retaining the policy and exempting the religious exer22 cise from that policy, or by any other means that elimi23 nates the burden.

24 (e) DEFINITIONS.—As used in this section—
3

•S 2148 IS

1 (1) the term ‘‘government’’ means a branch, de2 partment, agency, instrumentality, subdivision, or

3 official of a State (or other person acting under

4 color of State law);

5 (2) the term ‘‘program or activity’’ means a

6 program or activity as defined in paragraph (1) or

7 (2) of section 606 of the Civil Rights Act of 1964

8 (42 U.S.C. 2000d–4a); and

9 (3) the term ‘‘demonstrates’’ means meets the

10 burdens of going forward with the evidence and of

11 persuasion.

12 SEC. 3. ENFORCEMENT OF THE FREE EXERCISE CLAUSE.

13 (a) PROCEDURE.—If a claimant produces prima facie

14 evidence to support a claim of a violation of the Free Exer15 cise Clause, the government shall bear the burden of per16 suasion on all issues relating to the claim, except any issue

17 as to the existence of the burden on religious exercise.

18 (b) LAND USE REGULATION.—

19 (1) LIMITATION ON LAND USE REGULATION.—

20 No government shall impose a land use regulation

21 that—

22 (A) substantially burdens religious exer23 cise, unless the burden is the least restrictive

24 means to prevent substantial and tangible harm
4

•S 2148 IS

1 to neighboring properties or to the public health

2 or safety;

3 (B) denies religious assemblies a reason4 able location in the jurisdiction; or

5 (C) excludes religious assemblies from

6 areas in which nonreligious assemblies are per7 mitted.

8 (2) FULL FAITH AND CREDIT.—Adjudication of

9 a claim of a violation of this subsection in a non10 Federal forum shall be entitled to full faith and

11 credit in a Federal court only if the claimant had a

12 full and fair adjudication of that claim in the non13 Federal forum.

14 (3) NONPREEMPTION.—Nothing in this sub15 section shall preempt State law that is equally or

16 more protective of religious exercise.

17 (4) NONAPPLICATION OF OTHER PORTIONS OF

18 THIS ACT.—Section 2 does not apply to land use

19 regulation.

20 SEC. 4. JUDICIAL RELIEF.

21 (a) CAUSE OF ACTION.—A person may assert a viola22 tion of this Act as a claim or defense in a judicial proceed23 ing and obtain appropriate relief against a government.

24 Standing to assert a claim or defense under this section
5

•S 2148 IS

1 shall be governed by the general rules of standing under

2 article III of the Constitution.

3 (b) ATTORNEYS’ FEES.—Section 722(b) of the Re4 vised Statutes (42 U.S.C. 1988(b)) is amended—

5 (1) by inserting ‘‘the Religious Liberty Protec6 tion Act of 1998,’’ after ‘‘Religious Freedom Res7 toration Act of 1993,’’; and

8 (2) by striking the comma that follows a

9 comma.

10 (c) PRISONERS.—Any litigation under this Act in

11 which the claimant is a prisoner shall be subject to the

12 Prison Litigation Reform Act of 1995 (including provi13 sions of law amended by that Act).

14 (d) LIABILITY OF GOVERNMENTS.—

15 (1) LIABILITY OF STATES.—A State shall not

16 be immune under the 11th amendment to the Con17 stitution from a civil action, for a violation of the

18 Free Exercise Clause under section 3, including a

19 civil action for money damages.

20 (2) LIABILITY OF THE UNITED STATES.—The

21 United States shall not be immune from any civil ac22 tion, for a violation of the Free Exercise Clause

23 under section 3, including a civil action for money

24 damages.
6

•S 2148 IS

1 SEC. 5. RULES OF CONSTRUCTION.

2 (a) RELIGIOUS BELIEF UNAFFECTED.—Nothing in

3 this Act shall be construed to authorize any government

4 to burden any religious belief.

5 (b) RELIGIOUS EXERCISE NOT REGULATED.—Noth6 ing in this Act shall create any basis for regulation of reli7 gious exercise or for claims against a religious organiza8 tion, including any religiously affiliated school or univer9 sity, not acting under color of law.

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

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

12 organization to receive funding or other assistance from

13 a government, or of any person to receive government

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

15 government to incur expenses in its own operations to

16 avoid imposing a burden or a substantial burden on reli17 gious exercise.

18 (d) OTHER AUTHORITY TO IMPOSE CONDITIONS ON

19 FUNDING UNAFFECTED.—Nothing in this Act shall—

20 (1) authorize a government to regulate or af21 fect, directly or indirectly, the activities or policies of

22 a person other than a government as a condition of

23 receiving funding or other assistance; or

24 (2) restrict any authority that may exist under

25 other law to so regulate or affect, except as provided

26 in this Act.
7

•S 2148 IS

1 (e) EFFECT ON OTHER LAW.—Proof that a religious

2 exercise affects commerce for the purposes of this Act does

3 not give rise to any inference or presumption that the reli4 gious exercise is subject to any other law regulating com5 merce.

6 (f) SEVERABILITY.—If any provision of this Act or

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

8 of such provision to any person or circumstance, is held

9 to be unconstitutional, the remainder of this Act, the

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

11 provision to any other person or circumstance shall not

12 be affected.

13 SEC. 6. ESTABLISHMENT CLAUSE UNAFFECTED.

14 Nothing in this Act shall be construed to affect, inter15 pret, or in any way address that portion of the first

16 amendment to the Constitution prohibiting laws respect17 ing an establishment of religion (referred to in this section

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

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

20 under the Establishment Clause, shall not constitute a vio21 lation of this Act. As used in this section, the term ‘‘grant22 ing’’, used with respect to government funding, benefits,

23 or exemptions, does not include the denial of government

24 funding, benefits, or exemptions.
8

•S 2148 IS

1 SEC. 7. AMENDMENTS TO RELIGIOUS FREEDOM RESTORA2 TION ACT.

3 (a) DEFINITIONS.—Section 5 of the Religious Free4 dom Restoration Act of 1993 (42 U.S.C. 2000bb–2) is

5 amended—

6 (1) in paragraph (1), by striking ‘‘a State, or

7 subdivision of a State’’ and inserting ‘‘a covered en8 tity or a subdivision of such an entity’’;

9 (2) in paragraph (2), by striking ‘‘term’’ and all

10 that follows through ‘‘includes’’ and inserting ‘‘term

11 ‘covered entity’ means’’; and

12 (3) in paragraph (4), by striking all after

13 ‘‘means,’’ and inserting ‘‘an act or refusal to act

14 that is substantially motivated by a religious belief,

15 whether or not the act or refusal is compulsory or

16 central to a larger system of religious belief.’’.

17 (b) CONFORMING AMENDMENT.—Section 6(a) of the

18 Religious Freedom Restoration Act of 1993 (42 U.S.C.

19 2000bb–3(a)) is amended by striking ‘‘and State’’.

20 SEC. 8. DEFINITIONS.

21 As used in this Act—

22 (1) the term ‘‘religious exercise’’ means an act

23 or refusal to act that is substantially motivated by

24 a religious belief, whether or not the act or refusal

25 is compulsory or central to a larger system of reli26 gious belief;
9

•S 2148 IS

1 (2) the term ‘‘Free Exercise Clause’’ means

2 that portion of the first amendment to the Constitu3 tion that proscribes laws prohibiting the free exercise

4 of religion and includes the application of that pro5 scription under the 14th amendment to the Con6 stitution; and

7 (3) except as otherwise provided in this Act, the

8 term ‘‘government’’ means a branch, department,

9 agency, instrumentality, subdivision, or official of a

10 State, or other person acting under color of State

11 law, or a branch, department, agency, instrumental12 ity, subdivision, or official of the United States, or

13 other person acting under color of Federal law.

Æ