II

Calendar No. 436

106TH CONGRESS

2D SESSION S. 2081

Entitled the ‘‘Religious Liberty Protection Act of 2000’’.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 22, 2000

Mr. HATCH introduced the following bill; which was read the first time

FEBRUARY 23, 2000

Read the second time and placed on the calendar

A BILL

Entitled the ‘‘Religious Liberty Protection Act of 2000’’.

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 2000’’.

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—
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1 (1) in a program or activity, operated by a gov2 ernment, that receives Federal financial assistance;

3 or

4 (2) in any case in which the substantial burden

5 on the person’s religious exercise affects, or in which

6 a removal of that substantial burden would affect,

7 commerce with foreign nations, among the several

8 States, or with Indian tribes;

9 even if the burden results from a rule of general applica10 bility.

11 (b) EXCEPTION.—A government may substantially

12 burden a person’s religious exercise if the government

13 demonstrates that application of the burden to the

14 person—

15 (1) is in furtherance of a compelling govern16 mental interest; and

17 (2) is the least restrictive means of furthering

18 that compelling governmental interest.

19 (c) LIMITATION.—This Act does not apply if the only

20 basis for applying the Act is subsection (a)(2) and if the

21 government demonstrates that all similar religious exercise

22 and all substantial burdens on, or the removal of all sub23 stantial burdens from, similar religious exercise would not

24 lead in the aggregate to a substantial effect on commerce

25 or on activities having a substantial relation to commerce.
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1 (d) REMEDIES OF THE UNITED STATES.—Nothing

2 in this section shall be construed to authorize the United

3 States to deny or withhold Federal financial assistance as

4 a remedy for a violation of this Act. Nothing in this sub5 section shall be construed to deny, impair, or otherwise

6 affect any right or authority of the Attorney General, the

7 United States, or any agency, officer, or employee of the

8 United States, under law other than this subsection, in9 cluding section 4(d), to institute or intervene in any action

10 or proceeding.

11 SEC. 3. ENFORCEMENT OF CONSTITUTIONAL RIGHTS.

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

13 evidence to support a claim alleging a violation of the Free

14 Exercise Clause or a violation of a provision of this Act

15 enforcing that clause, the government shall bear the bur16 den of persuasion on any element of the claim, except that

17 the claimant shall bear the burden of persuasion on wheth18 er the law (including a regulation) or government practice

19 that is challenged by the claim burdens or substantially

20 burdens the claimant’s exercise of religion.

21 (b) LAND USE REGULATION.—

22 (1) LIMITATION ON LAND USE REGULATION.—

23 (A) INDIVIDUALIZED ASSESSMENTS.—If,

24 in applying or implementing any land use regu25 lation (including an exemption), or system of
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1 land use regulations (including exemptions), a

2 government has the authority to make individ3 ualized assessments of the proposed uses to

4 which real property would be put, the govern5 ment may not impose a substantial burden on

6 the religious exercise of a religious assembly or

7 institution, or of a person in the person’s home,

8 unless the government demonstrates that appli9 cation of the burden to that assembly, institu10 tion, or person—

11 (i) is in furtherance of a compelling

12 governmental interest; and

13 (ii) is narrowly tailored to further that

14 compelling governmental interest.

15 (B) EQUAL TERMS.—No government shall

16 impose or implement a land use regulation in a

17 manner that does not treat religious assemblies

18 or institutions on equal terms with nonreligious

19 assemblies or institutions.

20 (C) NONDISCRIMINATION.—No government

21 shall impose or implement a land use regulation

22 that discriminates against any assembly or in23 stitution on the basis of religion or religious de24 nomination.
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1 (D) EXCLUSIONS AND LIMITS.—No gov2 ernment with zoning authority shall unreason3 ably exclude from the jurisdiction over which

4 that government has authority, or unreasonably

5 limit within that jurisdiction, assemblies or in6 stitutions principally devoted to religious exer7 cise.

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

9 a claim of a violation of the Free Exercise Clause or

10 this subsection in a non-Federal forum shall be enti11 tled to full faith and credit in a Federal court only

12 if the claimant had a full and fair adjudication of

13 that claim in the non-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 SEC. 4. JUDICIAL RELIEF.

18 (a) CAUSE OF ACTION.—A person may assert a viola19 tion of this Act as a claim or defense in a judicial pro20 ceeding and obtain appropriate relief against a govern21 ment. Standing to assert a claim or defense under this

22 section shall be governed by the general rules of standing

23 under article III of the Constitution.

24 (b) ATTORNEYS’ FEES.—Section 722(b) of the Re25 vised Statutes (42 U.S.C. 1988(b)) is amended—
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1 (1) by inserting ‘‘the Religious Liberty Protec2 tion Act of 2000,’’ after ‘‘Religious Freedom Res3 toration Act of 1993,’’; and

4 (2) by striking the comma that follows a

5 comma.

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

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

8 Prison Litigation Reform Act of 1995 (including provi9 sions of law amended by that Act).

10 (d) AUTHORITY OF UNITED STATES TO ENFORCE

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

12 injunctive or declaratory relief to enforce compliance with

13 this Act.

14 (e) SOVEREIGN IMMUNITY.—Nothing in this Act

15 shall be construed to abrogate the sovereign immunity of

16 a State.

17 SEC. 5. 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 for restricting or

23 burdening religious exercise or for claims against a reli24 gious organization, including any religiously affiliated

25 school or university, not acting under color of law.
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1 (c) CLAIMS TO FUNDING UNAFFECTED.—Nothing in

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

3 organization to receive funding or other assistance from

4 a government, or of any person to receive government

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

6 government to incur expenses in its own operations to

7 avoid imposing a burden or a substantial burden on reli8 gious exercise.

9 (d) OTHER AUTHORITY TO IMPOSE CONDITIONS ON

10 FUNDING UNAFFECTED.—Nothing in this Act shall—

11 (1) authorize a government to regulate or af12 fect, directly or indirectly, the activities or policies of

13 a person other than a government as a condition of

14 receiving funding or other assistance; or

15 (2) restrict any authority that may exist under

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

17 in this Act.

18 (e) GOVERNMENTAL DISCRETION IN ALLEVIATING

19 BURDENS ON RELIGIOUS EXERCISE.—A government may

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

21 changing the policy or practice that results in a substan22 tial burden on religious exercise, by retaining the policy

23 or practice and exempting the substantially burdened reli24 gious exercise, by providing exemptions from the policy or

25 practice for applications that substantially burden reli-
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1 gious exercise, or by any other means that eliminates the

2 substantial burden.

3 (f) EFFECT ON OTHER LAW.—With respect to a

4 claim brought to enforce section 2(a)(2), proof that a sub5 stantial burden on a person’s religious exercise, or removal

6 of that burden, affects or would affect commerce shall not

7 establish any inference or presumption that Congress in8 tends that any religious exercise is, or is not, subject to

9 any law other than this Act.

10 (g) BROAD CONSTRUCTION.—This Act shall be con11 strued in favor of a broad protection of religious exercise,

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

13 and the Constitution.

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

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

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

17 to be unconstitutional, the remainder of this Act, 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. 6. 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. As used in this section, the term ‘‘grant5 ing’’, used with respect to government funding, benefits,

6 or exemptions, does not include the denial of government

7 funding, benefits, or exemptions.

8 SEC. 7. AMENDMENTS TO RELIGIOUS FREEDOM RESTORA9 TION ACT.

10 (a) DEFINITIONS.—Section 5 of the Religious Free11 dom Restoration Act of 1993 (42 U.S.C. 2000bb–2) is

12 amended—

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

14 subdivision of a State’’ and inserting ‘‘a covered en15 tity or a subdivision of such an entity’’;

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

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

18 ‘covered entity’ means’’; and

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

20 ‘‘means,’’ and inserting ‘‘religious exercise, as de21 fined in section 8 of the Religious Liberty Protection

22 Act of 2000.’’.

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

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

25 2000bb–3(a)) is amended by striking ‘‘and State’’.
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1 SEC. 8. DEFINITIONS.

2 In this Act—

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

4 burdens of going forward with the evidence and of

5 persuasion;

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

7 that portion of the first amendment to the Constitu8 tion that proscribes laws prohibiting the free exercise

9 of religion and includes the application of that pro10 scription under the 14th amendment to the Con11 stitution;

12 (3) the term ‘‘government’’—

13 (A) means—

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

15 other governmental entity created under

16 the authority of a State;

17 (ii) any branch, department, agency,

18 instrumentality, subdivision, or official of

19 an entity listed in clause (i); and

20 (iii) any other person acting under

21 color of State law; and

22 (B) for the purposes of sections 3(a) and

23 5, includes the United States, a branch, depart24 ment, agency, instrumentality, subdivision, or

25 official of the United States, and any person

26 acting under color of Federal law;
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1 (4) the term ‘‘land use regulation’’ means a law

2 or decision by a government that limits or restricts

3 a private person’s use or development of land (in4 cluding a structure affixed to land), if—

5 (A) the law or decision applies to 1 or

6 more particular parcels of land or to land with7 in 1 or more designated geographical zones; and

8 (B) the private person has an ownership,

9 leasehold, easement, servitude, or other prop10 erty interest in the regulated land or a contract

11 or option to acquire such an interest;

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

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

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

15 (42 U.S.C. 2000d–4a); and

16 (6) the term ‘‘religious exercise’’—

17 (A) means any exercise of religion, whether

18 or not compelled by, or central to, a system of

19 religious belief; and

20 (B) includes—

21 (i) the use, building, or conversion of

22 real property by a person or entity intend23 ing that property to be used for religious

24 exercise; and
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1 (ii) any conduct protected as exercise

2 of religion under the first amendment to

3 the Constitution.

Calendar No. 436

106TH CONGRESS

2D SESSION S. 2081

A BILL

Entitled the ‘‘Religious Liberty Protection Act of

2000’’.

FEBRUARY 23, 2000

Read the second time and placed on the calendar