II 118th CONGRESS 1st Session S. 492 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. Short title This Act may be cited as the Conscience Objections to Negligent State COVID–19 Inoculation Edicts Need Constitutional Enforcement Act of 2023 or the CONSCIENCE Act of 2023 . 2. Findings and purpose (a) Findings Congress finds the following: (1) In response to the COVID–19 pandemic, State and local governments and private sector entities have implemented unprecedented public health requirements, including requirements that their employees, customers, and other persons receive a COVID–19 vaccine (referred to in this section as COVID–19 vaccine mandates ), resulting in millions of Americans being subject to such requirements. (2) Many COVID–19 vaccine mandates, due to their unprecedented magnitude and scope of application, and the unprecedented haste of and inattention to the religious exercise of persons subject to the mandates by the organizations implementing them, do not adequately protect the religious freedom of the persons subject to them. (3) As a result, millions of Americans have objected to COVID–19 vaccine mandates—more than for any other medical requirement for employment or for use of a public accommodation in recent history—often at great personal cost, on the basis that receiving a COVID–19 vaccine would violate their sincerely held religious beliefs. (4) COVID–19 vaccine mandates commonly threaten the rights of employees and other persons to religious exercise by requiring persons subject to the mandates to— (A) receive a COVID–19 vaccine (with respect to private entities, often under the color of law), in violation of their sincerely held religious beliefs; or (B) otherwise face substantial burdens such as the loss of employment, pay, or status within employment, the subjection to punitive personal public health measures, or any other loss caused by a failure to accommodate religious exercise. (5) With respect to COVID–19 vaccine mandates implemented by the States and the District of Columbia, the rights of persons under the First Amendment to the Constitution of the United States who are subject to such requirements have been violated in the following ways: (A) COVID–19 vaccine mandates for State employees in the States of New York, Maine, and Rhode Island have allowed for medical exemptions from the COVID–19 vaccine, but have not allowed for religious exemptions. (B) The Governor of New York has stated that— (i) New York intentionally excluded religious exemptions from the COVID–19 vaccination mandate; and (ii) the Governor was unaware of any organized religion that seeks religious exemptions for the COVID–19 vaccine and those individuals who seek such an exemption are not listening to God and what God wants; . (C) New York has allowed COVID–19 vaccinated workers with symptomatic, active COVID–19 infections to continue working in hospitals, but has not allowed religious objectors who do not have COVID–19 to work in hospitals. (D) Maine removed the allowance for religious exemptions for health care workers, effective September 1, 2021, in a law requiring all health care workers to receive the COVID–19 vaccine and influenza vaccine. (E) Rhode Island omitted religious exemptions to COVID–19 vaccines. (F) In Rhode Island, health care workers have been required to receive the COVID–19 vaccine, and health care facilities are required to deny entry to health care workers or providers who are not fully vaccinated. (6) With respect to COVID–19 vaccine mandates implemented by private sector entities, United Airlines instituted an absolute policy requiring all employees to receive the COVID–19 vaccine, and those who submitted requests for religious exemptions were either automatically denied or placed on unpaid leave with no benefits. (7) COVID–19 vaccine mandates that do not accommodate religious exercise have resulted in labor shortages that affect interstate and foreign commerce. (8) According to a report by the Committee on Small Business and Entrepreneurship of the Senate, the Federal COVID–19 vaccine requirement put an estimated 44,900,000 Americans at risk of losing their jobs owing to their refusal to receive a COVID–19 vaccine. A substantial number of those refusals may be attributed to religious objections, as according to a survey by the Public Religion Research Institute, 10 percent of Americans believe that receiving a COVID–19 vaccine would conflict with their religious beliefs. (9) In Doe v. Mills, 142 S. Ct. 17 (2021) and Dr. A. v. Hochul, 142 S. Ct. 552 (2021), the Supreme Court denied the requests of employees requesting religious exemptions to COVID–19 vaccine mandates, causing those employees to face irreparable harm. (10) The Free Exercise Clause of the First Amendment to the Constitution protects rights of individuals to live out their religious beliefs publicly through religious exercise. (11) Congress has the power to enforce the right to free exercise of religion, through remedial measures under section 5 of the 14th Amendment to the Constitution. (12) Laws that protect the free exercise of religious beliefs are consistent with the founding principles of the United States and protections under the First Amendment to the Constitution. (13) Congress has the power to regulate interstate and foreign commerce under the Commerce Clause of section 8 of article I of the Constitution. (b) Purpose The purpose of this Act is to preempt laws and disallow practices that discriminate against persons due to their religious exercise. 3. Definitions In this Act: (1) Covered person The term covered person means a person raising a claim or defense under this Act. (2) COVID–19 vaccine mandate The term COVID–19 vaccine mandate means a mandate that an individual receive a COVID–19 vaccine. (3) Demonstrates The term demonstrates means meets the burdens of going forward with the evidence and of persuasion. (4) Free exercise clause The term Free Exercise Clause means that portion of the First Amendment to the Constitution of the United States that proscribes laws prohibiting the free exercise of religion. (5) Government The term government — (A) means— (i) a State, county, municipality, or other governmental entity created under the authority of a State; (ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and (iii) any other person acting under color of State law; and (B) for the purpose of sections 5(b) and 6, includes— (i) the United States; (ii) any branch, department, agency, instrumentality, or official of the United States; and (iii) any other person acting under color of Federal law. (6) Program or activity The term program or activity means all of the operations of any entity as described in paragraph (1) or (2) of section 606 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d–4a ), any part of which is extended Federal financial assistance. (7) Religious exercise (A) In general The term religious exercise includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief. (B) Rule (i) Person In the case of a person, refusing to receive a COVID–19 vaccine on the basis of a sincerely held religious belief shall be considered to be religious exercise of the person. (ii) Entity In the case of an entity, refusing on the basis of a sincerely held religious belief to require that any employee, customer, or other person affiliated with the entity receive a COVID–19 vaccine mandate shall be considered to be religious exercise of the entity. 4. Protection of religious liberty and exercise by exemptions for the COVID–19 vaccine (a) Substantial Burdens (1) General rule No government shall impose or implement a COVID–19 vaccine mandate in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person’s, assembly’s, or institution’s religious exercise— (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. (2) Scope of application This subsection and subsection (b) apply in any case in which— (A) the substantial burden is imposed by State law, even if the burden results from a rule of general applicability; (B) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability; (C) the substantial burden is imposed by an entity that operates a workplace and that is party to or conducts work in connection with a contract or contract-like instrument with any government, even if the burden results from a rule of general applicability; (D) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian Tribes, even if the burden results from a rule of general applicability; or (E) the substantial burden is imposed in the implementation of a COVID–19 vaccine mandate, under which the government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of COVID–19 vaccine exemptions, even if the burden results from a rule of general applicability. (b) Discrimination and exclusion (1) Equal terms No government shall impose or implement a COVID–19 vaccine mandate in a manner that treats a religious exercise (including a condition) on less than equal terms with a nonreligious exercise (including a condition). (2) Nondiscrimination No government shall impose or implement a COVID–19 vaccine mandate that imposes a substantial burden on any person for an exercise on the basis of religion, including a religious denomination. (3) Exclusions and limits No government shall impose or implement a COVID–19 vaccine mandate that— (A) totally excludes religious exemptions; or (B) unreasonably limits religious exemptions. 5. Judicial relief (a) Cause of action A covered person may assert an actual or threatened violation of this Act by a government as a claim or defense in a judicial or administrative proceeding and obtain compensatory damages, injunctive relief, declaratory relief, or any other appropriate relief against the government involved. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution. (b) Burden of persuasion If a covered person produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 4, the government shall bear the burden of persuasion on any element of the claim, except that the covered person shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the covered person’s exercise of religion. (c) Administrative remedies not required Notwithstanding any other provision of law, an action under this section may be commenced, and relief may be granted, in a district court of the United States without regard to whether the covered person commencing the action has sought or exhausted available administrative remedies. (d) Full faith and credit Adjudication of a claim of a violation of section 4 in a non-Federal forum shall not be entitled to full faith and credit in a Federal court unless the claimant had a full and fair adjudication of that claim in the non-Federal forum. (e) Attorneys’ fees Section 722(b) of the Revised Statutes ( 42 U.S.C. 1988(b) ) is amended by inserting the CONSCIENCE Act of 2023, after the Religious Land Use and Institutionalized Persons Act of 2000, . (f) Authority of United States To enforce this Act The United States may bring an action for injunctive or declaratory relief to enforce compliance with this Act. Nothing in this subsection shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General, the United States, or any agency, officer, or employee of the United States, acting under any law other than this subsection, to institute or intervene in any proceeding. 6. Rules of construction (a) Religious belief unaffected Nothing in this Act shall be construed to authorize any government to burden any religious belief. (b) Religious exercise not regulated Nothing in this Act shall create any basis— (1) for restricting or burdening religious exercise; or (2) for claims against a religious organization, including any religiously affiliated school or institution of higher education, not acting under color of law. (c) Claims to funding unaffected Nothing in this Act shall create or preclude a right of any religious organization to receive funding or other assistance from a government, or of any person to receive government funding for a religious activity, but this Act may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise. (d) Governmental discretion in alleviating burdens on religious exercise A government may avoid the preemptive force of any provision of this Act by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden. (e) Effect on other law With respect to a claim brought under this Act, proof that a substantial burden on a person’s religious exercise affects, or removal of that burden would affect, commerce with foreign nations, among the several States, or with Indian Tribes, shall not establish any inference or presumption that any religious exercise is, or is not, subject to any law other than this Act. (f) Broad construction This Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution. (g) No preemption or repeal Nothing in this Act shall be construed to preempt State law, or repeal Federal law, that is equally as protective of religious exercise as, or more protective of religious exercise than, this Act. (h) Severability If any provision of this Act or an amendment made by this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act and the amendments made by this Act, and the application of the provision to any other person or circumstance shall not be affected. 7. Establishment clause unaffected Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment to the Constitution prohibiting laws respecting an establishment of religion (referred to in this section as the Establishment Clause ). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this Act. In this section, the term granting , used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. 8. Applicability This Act applies to any COVID–19 vaccine mandate, whether adopted before, on, or after the date of enactment of this Act.