SP0485, LD 1340, item 1, An Act To Enact the Preservation of Religious Freedom Act

An Act To Enact the Preservation of Religious Freedom Act

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 5 MRSA c. 337-D is enacted to read:

CHAPTER 337-D

PRESERVATION OF RELIGIOUS FREEDOM ACT

§ 4801. Short title

This chapter may be known and cited as "the Preservation of Religious Freedom Act."

§ 4802. Findings

The Legislature makes the following findings:

1. Federal Constitution. The framers of the United States Constitution, recognizing free exercise of religion as a fundamental and unalienable right, secured its protection in the First Amendment of the United States Constitution;

2. State Constitution. The framers of the Constitution of Maine, recognizing free exercise of religion as a fundamental and unalienable right, secured its protection in the Constitution of Maine;

3. Exercise of religion burdened. Laws neutral toward religion may burden exercise of religion as surely as laws intended to interfere with religious exercise;

4. Compelling government interest. Government should not burden the free exercise of religion without a compelling governmental interest;

5. Effect of Supreme Court precedent. Prior to 1990, the United States Supreme Court recognized that laws burdening the free exercise of religion had to be justified by a compelling governmental interest. 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;

6. Reassertion of compelling interest test. The compelling interest test set forth in this Act and in federal as well as Maine court rulings prior to Employment Division v. Smith, including Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963), is a workable test for striking sensible balances between religious liberty and competing governmental interests; and

7. Role of legislative bodies to protect free exercise of religion. The United States Supreme Court's decision in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), indicates that legislative bodies may enact statutory law for their jurisdictions requiring that laws burdening the free exercise of religion be justified by a compelling governmental interest. Many states have done so, passing laws similar to this Act.

§ 4803. Purposes

The purposes of this Act are:

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

2. Provide claim or defense. To provide a claim or defense to a person or persons whose exercise of religion is substantially burdened.

§ 4804. Definitions

As used in this Act, unless the context otherwise indicates, the following terms have the following meanings.

1. Compelling governmental interest. "Compelling governmental interest" means a governmental interest of the highest magnitude.

2. Exercise of religion. "Exercise of religion" means the practice or observance of religion. "Exercise of religion" includes, but is not limited to, the ability to act or refuse to act in a manner substantially motivated by a person's sincerely held religious belief, whether or not the exercise of religion is compulsory or central to a larger system of religious belief.

3. Government. "Government" means the State, a political subdivision of the State and any local government, municipality, instrumentality or public official authorized by law in the State.

4. Substantially burden. "Substantially burden" means taking an action, including the implementation or application of a law, that directly or indirectly constrains, inhibits, curtails or denies the exercise of religion by a person or compels an action contrary to a person's exercise of religion. "Substantially burden" includes, but is not limited to, withholding benefits from a person, assessing criminal, civil or administrative penalties or excluding a person from government programs or access to government facilities.

§ 4805. Free exercise of religion protected

1. Substantial burden prohibited; exceptions. Government may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless applying the burden to that person's exercise of religion in this particular instance:

A. Is in furtherance of a compelling governmental interest; and

B. Is the least restrictive means of furthering that compelling governmental interest.

2. Claim or defense; relief. A person whose exercise of religion has been substantially burdened in violation of this Act may assert the violation as a claim or defense in a judicial proceeding. The person asserting such a claim or defense may obtain appropriate relief, including relief against the government. Appropriate relief includes, but is not limited to, injunctive relief, declaratory relief, compensatory damages and costs and attorney's fees.

summary

This bill enacts the Preservation of Religious Freedom Act. It codifies legislative findings that summarize the enshrinement of the right to the free exercise of religion in the United States Constitution and the Constitution of Maine and case law of the Maine Supreme Judicial Court and the United States Supreme Court interpreting the fundamental and unalienable right to the free exercise of religion, as well as the extent to which a legislative body can legislate in this area.

The Preservation of Religious Freedom Act has as its purpose the restoration of the compelling interest test as set forth in Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963). The Act guarantees the application of the compelling interest test in all cases in which the government substantially burdens the exercise of religion and provides a claim or defense to a person whose exercise of religion is burdened by the government.

The Act provides that the government may not directly or indirectly substantially burden a person's exercise of religion unless the application of the burden to the person is in furtherance of a compelling governmental interest and is accomplished through the least restrictive means.

The Act allows a person whose exercise of religion has been substantially burdened in violation of the Act to assert the violation as a claim or defense in a court action.

The Act's requirement that the government's infringement upon the free exercise of religion be justified by a compelling interest is similar to the requirement placed on the Federal Government through the Religious Freedom Restoration Act of 1993 and that of other states that have passed similar protections.

SP0485 LD 1340	Session - 127th Maine Legislature		LR 1267 Item 1
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