Current Law: S.C. Code Ann. § 1-32-10 to -60 (1999)

Enacted: June 1, 1999

§ 1-32-10. Short title.

This chapter may be cited as the “South Carolina Religious Freedom Act”.

§ 1-32-20. Definitions.

  • In this chapter:
    • (1)  “Demonstrates” means meets the burdens of going forward with the evidence and of persuasion.
    • (2)  “Exercise of religion” means the exercise of religion under the First Amendment to the United States Constitution or Article I, Section 2 of the State Constitution.
    • (3)  “Person” includes, but is not limited to, an individual, corporation, firm, partnership, association, or organization.
    • (4)  “State” means the State of South Carolina and any political subdivision of the State and includes a branch, department, agency, board, commission, instrumentality, entity, or officer, employee, official of the State or a political subdivision of the State, or any other person acting under color of law.

§ 1-32-30. Purposes of chapter.

  • The purposes of this chapter are to:
    • (1)  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 that a test of compelling state interest will be imposed on all state and local laws and ordinances in all cases in which the free exercise of religion is substantially burdened; and
    • (2)  provide a claim or defense to persons whose exercise of religion is substantially burdened by the State.

§ 1-32-40. Restriction on state’s ability to burden exercise of religion.

  • The State may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the State demonstrates that application of the burden to the person is:
    • (1)  in furtherance of a compelling state interest; and
    • (2)  the least restrictive means of furthering that compelling state interest.

§ 1-32-45. Inmate litigation.

This chapter does not affect the application of and must be applied in conjunction with Chapter 27 of Title 24, concerning inmate litigation.

§ 1-32-50. Burden on exercise of religion a claim or defense; attorney’s fees.

If a person’s exercise of religion has been burdened in violation of this chapter, the person may assert the violation as a claim or defense in a judicial proceeding. If the person prevails in such a proceeding, the court shall award attorney’s fees and costs.

§ 1-32-60. Applicability; construction.

  • (A)  This chapter applies to all state and local laws and ordinances and the implementation of those laws and ordinances, whether statutory or otherwise, and whether adopted before or after the effective date of this act.
  • (B)  Nothing in this chapter may be construed to authorize the State to burden any religious belief.
  • (C)  Nothing in this chapter may be construed to affect, interpret, or in any way address:
    • (1)  that portion of the First Amendment of the United States Constitution prohibiting laws respecting the establishment of religion;
    • (2)  that portion of Article I, Section 2 of the State Constitution prohibiting laws respecting the establishment of religion.
  • (D)  Granting state funding, benefits, or exemptions, to the extent permissible under the constitutional provisions enumerated in subsection (C)(1) and (2), does not constitute a violation of this chapter.As used in this subsection, “granting”, with respect to state funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

Pending 2015 Legislation

Same-Sex Marriage Exemption: S. 116

A BILL

TO AMEND SECTION 20-1-230 OF THE 1976 CODE, RELATING TO MARRIAGE LICENSES, TO PROVIDE THAT NO PERSON EMPLOYED BY A JUDGE OF PROBATE OR CLERK OF COURT SHALL BE REQUIRED TO TAKE ANY ACTION RELATED TO THE ISSUANCE OF A MARRIAGE LICENSE TO A SAME SEX COUPLE IF THE OBJECTION TO TAKING SUCH ACTION IS BASED UPON A SINCERELY HELD RELIGIOUS BELIEF, TO PROVIDE THAT THERE WILL BE NO LIABILITY FOR DAMAGES ARISING FROM SUCH REFUSAL, TO PROHIBIT DISMISSAL, SUSPENSION, DEMOTION, DISCIPLINE, OR DISCRIMINATION BY THE JUDGE OF PROBATE OR THE CLERK OF COURT AGAINST THE EMPLOYEE FOR SUCH REFUSAL, AND TO PROVIDE FOR A CIVIL ACTION FOR DAMAGES OR REINSTATEMENT OF EMPLOYMENT, OR BOTH, WHERE EMPLOYMENT HAS BEEN ALTERED OR TERMINATED IN VIOLATION OF SECTION.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 20-1-230 of the 1976 Code is amended to read:

“Section 20-1-230.    (A)    The judge of probate or clerk of court with whom a marriage license application was filed shall issue a license upon:

(1) the filing of the application required under the provisions of Section 20-1-220;

(2) the lapse of at least twenty-four hours thereafter;

(3) the payment of the fee provided by law; and

(4) the filing of a statement, under oath or affirmation, to the effect that the persons seeking the contract of matrimony are legally entitled to marry, together with the full names of the persons, their ages, and places of residence

(B) No person employed by a judge of probate or clerk of court or any other officer authorized by law to issue a marriage license shall be:

(1) required to take any action related to the issuance of a marriage license to a same sex couple, if he advises the judge of probate or clerk of court in writing that he objects to taking such action based upon a sincerely held religious belief;

(2) liable to any person for damages allegedly arising from such refusal; or

(3) dismissed, suspended, demoted, or otherwise disciplined or discriminated against by the judge of probate or the clerk of court by which he is employed. A civil action for damages or reinstatement of employment, or both, may be prosecuted by any person whose employment has been altered or terminated in violation of this subsection.

(B)(C) A man and a woman who successfully complete a qualifying premarital preparation course and who have a South Carolina marriage license which attests the completion of the course shall be entitled to receive a one-time fifty-dollar nonrefundable state income tax credit, as permitted in Section 12-6-3381. In order for the course to qualify pursuant to this section, the couple must:

(1) attend a course taught by a professional counselor who is licensed pursuant to Chapter 75 of Title 40 or by an active member of the clergy in the course of his or her service as clergy or his or her designee, including retired clergy, provided that the designee is trained and skilled in premarital preparation;

(2) attend a minimum of six hours of instruction;

(3) complete the course within twelve months prior to the application for a marriage license; and

(4) complete the course together rather than individually.

A couple who completes a premarital preparation course pursuant to this section must be issued a certification of completion at the conclusion of the course by their course provider. The certification must include the number of hours that the couple completed together and the credentials of the course provider. A couple must produce this certification when applying for the marriage license in order to receive the non-refundable state income tax credit. The judge of probate or clerk of court must certify on the marriage license that the couple met the statutory requirements to qualify for this income tax credit. The judge of probate court or clerk of court is not responsible to authenticate the information contained in the certification of completion unless the certification of completion is wholly fraudulent on its face.

(C)(D) The discount authorized by this section must not be applied to the fee credited to the Domestic Violence Fund provided for in Section 20-1-375.”

SECTION    2.    This act takes effect upon approval by the Governor.

News

Trudy Ring, S.C. Bill Would Let Officials Refuse Same-Sex Marriage Licenses, Advocate.com

The legislation would protect public employees from punishment if they cite religious beliefs in denying marriage licenses to same-sex couples.