Highly Controversal Michigan Religious Freedom Bill Re-Introduced

SENATE BILL No. 4

January 20, 2015, Introduced by Senator SHIRKEY and referred to the Committee on Judiciary.

A bill to limit governmental action that substantially burdens

a person’s exercise of religion; to set forth legislative findings;

to provide for asserting a burden on exercise of religion as a

claim or defense in any judicial or administrative proceeding; and

to provide remedies.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. This act shall be known and may be cited as the

“Michigan religious freedom restoration act”.

Sec. 2. The legislature finds and declares all of the

following:

(a) The free exercise of religion is an inherent, fundamental,

and unalienable right secured by article 1 of the state

constitution of 1963 and the first amendment to the United States

constitution.

(b) Laws neutral toward religion may burden religious exercise

as surely as laws intended to interfere with religious exercise.

(c) Government should not substantially burden religious

exercise without compelling justification.

(d) In 1993, the congress of the United States enacted the

religious freedom restoration act to address burdens placed on the

exercise of religion in response to the United States supreme

court’s decision in Employment Division v Smith, 494 US 872 (1990),

which virtually eliminated the requirement that the government

justify burdens on religious exercise imposed by laws neutral

toward religion.

(e) In City of Boerne v P.F. Flores, 521 US 507 (1997), the

United States supreme court held that the religious freedom

restoration act of 1993 infringed on the legislative powers

reserved to the states under the United States constitution.

(f) The compelling interest test set forth in prior court

rulings, including Porth v Roman Catholic Diocese of Kalamazoo, 209

Mich App 630 (1995), is a workable test for striking sensible

balances between religious liberty and competing governmental

interests in this state.

Sec. 3. The purposes of this act are the following:

(a) To guarantee application of the compelling interest test,

as recognized by the United States supreme court in Sherbert v

Verner, 374 US 398 (1963); Wisconsin v Yoder, 406 US 205 (1972);

and Gonzales v O Centro Espirita Beneficiente Uniao do Vegetal, 546

US 418 (2006), to all cases where free exercise of religion is

substantially burdened by government.

(b) To provide a claim or defense to persons whose religious

exercise is substantially burdened by government.

Sec. 4. As used in this act:

(a) “Demonstrates” means meets the burdens of going forward

with the evidence and of persuasion.

(b) “Exercise of religion” means the practice or observance of

religion, including an act or refusal to act, that is substantially

motivated by a sincerely held religious belief, whether or not

compelled by or central to a system of religious belief.

(c) “Government” means any branch, department, agency,

division, bureau, board, commission, council, authority,

instrumentality, employee, official, or other entity of this state

or a political subdivision of this state, or a person acting under

color of law.

Sec. 5. (1) Except as provided in subsection (2), government

shall not substantially burden a person’s exercise of religion,

even if the burden results from a rule of general applicability.

(2) Government may substantially burden a person’s exercise of

religion only if it demonstrates that application of the burden to

that person’s exercise of religion in that particular instance is

both of the following:

(a) In furtherance of a compelling governmental interest.

(b) The least restrictive means of furthering that compelling

governmental interest.

(3) A person whose religious exercise has been burdened in

violation of this section may assert that violation as a claim or

defense in any judicial or administrative proceeding and obtain

appropriate relief, including equitable relief, against government.

(4) A court or tribunal may award all or a portion of the

costs of litigation, including reasonable attorney fees, to a

person who prevails against government under this section.

Sec. 6. (1) Section 5 applies to all laws of this state and of

a political subdivision of this state, and the implementation of

those laws, whether statutory or otherwise and whether adopted

before or after the effective date of this act, unless the law

explicitly excludes application by reference to this act.

(2) This act shall be construed in favor of broad protection

of religious exercise to the maximum extent permitted by the terms

of this act, the state constitution of 1963, and the United States

constitution.

(3) Nothing in this act shall be construed to authorize any

burden on any religious belief.

(4) Nothing in this act shall be construed to preempt or

repeal any law that is equally or more protective of religious

exercise than this act.

(5) Nothing in this act shall be construed to affect,

interpret, or in any way address those portions of the United

States constitution or the state constitution of 1963 that prohibit

laws respecting the establishment of religion. Granting government

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

those constitutional provisions, is not a violation of this act. As

used in this subsection, the term “granting”, used with respect to

government funding, benefits, or exemptions, does not include the

denial of government funding, benefits, or exemptions.

Sec. 7. If any provision of this act or any application of

such a provision to any person or circumstance is held to be

unconstitutional, the remainder of this act and the application of

the provision to any other person or circumstance is not affected.