Religious Freedom Action in Mississippi (2016)
Mississippi’s House Bill 1523

http://billstatus.ls.state.ms.us/2016/pdf/history/HB/HB1523.xml

MISSISSIPPI LEGISLATURE

2016 Regular Session

To: Judiciary B

By: Representatives Gunn, Arnold, Bounds, Carpenter, Gipson, Shirley, Boyd, Eubanks

House Bill 1523

(As Sent to Governor)

AN ACT TO CREATE THE “PROTECTING FREEDOM OF CONSCIENCE FROM GOVERNMENT DISCRIMINATION ACT”; TO PROVIDE CERTAIN PROTECTIONS REGARDING A SINCERELY HELD RELIGIOUS BELIEF OR MORAL CONVICTION FOR PERSONS, RELIGIOUS ORGANIZATIONS AND PRIVATE ASSOCIATIONS; TO DEFINE A DISCRIMINATORY ACTION FOR PURPOSES OF THIS ACT; TO PROVIDE THAT A PERSON MAY ASSERT A VIOLATION OF THIS ACT AS A CLAIM AGAINST THE GOVERNMENT; TO PROVIDE CERTAIN REMEDIES; TO REQUIRE A PERSON BRINGING A CLAIM UNDER THIS ACT TO DO SO NOT LATER THAN TWO YEARS AFTER THE DISCRIMINATORY ACTION WAS TAKEN; TO PROVIDE CERTAIN DEFINITIONS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  This act shall be known and may be cited as the “Protecting Freedom of Conscience from Government Discrimination Act.”

     SECTION 2.  The sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

(a)  Marriage is or should be recognized as the union of one man and one woman;

(b)  Sexual relations are properly reserved to such a marriage; and

(c)  Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.

     SECTION 3.  (1)  The state government shall not take any discriminatory action against a religious organization wholly or partially on the basis that such organization:

(a)  Solemnizes or declines to solemnize any marriage, or provides or declines to provide services, accommodations, facilities, goods or privileges for a purpose related to the solemnization, formation, celebration or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act;

(b)  Makes any employment-related decision including, but not limited to, the decision whether or not to hire, terminate or discipline an individual whose conduct or religious beliefs are inconsistent with those of the religious organization, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act; or

(c)  Makes any decision concerning the sale, rental, occupancy of, or terms and conditions of occupying a dwelling or other housing under its control, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act.

     (2)  The state government shall not take any discriminatory action against a religious organization that advertises, provides or facilitates adoption or foster care, wholly or partially on the basis that such organization has provided or declined to provide any adoption or foster care service, or related service, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section2 of this act.

(3)  The state government shall not take any discriminatory action against a person who the state grants custody of a foster or adoptive child, or who seeks from the state custody of a foster or adoptive child, wholly or partially on the basis that the person guides, instructs or raises a child, or intends to guide, instruct, or raise a child based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act.

(4)  The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person declines to participate in the provision of treatments, counseling, or surgeries related to sex reassignment or gender identity transitioning or declines to participate in the provision of psychological, counseling, or fertility services based upon a sincerely held religious belief or moral conviction described in Section 2 of this act.  This subsection (4) shall not be construed to allow any person to deny visitation, recognition of a designated representative for health care decision-making, or emergency medical treatment necessary to cure an illness or injury as required by law.

(5)  The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person has provided or declined to provide the following services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration, or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act:

(a)  Photography, poetry, videography, disc-jockey services, wedding planning, printing, publishing or similar marriage-related goods or services; or

(b)  Floral arrangements, dress making, cake or pastry artistry, assembly-hall or other wedding-venue rentals, limousine or other car-service rentals, jewelry sales and services, or similar marriage-related services, accommodations, facilities or goods.

(6)  The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person establishes sex-specific standards or policies concerning employee or student dress or grooming, or concerning access to restrooms, spas, baths, showers, dressing rooms, locker rooms, or other intimate facilities or settings, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act.

(7)  The state government shall not take any discriminatory action against a state employee wholly or partially on the basis that such employee lawfully speaks or engages in expressive conduct based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act, so long as:

(a)  If the employee’s speech or expressive conduct occurs in the workplace, that speech or expressive conduct is consistent with the time, place, manner and frequency of any other expression of a religious, political, or moral belief or conviction allowed; or

(b)  If the employee’s speech or expressive conduct occurs outside the workplace, that speech or expressive conduct is in the employee’s personal capacity and outside the course of performing work duties.

(8)  (a)  Any person employed or acting on behalf of the state government who has authority to authorize or license marriages, including, but not limited to, clerks, registers of deeds or their deputies, may seek recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act.  Any person making such recusal shall provide prior written notice to the State Registrar of Vital Records who shall keep a record of such recusal, and the state government shall not take any discriminatory action against that person wholly or partially on the basis of such recusal.  The person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.

(b)  Any person employed or acting on behalf of the state government who has authority to perform or solemnize marriages, including, but not limited to, judges, magistrates, justices of the peace or their deputies, may seek recusal from performing or solemnizing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act.  Any person making such recusal shall provide prior written notice to the Administrative Office of Courts, and the state government shall not take any discriminatory action against that person wholly or partially on the basis of such recusal.  The Administrative Office of Courts shall take all necessary steps to ensure that the performance or solemnization of any legally valid marriage is not impeded or delayed as a result of any recusal.

     SECTION 4.  (1)  As used in this act, discriminatory action includes any action taken by the state government to:

(a)  Alter in any way the tax treatment of, or cause any tax, penalty, or payment to be assessed against, or deny, delay, revoke, or otherwise make unavailable an exemption from taxation of any person referred to in Section 3 of this act;

(b)  Disallow, deny or otherwise make unavailable a deduction for state tax purposes of any charitable contribution made to or by such person;

(c)  Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any state grant, contract, subcontract, cooperative agreement, guarantee, loan, scholarship, or other similar benefit from or to such person;

(d)  Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any entitlement or benefit under a state benefit program from or to such person;

(e)  Impose, levy or assess a monetary fine, fee, penalty or injunction;

(f)  Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any license, certification, accreditation, custody award or agreement, diploma, grade, recognition, or other similar benefit, position, or status from or to any person; or

(g)  Refuse to hire or promote, force to resign, fire, demote, sanction, discipline, materially alter the terms or conditions of employment, or retaliate or take other adverse employment action against a person employed or commissioned by the state government.

(2)  The state government shall consider accredited, licensed or certified any person that would otherwise be accredited, licensed or certified, respectively, for any purposes under state law but for a determination against such person wholly or partially on the basis that the person believes, speaks or acts in accordance with a sincerely held religious belief or moral conviction described in Section 2 of this act.

     SECTION 5.  (1)  A person may assert a violation of this act as a claim against the state government in any judicial or administrative proceeding or as defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the state government, any private person or any other party.

(2)  An action under this act may be commenced, and relief may be granted, in a court of the state without regard to whether the person commencing the action has sought or exhausted available administrative remedies.

     (3)  Violations of this act which are properly governed by Chapter 46, Title 11, Mississippi Code of 1972, shall be brought in accordance with that chapter.

     SECTION 6.  An aggrieved person must first seek injunctive relief to prevent or remedy a violation of this act or the effects of a violation of this act.  If injunctive relief is granted by the court and the injunction is thereafter violated, then and only then may the aggrieved party, subject to the limitations of liability set forth in Section 11-46-15, seek the following:

(a)  Compensatory damages for pecuniary and nonpecuniary losses;

(b)  Reasonable attorneys’ fees and costs; and

(c)  Any other appropriate relief, except that only declaratory relief and injunctive relief shall be available against a private person not acting under color of state law upon a successful assertion of a claim or defense under this act.

     SECTION 7.  A person must bring an action to assert a claim under this act not later than two (2) years after the date that the person knew or should have known that a discriminatory action was taken against that person.

     SECTION 8.  (1)  This act shall be construed in favor of a broad protection of free exercise of religious beliefs and moral convictions, to the maximum extent permitted by the state and federal constitutions.

(2)  The protection of free exercise of religious beliefs and moral convictions afforded by this act are in addition to the protections provided under federal law, state law, and the state and federal constitutions.  Nothing in this act shall be construed to preempt or repeal any state or local law that is equally or more protective of free exercise of religious beliefs or moral convictions.  Nothing in this act shall be construed to narrow the meaning or application of any state or local law protecting free exercise of religious beliefs or moral convictions.  Nothing in this act shall be construed to prevent the state government from providing, either directly or through an individual or entity not seeking protection under this act, any benefit or service authorized under state law.

(3)  This act applies to, and in cases of conflict supersedes, each statute of the state that impinges upon the free exercise of religious beliefs and moral convictions protected by this act, unless a conflicting statute is expressly made exempt from the application of this act.  This act also applies to, and in cases of conflict supersedes, any ordinance, rule, regulation, order, opinion, decision, practice or other exercise of the state government’s authority that impinges upon the free exercise of religious beliefs or moral convictions protected by this act.

     SECTION 9.  As used in Sections 1 through 9 of this act, the following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:

(1)  “State benefit program” means any program administered or funded by the state, or by any agent on behalf of the state, providing cash, payments, grants, contracts, loans or in-kind assistance.

(2)  “State government” means:

(a)  The State of Mississippi or a political subdivision of the state;

(b)  Any agency of the state or of a political subdivision of the state, including a department, bureau, board, commission, council, court or public institution of higher education;

(c)  Any person acting under color of state law; and

(d)  Any private party or third party suing under or enforcing a law, ordinance, rule or regulation of the state or political subdivision of the state.

(3)  “Person” means:

(a)  A natural person, in his or her individual capacity, regardless of religious affiliation or lack thereof, or in his or her capacity as a member, officer, owner, volunteer, employee, manager, religious leader, clergy or minister of any entity described in this section;

(b)  A religious organization;

(c)  A sole proprietorship, or closely held company, partnership, association, organization, firm, corporation, cooperative, trust, society or other closely held entity operating with a sincerely held religious belief or moral conviction described in this act; or

(d)  Cooperatives, ventures or enterprises comprised of two (2) or more individuals or entities described in this subsection.

(4)  “Religious organization” means:

(a)  A house of worship, including, but not limited to, churches, synagogues, shrines, mosques and temples;

(b)  A religious group, corporation, association, school or educational institution, ministry, order, society or similar entity, regardless of whether it is integrated or affiliated with a church or other house of worship; and

(c)  An officer, owner, employee, manager, religious leader, clergy or minister of an entity or organization described in this subsection (4).

(5)  “Adoption or foster care” or “adoption or foster care service” means social services provided to or on behalf of children, including:

(a)  Assisting abused or neglected children;

(b)  Teaching children and parents occupational, homemaking and other domestic skills;

(c)  Promoting foster parenting;

(d)  Providing foster homes, residential care, group homes or temporary group shelters for children;

(e)  Recruiting foster parents;

(f)  Placing children in foster homes;

(g)  Licensing foster homes;

(h)  Promoting adoption or recruiting adoptive parents;

(i)  Assisting adoptions or supporting adoptive families;

(j)  Performing or assisting home studies;

(k)  Assisting kinship guardianships or kinship caregivers;

(l)  Providing family preservation services;

(m)  Providing family support services; and

(n)  Providing temporary family reunification services.

     SECTION 10.  The provisions of Sections 1 through 9 of this act shall be excluded from the application of Section 11-61-1.

     SECTION 11.  This act shall take effect and be in force from and after July 1, 2016.

View PDF of Mississippi HB1523SG

Mississippi Religious Freedom Restoration Act

 SECTION 1.  (1)  This act shall be known and may be cited as the Mississippi Religious Freedom Restoration Act.

(2)  The Mississippi Legislature finds the following:

(a)  The framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the 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 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; and

(e)  The compelling interest test as set forth in prior federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

(3)  The purposes of this section are as follows:

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

(b)  To provide a claim or defense to persons whose religious exercise is substantially burdened by government.

(4)  As used in this section, the following words shall have the following meanings:

(a)  “Government” means any branch, department, agency, instrumentality or political subdivision of the State of Mississippi and any official or other person acting under color of law of the State of Mississippi.

(b)  “Demonstrates” means to meet the burdens of going forward with the evidence and of persuasion.

(c)  “Exercise of religion” means the exercise of religion under the First Amendment to the Constitution.

(5)  (a)  Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in paragraph (b) of this subsection.

(b)  Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person:

(i)  Is in furtherance of a compelling governmental interest; and

(ii)  Is the least restrictive means of furthering that compelling governmental interest.

(6)  A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the government, as defined by subsection (4) of this section.  Standing to assert a claim or defense under this section shall be the same as the general rules of standing under Article III of the United States Constitution.

(7)  (a)  This section applies to all state laws, rules, regulations and any municipal or county ordinances, rules or regulations and the implementation of those laws, whether statutory or otherwise, and whether adopted before or after the enactment of this section.

(b)  Any such law, rule, regulation or ordinances adopted after the effective date of this section shall be subject to this section unless such law explicitly excludes such application by reference to this section.

(8)  Nothing in this act shall be construed to authorize any government to burden any religious belief.

(9)  Nothing in this section shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion.  Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this section.  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.

(10)  Nothing in this act shall create any rights by an employee against an employer if the employer is not the government.

SECTION 2.  It shall be the duty of the Secretary of State to procure the official seal of this state as described in this section.

The center of the seal shall have an eagle displayed proper, holding an olive branch in his dexter talon and a bundle of three (3) arrows in his sinister talon.  The shield on the breast of the eagle shall have eleven (11) vertical stripes of alternating white and red, supporting a chief of blue with eleven (11) white five-pointed stars in two (2) rows with five (5) stars in each row and one (1) star centered over the third column.

The margins dexter and sinister of the center point of the shield shall each have one (1) white five-pointed star.  The margin over the eagle shall have the inscription “THE GREAT SEAL OF THE STATE OF MISSISSIPPI.”  The margin under the eagle shall have the inscription “IN GOD WE TRUST.”

The official seal need not be printed or otherwise displayed in color.

     SECTION 3.  All state agencies shall continue to use stationery and other supplies having the great seal thereon as it existed before July 1, 2014, until such stationery and other supplies are depleted.  The great seal as it existed before July 1, 2014, affixed on any public buildings, property or any other item shall remain thereon until the replacement of the seal due to normal wear or until replacement with any nonpublic funds.

SECTION 4.  The 1818 Mississippi Laws, Act of January 19, 1818, Page 142, which provided for the description of the seal of the state, is hereby repealed.

     SECTION 5.  This act shall take effect and be in force from and after July 1, 2014.

News

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Mississippi Senate OKs Adding ‘In God We Trust’ To Seal

The bill is called the “Mississippi Religious Freedom Restoration Act,” and it says government may not burden a person’s right to practice religion.