[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2148 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 2148

                     To protect religious liberty.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 9, 1998

Mr. Hatch (for himself and Mr. Kennedy) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
                     To protect religious liberty.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Religious Liberty Protection Act of 
1998''.

SEC. 2. PROTECTION OF RELIGIOUS EXERCISE.

    (a) General Rule.--Except as provided in subsection (b), a 
government shall not substantially burden a person's religious 
exercise--
            (1) in a program or activity, operated by a government, 
        that receives Federal financial assistance; or
            (2) in or affecting commerce with foreign nations, among 
        the several States, or with the Indian tribes;
even if the burden results from a rule of general applicability.
    (b) Exception.--A government may substantially burden a person's 
religious exercise if the government demonstrates that application of 
the burden to the person--
            (1) is in furtherance of a compelling governmental 
        interest; and
            (2) is the least restrictive means of furthering that 
        compelling governmental interest.
    (c) Funding Not Affected.--Nothing in this section shall be 
construed to authorize the United States to deny or withhold Federal 
financial assistance as a remedy for a violation of this Act.
    (d) State Policy Not Commandeered.--A government may eliminate the 
substantial burden on religious exercise by changing the policy that 
results in the burden, by retaining the policy and exempting the 
religious exercise from that policy, or by any other means that 
eliminates the burden.
    (e) Definitions.--As used in this section--
            (1) the term ``government'' means a branch, department, 
        agency, instrumentality, subdivision, or official of a State 
        (or other person acting under color of State law);
            (2) the term ``program or activity'' means a program or 
        activity as defined in paragraph (1) or (2) of section 606 of 
        the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a); and
            (3) the term ``demonstrates'' means meets the burdens of 
        going forward with the evidence and of persuasion.

SEC. 3. ENFORCEMENT OF THE FREE EXERCISE CLAUSE.

    (a) Procedure.--If a claimant produces prima facie evidence to 
support a claim of a violation of the Free Exercise Clause, the 
government shall bear the burden of persuasion on all issues relating 
to the claim, except any issue as to the existence of the burden on 
religious exercise.
    (b) Land Use Regulation.--
            (1) Limitation on land use regulation.--No government shall 
        impose a land use regulation that--
                    (A) substantially burdens religious exercise, 
                unless the burden is the least restrictive means to 
                prevent substantial and tangible harm to neighboring 
                properties or to the public health or safety;
                    (B) denies religious assemblies a reasonable 
                location in the jurisdiction; or
                    (C) excludes religious assemblies from areas in 
                which nonreligious assemblies are permitted.
            (2) Full faith and credit.--Adjudication of a claim of a 
        violation of this subsection in a non-Federal forum shall be 
        entitled to full faith and credit in a Federal court only if 
        the claimant had a full and fair adjudication of that claim in 
        the non-Federal forum.
            (3) Nonpreemption.--Nothing in this subsection shall 
        preempt State law that is equally or more protective of 
        religious exercise.
            (4) Nonapplication of other portions of this act.--Section 
        2 does not apply to land use regulation.

SEC. 4. JUDICIAL RELIEF.

    (a) Cause of Action.--A person may assert a violation of this Act 
as a claim or defense in a judicial proceeding and obtain appropriate 
relief against a government. 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) Attorneys' Fees.--Section 722(b) of the Revised Statutes (42 
U.S.C. 1988(b)) is amended--
            (1) by inserting ``the Religious Liberty Protection Act of 
        1998,'' after ``Religious Freedom Restoration Act of 1993,''; 
        and
            (2) by striking the comma that follows a comma.
    (c) Prisoners.--Any litigation under this Act in which the claimant 
is a prisoner shall be subject to the Prison Litigation Reform Act of 
1995 (including provisions of law amended by that Act).
    (d) Liability of Governments.--
            (1) Liability of states.--A State shall not be immune under 
        the 11th amendment to the Constitution from a civil action, for 
        a violation of the Free Exercise Clause under section 3, 
        including a civil action for money damages.
            (2) Liability of the united states.--The United States 
        shall not be immune from any civil action, for a violation of 
        the Free Exercise Clause under section 3, including a civil 
        action for money damages.

SEC. 5. 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 for regulation of religious exercise or for claims 
against a religious organization, including any religiously affiliated 
school or university, 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 
government to incur expenses in its own operations to avoid imposing a 
burden or a substantial burden on religious exercise.
    (d) Other Authority To Impose Conditions on Funding Unaffected.--
Nothing in this Act shall--
            (1) authorize a government to regulate or affect, directly 
        or indirectly, the activities or policies of a person other 
        than a government as a condition of receiving funding or other 
        assistance; or
            (2) restrict any authority that may exist under other law 
        to so regulate or affect, except as provided in this Act.
    (e) Effect On Other Law.--Proof that a religious exercise affects 
commerce for the purposes of this Act does not give rise to any 
inference or presumption that the religious exercise is subject to any 
other law regulating commerce.
    (f) Severability.--If any provision of this Act or of 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, the amendments made by this Act, and the application of the 
provision to any other person or circumstance shall not be affected.

SEC. 6. 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. As 
used 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.

SEC. 7. AMENDMENTS TO RELIGIOUS FREEDOM RESTORATION ACT.

    (a) Definitions.--Section 5 of the Religious Freedom Restoration 
Act of 1993 (42 U.S.C. 2000bb-2) is amended--
            (1) in paragraph (1), by striking ``a State, or subdivision 
        of a State'' and inserting ``a covered entity or a subdivision 
        of such an entity'';
            (2) in paragraph (2), by striking ``term'' and all that 
        follows through ``includes'' and inserting ``term `covered 
        entity' means''; and
            (3) in paragraph (4), by striking all after ``means,'' and 
        inserting ``an act or refusal to act that is substantially 
        motivated by a religious belief, whether or not the act or 
        refusal is compulsory or central to a larger system of 
        religious belief.''.
    (b) Conforming Amendment.--Section 6(a) of the Religious Freedom 
Restoration Act of 1993 (42 U.S.C. 2000bb-3(a)) is amended by striking 
``and State''.

SEC. 8. DEFINITIONS.

    As used in this Act--
            (1) the term ``religious exercise'' means an act or refusal 
        to act that is substantially motivated by a religious belief, 
        whether or not the act or refusal is compulsory or central to a 
        larger system of religious belief;
            (2) the term ``Free Exercise Clause'' means that portion of 
        the first amendment to the Constitution that proscribes laws 
        prohibiting the free exercise of religion and includes the 
        application of that proscription under the 14th amendment to 
        the Constitution; and
            (3) except as otherwise provided in this Act, the term 
        ``government'' means a branch, department, agency, 
        instrumentality, subdivision, or official of a State, or other 
        person acting under color of State law, or a branch, 
        department, agency, instrumentality, subdivision, or official 
        of the United States, or other person acting under color of 
        Federal law.
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