[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4163 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 4163

To prohibit the imposition of certain substantial burdens, relating to 
    COVID-19 vaccine mandates, on religious exercise, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 9, 2022

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

_______________________________________________________________________

                                 A BILL


 
To prohibit the imposition of certain substantial burdens, relating to 
    COVID-19 vaccine mandates, on religious exercise, and for other 
                               purposes.

    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 ``Conscience Objections to Negligent 
State COVID-19 Inoculation Edicts Need Constitutional Enforcement Act'' 
or the ``CONSCIENCE Act''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds the following:
            (1) In response to the COVID-19 pandemic, State and local 
        governments and private sector entities have implemented 
        unprecedented public health requirements, including 
        requirements that their employees, customers, and other persons 
        receive a COVID-19 vaccine (referred to in this section as 
        ``COVID-19 vaccine mandates''), resulting in millions of 
        Americans being subject to such requirements.
            (2) Many COVID-19 vaccine mandates, due to their 
        unprecedented magnitude and scope of application, and the 
        unprecedented haste of and inattention to the religious 
        exercise of persons subject to the mandates by the 
        organizations implementing them, do not adequately protect the 
        religious freedom of the persons subject to them.
            (3) As a result, millions of Americans have objected to 
        COVID-19 vaccine mandates--more than for any other medical 
        requirement for employment or for use of a public accommodation 
        in recent history--often at great personal cost, on the basis 
        that receiving a COVID-19 vaccine would violate their sincerely 
        held religious beliefs.
            (4) COVID-19 vaccine mandates commonly threaten the rights 
        of employees and other persons to religious exercise by 
        requiring persons subject to the mandates to--
                    (A) receive a COVID-19 vaccine (with respect to 
                private entities, often under the color of law), in 
                violation of their sincerely held religious beliefs; or
                    (B) otherwise face substantial burdens such as the 
                loss of employment, pay, or status within employment, 
                the subjection to punitive personal public health 
                measures, or any other loss caused by a failure to 
                accommodate religious exercise.
            (5) With respect to COVID-19 vaccine mandates implemented 
        by the States and the District of Columbia, the rights of 
        persons under the First Amendment to the Constitution of the 
        United States who are subject to such requirements have been 
        violated in the following ways:
                    (A) COVID-19 vaccine mandates for State employees 
                in the States of New York, Maine, and Rhode Island have 
                allowed for medical exemptions from the COVID-19 
                vaccine, but have not allowed for religious exemptions.
                    (B) The Governor of New York has stated that--
                            (i) New York intentionally excluded 
                        religious exemptions from the COVID-19 
                        vaccination mandate; and
                            (ii) the Governor was unaware of any 
                        ``organized religion'' that seeks religious 
                        exemptions for the COVID-19 vaccine and those 
                        individuals who seek such an exemption are not 
                        ``listening to God and what God wants;''.
                    (C) New York has allowed COVID-19 vaccinated 
                workers with symptomatic, active COVID-19 infections to 
                continue working in hospitals, but has not allowed 
                religious objectors who do not have COVID-19 to work in 
                hospitals.
                    (D) Maine removed the allowance for religious 
                exemptions for health care workers, effective September 
                1, 2021, in a law requiring all health care workers to 
                receive the COVID-19 vaccine and influenza vaccine.
                    (E) Rhode Island omitted religious exemptions to 
                COVID-19 vaccines.
                    (F) In Rhode Island, health care workers have been 
                required to receive the COVID-19 vaccine, and health 
                care facilities are required to deny entry to health 
                care workers or providers who are not fully vaccinated.
            (6) With respect to COVID-19 vaccine mandates implemented 
        by private sector entities, United Airlines instituted an 
        ``absolute'' policy requiring all employees to receive the 
        COVID-19 vaccine, and those who submitted requests for 
        religious exemptions were either automatically denied or placed 
        on unpaid leave with no benefits.
            (7) COVID-19 vaccine mandates that do not accommodate 
        religious exercise have resulted in labor shortages that affect 
        interstate and foreign commerce.
            (8) According to a report by the Committee on Small 
        Business and Entrepreneurship of the Senate, the Federal COVID-
        19 vaccine requirement put an estimated 44,900,000 Americans at 
        risk of losing their jobs owing to their refusal to receive a 
        COVID-19 vaccine. A substantial number of those refusals may be 
        attributed to religious objections, as according to a survey by 
        the Public Religion Research Institute, 10 percent of Americans 
        believe that receiving a COVID-19 vaccine would conflict with 
        their religious beliefs.
            (9) In Doe v. Mills, 142 S. Ct. 17 (2021) and Dr. A. v. 
        Hochul, 142 S. Ct. 552 (2021), the Supreme Court denied the 
        requests of employees requesting religious exemptions to COVID-
        19 vaccine mandates, causing those employees to face 
        irreparable harm.
            (10) The Free Exercise Clause of the First Amendment to the 
        Constitution protects rights of individuals to live out their 
        religious beliefs publicly through religious exercise.
            (11) Congress has the power to enforce the right to free 
        exercise of religion, through remedial measures under section 5 
        of the 14th Amendment to the Constitution.
            (12) Laws that protect the free exercise of religious 
        beliefs are consistent with the founding principles of the 
        United States and protections under the First Amendment to the 
        Constitution.
            (13) Congress has the power to regulate interstate and 
        foreign commerce under the Commerce Clause of section 8 of 
        article I of the Constitution.
    (b) Purpose.--The purpose of this Act is to preempt laws and 
disallow practices that discriminate against persons due to their 
religious exercise.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Covered person.--The term ``covered person'' means a 
        person raising a claim or defense under this Act.
            (2) COVID-19 vaccine mandate.--The term ``COVID-19 vaccine 
        mandate'' means a mandate that an individual receive a COVID-19 
        vaccine.
            (3) Demonstrates.--The term ``demonstrates'' means meets 
        the burdens of going forward with the evidence and of 
        persuasion.
            (4) Free exercise clause.--The term ``Free Exercise 
        Clause'' means that portion of the First Amendment to the 
        Constitution of the United States that proscribes laws 
        prohibiting the free exercise of religion.
            (5) Government.--The term ``government''--
                    (A) means--
                            (i) a State, county, municipality, or other 
                        governmental entity created under the authority 
                        of a State;
                            (ii) any branch, department, agency, 
                        instrumentality, or official of an entity 
                        listed in clause (i); and
                            (iii) any other person acting under color 
                        of State law; and
                    (B) for the purpose of sections 5(b) and 6, 
                includes--
                            (i) the United States;
                            (ii) any branch, department, agency, 
                        instrumentality, or official of the United 
                        States; and
                            (iii) any other person acting under color 
                        of Federal law.
            (6) Program or activity.--The term ``program or activity'' 
        means all of the operations of any entity as described in 
        paragraph (1) or (2) of section 606 of the Civil Rights Act of 
        1964 (42 U.S.C. 2000d-4a), any part of which is extended 
        Federal financial assistance.
            (7) Religious exercise.--
                    (A) In general.--The term ``religious exercise'' 
                includes any exercise of religion, whether or not 
                compelled by, or central to, a system of religious 
                belief.
                    (B) Rule.--
                            (i) Person.--In the case of a person, 
                        refusing to receive a COVID-19 vaccine on the 
                        basis of a sincerely held religious belief 
                        shall be considered to be religious exercise of 
                        the person.
                            (ii) Entity.--In the case of an entity, 
                        refusing on the basis of a sincerely held 
                        religious belief to require that any employee, 
                        customer, or other person affiliated with the 
                        entity receive a COVID-19 vaccine mandate shall 
                        be considered to be religious exercise of the 
                        entity.

SEC. 4. PROTECTION OF RELIGIOUS LIBERTY AND EXERCISE BY EXEMPTIONS FOR 
              THE COVID-19 VACCINE.

    (a) Substantial Burdens.--
            (1) General rule.--No government shall impose or implement 
        a COVID-19 vaccine mandate in a manner that imposes a 
        substantial burden on the religious exercise of a person, 
        including a religious assembly or institution, unless the 
        government demonstrates that imposition of the burden on that 
        person's, assembly's, or institution's religious exercise--
                    (A) is in furtherance of a compelling governmental 
                interest; and
                    (B) is the least restrictive means of furthering 
                that compelling governmental interest.
            (2) Scope of application.--This subsection and subsection 
        (b) apply in any case in which--
                    (A) the substantial burden is imposed by State law, 
                even if the burden results from a rule of general 
                applicability;
                    (B) the substantial burden is imposed in a program 
                or activity that receives Federal financial assistance, 
                even if the burden results from a rule of general 
                applicability;
                    (C) the substantial burden is imposed by an entity 
                that operates a workplace and that is party to or 
                conducts work in connection with a contract or 
                contract-like instrument with any government, even if 
                the burden results from a rule of general 
                applicability;
                    (D) the substantial burden affects, or removal of 
                that substantial burden would affect, commerce with 
                foreign nations, among the several States, or with 
                Indian Tribes, even if the burden results from a rule 
                of general applicability; or
                    (E) the substantial burden is imposed in the 
                implementation of a COVID-19 vaccine mandate, under 
                which the government makes, or has in place formal or 
                informal procedures or practices that permit the 
                government to make, individualized assessments of 
                COVID-19 vaccine exemptions, even if the burden results 
                from a rule of general applicability.
    (b) Discrimination and Exclusion.--
            (1) Equal terms.--No government shall impose or implement a 
        COVID-19 vaccine mandate in a manner that treats a religious 
        exercise (including a condition) on less than equal terms with 
        a nonreligious exercise (including a condition).
            (2) Nondiscrimination.--No government shall impose or 
        implement a COVID-19 vaccine mandate that imposes a substantial 
        burden on any person for an exercise on the basis of religion, 
        including a religious denomination.
            (3) Exclusions and limits.--No government shall impose or 
        implement a COVID-19 vaccine mandate that--
                    (A) totally excludes religious exemptions; or
                    (B) unreasonably limits religious exemptions.

SEC. 5. JUDICIAL RELIEF.

    (a) Cause of Action.--A covered person may assert an actual or 
threatened violation of this Act by a government as a claim or defense 
in a judicial or administrative proceeding and obtain compensatory 
damages, injunctive relief, declaratory relief, or any other 
appropriate relief against the government involved. 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) Burden of Persuasion.--If a covered person produces prima facie 
evidence to support a claim alleging a violation of the Free Exercise 
Clause or a violation of section 4, the government shall bear the 
burden of persuasion on any element of the claim, except that the 
covered person shall bear the burden of persuasion on whether the law 
(including a regulation) or government practice that is challenged by 
the claim substantially burdens the covered person's exercise of 
religion.
    (c) Administrative Remedies Not Required.--Notwithstanding any 
other provision of law, an action under this section may be commenced, 
and relief may be granted, in a district court of the United States 
without regard to whether the covered person commencing the action has 
sought or exhausted available administrative remedies.
    (d) Full Faith and Credit.--Adjudication of a claim of a violation 
of section 4 in a non-Federal forum shall not be entitled to full faith 
and credit in a Federal court unless the claimant had a full and fair 
adjudication of that claim in the non-Federal forum.
    (e) Attorneys' Fees.--Section 722(b) of the Revised Statutes (42 
U.S.C. 1988(b)) is amended by inserting ``the Religious Freedom from 
COVID-19 Vaccine Mandates Act of 2022,'' after ``the Religious Land Use 
and Institutionalized Persons Act of 2000,''.
    (f) Authority of United States To Enforce This Act.--The United 
States may bring an action for injunctive or declaratory relief to 
enforce compliance with this Act. Nothing in this subsection shall be 
construed to deny, impair, or otherwise affect any right or authority 
of the Attorney General, the United States, or any agency, officer, or 
employee of the United States, acting under any law other than this 
subsection, to institute or intervene in any proceeding.

SEC. 6. 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--
            (1) for restricting or burdening religious exercise; or
            (2) for claims against a religious organization, including 
        any religiously affiliated school or institution of higher 
        education, 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 a 
government to incur expenses in its own operations to avoid imposing a 
substantial burden on religious exercise.
    (d) Governmental Discretion in Alleviating Burdens on Religious 
Exercise.--A government may avoid the preemptive force of any provision 
of this Act by changing the policy or practice that results in a 
substantial burden on religious exercise, by retaining the policy or 
practice and exempting the substantially burdened religious exercise, 
by providing exemptions from the policy or practice for applications 
that substantially burden religious exercise, or by any other means 
that eliminates the substantial burden.
    (e) Effect on Other Law.--With respect to a claim brought under 
this Act, proof that a substantial burden on a person's religious 
exercise affects, or removal of that burden would affect, commerce with 
foreign nations, among the several States, or with Indian Tribes, shall 
not establish any inference or presumption that any religious exercise 
is, or is not, subject to any law other than this Act.
    (f) Broad Construction.--This Act shall be construed in favor of a 
broad protection of religious exercise, to the maximum extent permitted 
by the terms of this Act and the Constitution.
    (g) No Preemption or Repeal.--Nothing in this Act shall be 
construed to preempt State law, or repeal Federal law, that is equally 
as protective of religious exercise as, or more protective of religious 
exercise than, this Act.
    (h) Severability.--If any provision of this Act or 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 
and the amendments made by this Act, and the application of the 
provision to any other person or circumstance shall not be affected.

SEC. 7. 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. 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. 8. APPLICABILITY.

    This Act applies to any COVID-19 vaccine mandate, whether adopted 
before, on, or after the date of enactment of this Act.
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