HB-5958, As Passed House, December 4, 2014

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 5958

 

November 13, 2014, Introduced by Rep. Bolger 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

 


House Bill No. 5958 as amended December 4, 2014

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 [a law of this

state]

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.