exercise of religion; state action
HB 2153 revises the definition of exercise of religion and person and extends the prohibition on substantially burdening a personís exercise of religion to applications of the law by nongovernmental persons.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. The latter portion of the provision is known as the Free Exercise Clause. In 1990, Congress passed the Religious Freedom Restoration Act (RFRA), which instructed courts to apply strict scrutiny when government substantially burdens a personís exercise of religion, even if the burden results from a law of general applicability. However, the United States Supreme Court has since held that the federal RFRA may not be extended to the states and local governments (City of Boerne v. Flores, 521 U.S. 507 (1997)).
In response to City of Boerne v. Flores, Arizona enacted state-level protection from the government substantially burdening the free exercise of religion using the strict scrutiny compelling interest test (Laws 1999, Chapter 332). Accordingly, government may substantially burden a personís exercise of religion only if it demonstrates that application of the burden to the person is both in furtherance of a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest (A.R.S. ß 41-1493.01). Exercise of religion is defined as the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief (A.R.S. ß 41-1493).
∑ Expands the definition of exercise of religion by including the practice and observance of religion.
∑ Expands the definition of person to include any individual, association, partnership, corporation, church, estate, trust, foundation or other legal entity.
∑ Modifies, from government to state action, the prohibition on burdening a personís exercise of religion, except under certain circumstances.
∑ Specifies that a person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, regardless of whether the government is a party to the proceeding.
∑ Prescribes the definition of state action to include government action and the application of any law by a nongovernmental person.
∑ Makes technical and conforming changes.
Committee on Government
∑ Clarifies that the government or nongovernmental person, rather than the opposing party, enforcing state action must demonstrate that the application of the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering the compelling governmental interest.
∑ Stipulates that a person that asserts a violation of their religious exercise must establish the following:
ō The personís action or refusal to act is motivated by a religious belief;
ō The personís religious belief is sincerely held; and
ō The state action substantially burdens the exercise of the personís religious beliefs.
∑ Allows a person asserting a claim or defense in a judicial proceeding, whose religious exercise is burdened, to receive injunctive and declaratory relief.
∑ Revises the definition of state action and specifies that the requirements in A.R.S. ß 41-1493.04 relating to professional or occupational licenses and appointments to government offices are not included in the definition of state action.
∑ Revises the definition of person.
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Second Regular Session††††††††† 2††††††††† February 4, 2014
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