 |
ARIZONA STATE SENATE
Fifty-Fifth Legislature, First Regular Session
AMENDED
religious services; essential services
Purpose
Declares a religious service as an essential service during a state of emergency. Requires religious organizations to be allowed to continue to operate during a state of emergency in the same or greater extent as other organizations and businesses that provide essential services. Outlines requirements for legal action relating to violations of requirements for religious services as essential services.
Background
The Governor may declare a state of emergency if the Governor finds that there exists conditions of disaster or extreme peril to the safety of persons or property within the state caused by air pollution, fire, flood, epidemic, riot, earthquake or other causes that are likely to be beyond the control of any single county or municipality (A.R.S. § 26-301). During a state of emergency, the Governor has complete authority over all agencies of the state government and the right to exercise all police power vested in the state by the Arizona Constitution. Additionally, the Governor may direct all agencies to utilize and employ personnel, equipment and facilities for the performance of activities designed to prevent or alleviate actual or threatened damage due to the emergency. The Governor's state of emergency powers end when the state of emergency proclamation has been terminated by proclamation of the Governor or Concurrent Resolution of the Legislature (A.R.S. § 26-303).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Declares a religious service, during a state of emergency, to be an essential service deemed necessary and vital to the health and welfare of the public.
2. Requires state government to allow a religious organization to continue to operate and engage in religious services during a state of emergency to at least the same extent as other organizations or businesses that provide essential services and that are necessary and vital to the health and welfare of the public.
3. Defines state government as:
a) the state or a political subdivision of the state;
b) a state agency or political subdivision agency;
c) any person acting under color of Arizona law; and
d) any private person suing under or attempting to enforce a law, rule or regulation adopted by Arizona or a political subdivision.
4. Specifies state government may require religious organizations to comply with neutral health, safety or occupancy requirements issued by state government or the federal government that apply to all organizations and businesses that provide essential services.
5. Prohibits state government from enforcing any health, safety or occupancy requirement that imposes a substantial burden on a religious service without demonstrating that applying the burden is:
a) essential to further a compelling government interest; and
b) is the least restrictive means of furthering the compelling government interest.
6. Prohibits state government from taking any discriminatory action against a religious organization wholly or partially on the basis that the organization:
a) is religious;
b) operates or seeks to operate during a state of emergency; and
c) engages in the exercise of religion as protected under the First Amendment of the U.S. Constitution.
7. Specifies that the prohibition on state government taking any discriminatory action against a religious organization does not prohibit a court from issuing an order or taking further action that is otherwise allowed by law.
8. Defines discriminatory action to include:
a) altering the tax treatment of, or cause any tax, penalty or payment to be assessed against a religious organization, or deny, delay, revoke or otherwise make unavailable any exemption from taxation of a religious organization;
b) disallowing, denying or otherwise making unavailable a deduction for state tax purposes of any charitable contribution made to or by a religious organization;
c) imposing, levying or assessing a monetary fine, fee, civil or criminal penalty, damages award or injunction against a religious organization; and
d) withholding, reducing, excluding, terminating, materially altering the terms or conditions of or otherwise making unavailable or denying any state grant, contract, subcontract, cooperative agreement, guarantee loan, scholarship, license, certification, accreditation, recognition or or other similar benefit or entitlement or benefit of a state benefit program from a religious organization.
9. Authorizes a religious organization to assert, as a claim against state government or as a defense in any judicial or administrative proceeding without regard to the party bringing the proceeding, a violation of the declaration of religious services as essential or the requirement that state government allow a religious organization to continue operations and services.
10. Restricts a religious organization's authority to bring an action to within two years of the date the person knew or should have known that a discriminatory action or other violation was taken against the religious organization.
11. Allows an action to be commenced and relief to be granted without regard to whether the religious organization commencing the action has sought or exhausted administrative remedies.
12. Allows a religious organization that successfully asserts a claim or defense against the state to recover:
a) declaratory relief;
b) injunctive relief to prevent or remedy the violation;
c) compensatory damages for pecuniary and nonpecuniary losses;
d) reasonable attorney fees and costs; and
e) any other appropriate relief.
13. Limits, to only declaratory and injunctive relief, a recovery by a religious organization that successfully asserts a claim or defense against a private person not acting under the color of Arizona law.
14. Waives and abolishes sovereign, governmental and qualified immunities to the extent established by the declaration of religious services as essential.
15. Allows a religious organization to sue state government, except for state courts.
16. Requires the declaration and requirements relating to religious services as essential services to be construed in favor of a broad protection of the free exercise of religion.
17. Asserts that the protection of the free exercise of religion afforded by the declaration and requirements are in addition to protections provided under federal law, Arizona law, the U.S. Constitution and the Arizona Constitution.
18. Asserts that the declaration and requirements:
a) do not narrow the meaning or application of any state or local law protecting the free exercise of religion;
b) apply to and supersede all Arizona laws that impinge on the free exercise of religion, unless a conflicting law is expressly exempted from application; and
c) apply to and supersede any ordinance, rule, order, opinion, decision, practice or other exercise of state government's authority that impinges upon the free exercise of religion.
19. Stipulates that if any provision or application of the declaration and requirements is held invalid under law, the remainder of the provisions may not be affected.
20. Defines religious organization, religious services and state of emergency.
21. Contains a legislative findings clause.
22. Becomes effective on the general effective date.
Amendments Adopted by Committee
2. Makes a technical change.
House Action Senate Action
JUD 2/10/21 DP 7-3-0-0 GOV 3/8/21 DPA 5-3-0
3rd Read 2/23/21 38-22-0
Prepared by Senate Research
March 9, 2021
MH/gs