S 0303 General Bill, By Alexander, Branton, Bryan, Courtney, Giese, Grooms, 
Hayes, Holland, Jackson, Martin, McConnell, McGill, O'Dell, Passailaigue, 
Rankin, Russell, Ryberg, Setzler, J.V. Smith, Washington, Wilson and Elliott
 A BILL TO AMEND TITLE 1, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE
 ADMINISTRATION OF GOVERNMENT, BY ADDING CHAPTER 32 SO AS TO ENACT THE "SOUTH
 CAROLINA RELIGIOUS FREEDOM ACT" UNDER WHICH THE STATE OF SOUTH CAROLINA AND
 ANY POLITICAL SUBDIVISION OF THE STATE IS PROHIBITED FROM BURDENING A PERSON'S
 CONSTITUTIONAL EXERCISE OF RELIGION EXCEPT UNDER CERTAIN CONDITIONS AND UNDER
 WHICH A PERSON WHOSE EXERCISE OF RELIGION HAS BEEN BURDENED IN VIOLATION OF
 THIS CHAPTER MAY ASSERT THAT VIOLATION AS A CLAIM OR DEFENSE IN A JUDICIAL
 PROCEEDING AND OBTAIN APPROPRIATE RELIEF AGAINST THE STATE OR ANY POLITICAL
 SUBDIVISION OF THE STATE.

   12/16/98  Senate Prefiled
   12/16/98  Senate Referred to Committee on Judiciary
   01/12/99  Senate Introduced and read first time SJ-117
   01/12/99  Senate Referred to Committee on Judiciary SJ-117

TO AMEND TITLE 1, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ADMINISTRATION OF GOVERNMENT, BY ADDING CHAPTER 32 SO AS TO ENACT THE "SOUTH CAROLINA RELIGIOUS FREEDOM ACT" UNDER WHICH THE STATE OF SOUTH CAROLINA AND ANY POLITICAL SUBDIVISION OF THE STATE IS PROHIBITED FROM BURDENING A PERSON'S CONSTITUTIONAL EXERCISE OF RELIGION EXCEPT UNDER CERTAIN CONDITIONS AND UNDER WHICH A PERSON WHOSE EXERCISE OF RELIGION HAS BEEN BURDENED IN VIOLATION OF THIS CHAPTER MAY ASSERT THAT VIOLATION AS A CLAIM OR DEFENSE IN A JUDICIAL PROCEEDING AND OBTAIN APPROPRIATE RELIEF AGAINST THE STATE OR ANY POLITICAL SUBDIVISION OF THE STATE.

Whereas, the General Assembly finds that:

(1) The free exercise of religion is an inherent, fundamental, and inalienable right secured by Section 2, Article I of the Constitution of this State.

(2) Laws "neutral" toward religion, as well as laws intended to interfere with the exercise of religion, may burden the exercise of religion.

(3) The State or any political subdivision of the State should not substantially burden the exercise of religion without compelling justification.

(4) In Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that government justify burdens on the exercise of religion imposed by laws neutral toward religion.

(5) In City of Boerne v. P.F. Flores, 521 U.S. 507 (1997) the Supreme Court held that an act passed by Congress to address the matter of burdens placed on the exercise of religion infringed on the legislative powers reserved to the states under the Constitution of the United States.

(6) The compelling interest test, as set forth in Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963), is a workable test for striking sensible balances between religious liberty and competing governmental interests. Now, Therefore,

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Title 1 of the 1976 Code is amended by adding:

Section 1-32-10. This chapter may be cited as the "South Carolina Religious Freedom Act."

Section 1-32-20. In this chapter:

(1) 'Demonstrates' means meets the burdens of going forward with the evidence and of persuasion.

(2) 'Exercise of religion' means an act or refusal to act that is:

(a) substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief; or

(b) sincerely held beliefs based upon moral or ethical principles.

(3) 'Person' includes, but is not limited to, an individual, corporation, firm, partnership, association, or organization.

(4) 'State' means the State of South Carolina and any political subdivision of the State and includes a branch, department, agency, board, commission, instrumentality, entity, officer, employee, or official of the State or a political subdivision of the State or any other person acting under color of law.

Section 1-32-30. The purposes of this chapter are to:

(1) restore the compelling interest test as set forth in Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963), and to guarantee that a test of compelling state interest will be imposed on all state and local laws and ordinances in all cases in which the free exercise of religion is substantially burdened; and

(2) provide a claim or defense to persons whose exercise of religion is substantially burdened by the State.

Section 1-32-40. The State may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person is:

(1) in furtherance of a compelling state interest; and

(2) the least restrictive means of furthering that compelling state interest.

Section 1-32-50. If a person's exercise of religion has been burdened in violation of this chapter, the person may assert the violation as a claim or defense in a judicial proceeding. If the person prevails in such a proceeding, the court shall award attorneys' fees and costs.

Section 1-32-60. (A) This chapter applies to all state and local laws and ordinances and the implementation of those laws and ordinances, whether statutory or otherwise and whether adopted before or after July 1, 1999.

(B) Nothing in this chapter may be construed to authorize the State to burden any religious belief.

(C) Nothing in this chapter may be construed to affect, interpret, or in any way address:

(1) that portion of the First Amendment of the United States Constitution prohibiting laws respecting the establishment of religion;

(2) that portion of Section 2, Article 1 of the State Constitution prohibiting laws respecting the establishment of religion.

(D) Granting state funding, benefits, or exemptions, to the extent permissible under the constitutional provisions enumerated in subsection (C), items (1) and (2) do not constitute a violation of this chapter.

As used in this subsection, 'granting', used with respect to state funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions."

SECTION 2. This act takes effect July 1, 1999.