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COMMITTEE AMENDMENT ADOPTED
April 22, 1999
H. 3158
Introduced by Reps. Campsen, Knotts, R. Smith, Loftis, Barfield, Tripp, Altman, Wilder, Easterday, Edge, Leach, Harrison, Robinson, Wilkins, J. Brown, Miller, Hamilton, Barrett, Rice, Cato, J. Smith, Delleney, Gilham, Lourie, Rhoad, Bailey, Sharpe, Kirsh, Bales, Jennings, M. Hines, Neilson, Kennedy, Ott, Cobb-Hunter, Hayes, Gourdine, J. Hines, Inabinett, Breeland, Lee, Moody-Lawrence, F. Smith, McMahan, Mack, Maddox, Riser, Simrill and Sandifer
S. Printed 4/22/99--S.
Read the first time March 30, 1999.
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.
Amend Title To Conform
Whereas, the General Assembly finds that:
(1) The free exercise of religion is an inherent, fundamental, and inalienable right secured by Article I, Section 2 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 the exercise of religion under the First Amendment to the United States Constitution or Article I, Section 2 of the State Constitution.
(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, or officer, employee, 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 the State 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 1-32-45. (A) For purposes of this chapter, a state or local correctional facility's regulation shall be considered 'in furtherance of a compelling state interest' if the facility demonstrates that the religious activity:
(1) sought to be engaged in by a prisoner is presumptively dangerous to the health or safety of that prisoner; or
(2) poses a direct threat to the health, safety, or security of other prisoners, correctional officials, or the public.
(B) A state or local correctional facility regulation may not be considered the 'least restrictive means' of furthering a compelling state interest if a reasonable accommodation can be made to protect the safety or security of prisoners, correctional officials, or the public.
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 attorney's 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 the effective date of this act.
(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 Article I, Section 2 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)(1) and (2), does not constitute a violation of this chapter.
As used in this subsection, 'granting', 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 upon approval by the Governor.
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