Senate Bill S834

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   834

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 18, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance

AN ACT to amend the executive law, in relation to the free  exercise  of
  religion

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The executive law is amended by adding a new  article  14-A
to read as follows:
                               ARTICLE 14-A
                        FREE EXERCISE OF RELIGION
SECTION 275. LEGISLATIVE FINDINGS AND STATEMENT OF INTENT.
        276. FREE EXERCISE OF RELIGION PROTECTED.
        277. DEFINITIONS.
        278. APPLICABILITY.
  S  275.  LEGISLATIVE FINDINGS AND STATEMENT OF INTENT. 1. THE LEGISLA-
TURE FINDS THAT:
  (A) THE STATE CONSTITUTION RECOGNIZES THE FREE EXERCISE AND  ENJOYMENT
OF  RELIGIOUS  PROFESSION AND WORSHIP, WITHOUT DISCRIMINATION OR PREFER-
ENCE, AS AN INHERENT AND FUNDAMENTAL RIGHT;
  (B) LAWS "FACIALLY NEUTRAL" TOWARD RELIGION, AS WELL AS LAWS  INTENDED
TO  INTERFERE WITH RELIGIOUS EXERCISE, MAY BURDEN RELIGIOUS EXERCISE AND
PROFESSION;
  (C) GOVERNMENTS SHOULD NOT  SUBSTANTIALLY  BURDEN  RELIGIOUS  EXERCISE
WITHOUT COMPELLING JUSTIFICATION; AND
  (D) THE COMPELLING INTEREST TEST, AS SET FORTH IN THE FEDERAL CASES OF
WISCONSIN  V.  YODER,  406 US 205 (1972), AND SHERBERT V. VERNER, 374 US
398 (1963), IS A WORKABLE TEST FOR STRIKING  SENSIBLE  BALANCES  BETWEEN
RELIGIOUS LIBERTY AND COMPETING GOVERNMENTAL INTERESTS.
  2. IT IS THE INTENT OF THE LEGISLATURE:
  (A)  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06311-01-9
              

S. 834                              2

FREE EXERCISE AND ENJOYMENT  OF  RELIGIOUS  PROFESSION  AND  WORSHIP  IS
SUBSTANTIALLY BURDENED; AND
  (B)  TO  PROVIDE A CLAIM OR DEFENSE TO PERSONS WHOSE RELIGIOUS PROFES-
SION AND WORSHIP IS SUBSTANTIALLY BURDENED BY GOVERNMENT.
  S 276. FREE EXERCISE OF RELIGION PROTECTED. 1.  GOVERNMENT  SHALL  NOT
SUBSTANTIALLY  BURDEN  A  PERSON'S  EXERCISE  AND ENJOYMENT OF RELIGIOUS
PROFESSION AND WORSHIP EVEN IF THE BURDEN RESULTS FROM A RULE OF GENERAL
APPLICABILITY, EXCEPT AS PROVIDED IN SUBDIVISION TWO OF THIS SECTION.
  2. GOVERNMENT MAY SUBSTANTIALLY BURDEN A PERSON'S EXERCISE AND  ENJOY-
MENT  OF  RELIGIOUS  PROFESSION AND WORSHIP ONLY IF IT DEMONSTRATES THAT
APPLICATION OF THE BURDEN TO THE PERSON--
  (A) IS IN FURTHERANCE OF A COMPELLING GOVERNMENTAL INTEREST; AND
  (B) IS 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 A JUDI-
CIAL PROCEEDING AND OBTAIN APPROPRIATE RELIEF AGAINST A GOVERNMENT.    A
PARTY  WHO  PREVAILS  IN  ANY  ACTION  TO ENFORCE THIS ARTICLE AGAINST A
GOVERNMENT SHALL RECOVER ATTORNEY'S FEES AND COSTS.
  S 277. DEFINITIONS. AS USED IN THIS ARTICLE:
  1. THE  TERM  "GOVERNMENT"  INCLUDES  A  BRANCH,  DEPARTMENT,  AGENCY,
INSTRUMENTALITY,  AND  OFFICIAL  (OR  OTHER PERSON ACTING UNDER COLOR OF
LAW) OF THE STATE, OR A MUNICIPALITY OR SUBDIVISION OF THE STATE;
  2. THE TERM "DEMONSTRATES" MEANS MEETS THE BURDENS  OF  GOING  FORWARD
WITH THE EVIDENCE AND OF PERSUASION; AND
  3.  THE  TERM  "EXERCISE  AND  ENJOYMENT  OF  RELIGIOUS PROFESSION AND
WORSHIP" MEANS THE PRACTICE OF RELIGION UNDER SECTION THREE OF ARTICLE I
OF THE STATE CONSTITUTION.
  S 278. APPLICABILITY.  1. THIS ARTICLE APPLIES TO ALL STATE AND  LOCAL
LAWS  AND ORDINANCES AND THE IMPLEMENTATION OF SUCH LAWS AND ORDINANCES,
WHETHER STATUTORY OR OTHERWISE, AND WHETHER ADOPTED BEFORE OR AFTER  THE
EFFECTIVE DATE OF THIS ARTICLE.
  2. STATE LAW ADOPTED AFTER THE EFFECTIVE DATE OF THIS ARTICLE SHALL BE
SUBJECT  TO THIS ARTICLE UNLESS SUCH LAW EXPLICITLY EXCLUDES SUCH APPLI-
CATION BY REFERENCE TO THIS ARTICLE.
  3. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO AUTHORIZE ANY GOVERN-
MENT TO BURDEN ANY RELIGIOUS BELIEF.
  S 2. This act shall take effect immediately.