Senate Bill S883

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

                                   883

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

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

AN ACT to amend the civil rights law, in relation to enacting the  reli-
  gious freedom restoration act

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

  Section 1. The civil rights law is amended by  adding  a  new  section
79-o to read as follows:
  S  79-O.  RELIGIOUS FREEDOM RESTORATION ACT. 1. THE LEGISLATURE HEREBY
FINDS AND DECLARES THAT THE INALIENABLE RIGHT TO THE  FREE  EXERCISE  OF
RELIGION  IS SECURED BY THE NEW YORK STATE AND FEDERAL CONSTITUTIONS AND
MAY NOT BE BURDENED BY GOVERNMENT ABSENT COMPELLING INTEREST AND  JUSTI-
FICATION, AND THAT SUCH COMPELLING INTEREST MUST MEET THE TESTS OF BEING
MORE  THAN  ROUTINE, MUST RELATE DIRECTLY TO CORE CONSTITUTIONAL ISSUES,
AND MUST DO MORE THAN MERELY IMPROVE GOVERNMENT EFFICIENCY. THE LEGISLA-
TURE FURTHER FINDS IT TO BE IN EVERY SENSE IN  THE  PUBLIC  INTEREST  TO
REQUIRE,  AND  HEREBY  REQUIRES,  AS  A MATTER OF STATE POLICY, THAT THE
APPLICATION OF ANY RULE IN FURTHERANCE OF SUCH  COMPELLING  INTEREST  BE
PERFORMED IN THE LEAST RESTRICTIVE MANNER.
  THE  LEGISLATURE  DECLARES  THAT  THE  PURPOSES OF THIS SECTION ARE IN
EVERY SENSE IN THE PUBLIC INTEREST AND FOR THE BENEFIT OF THE PEOPLE  OF
THE  STATE OF NEW YORK, THOSE INTERESTS BEING: TO PROVIDE A STANDARDIZED
AND WORKABLE TEST FOR BALANCING RELIGIOUS LIBERTY AND GOVERNMENT  INTER-
ESTS;  TO GUARANTEE APPLICATION OF SUCH TEST IN ALL CASES WHERE EXERCISE
OF RELIGION IS SUBSTANTIALLY BURDENED; TO REQUIRE AS A MATTER  OF  STATE
POLICY  THAT  THE APPLICATION OF ANY RULE OR ACTION BY THE GOVERNMENT IN
ANY SUCH CASES BE EXECUTED IN THE LEAST RESTRICTIVE MANNER POSSIBLE; AND
TO PROVIDE A CLAIM OR DEFENSE TO PERSONS  WHOSE  RELIGIOUS  EXERCISE  IS
SUBSTANTIALLY BURDENED BY GOVERNMENT ACTIONS.
  2. AS USED IN THIS SECTION:

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

                                                           LBD04291-01-1

S. 883                              2

  A. "STATE GOVERNMENT" MEANS ANY DEPARTMENT, BUREAU, COMMISSION, BOARD,
PUBLIC  AUTHORITY  OR  OTHER  AGENCY  OF THE STATE, INCLUDING ANY PUBLIC
BENEFIT CORPORATION ANY MEMBER OF WHOSE BOARD IS APPOINTED BY THE GOVER-
NOR, OR ANY OFFICIAL OF ANY SUCH ENTITY DESCRIBED IN THIS SECTION.
  B. "LOCAL GOVERNMENT" MEANS ANY VILLAGE, TOWN (OUTSIDE THE AREA OF ANY
INCORPORATED  VILLAGE),  CITY,  OR  ANY  PUBLIC  BENEFIT CORPORATION ANY
MEMBER OF WHOSE BOARD IS APPOINTED BY A LOCAL GOVERNMENT, OR  ANY  OFFI-
CIAL  OF  ANY SUCH ENTITY.   WHERE A BOARD INCLUDES MEMBERS APPOINTED BY
THE GOVERNOR AND BY A LOCAL GOVERNMENT, THE BOARD SHALL BE CONSIDERED AS
INCLUDED IN THE DEFINITION OF STATE GOVERNMENT.
  C. "GOVERNMENT" WHEN USED SINGLY MEANS STATE AND LOCAL GOVERNMENT.
  D. "EXERCISE OF RELIGION" MEANS AND INCLUDES ANY EXERCISE OF RELIGION,
WHETHER OR NOT COMPELLED BY,  OR  CENTRAL  TO,  A  SYSTEM  OF  RELIGIOUS
BELIEF,  AND  INCLUDES  ANY  ACT OR REFUSAL TO ACT THAT IS SUBSTANTIALLY
MOTIVATED BY SUCH RELIGIOUS BELIEF, AS WELL AS  THE  USE,  BUILDING,  OR
CONVERSION OF REAL PROPERTY FOR THE PURPOSE OF RELIGIOUS EXERCISE OF THE
PERSON  OR  ENTITY  THAT  USES  OR  INTENDS TO USE THE PROPERTY FOR THAT
PURPOSE.
  3. STATE  AND  LOCAL  GOVERNMENT  SHALL  NOT  SUBSTANTIALLY  BURDEN  A
PERSON'S EXERCISE OF RELIGION BY ANY ACT OR FAILURE TO ACT.
  A.  A  PERSON WHOSE RELIGIOUS EXERCISE IS, HAS BEEN, OR IS PROPOSED TO
BE SUBSTANTIALLY BURDENED IN VIOLATION OF THIS SECTION BY STATE OR LOCAL
GOVERNMENT SHALL NOTIFY SUCH GOVERNMENT, WHICH  SHALL  ACCOMMODATE  SUCH
PERSON'S RELIGIOUS NEEDS OR ELSE PROVIDE CREDIBLE EVIDENCE THAT APPLICA-
TION  OF THE BURDEN TO THE PERSON (1) FURTHERS A COMPELLING GOVERNMENTAL
INTEREST, AND (2) IS THE LEAST  RESTRICTIVE  MEANS  OF  FURTHERING  SUCH
COMPELLING GOVERNMENTAL INTEREST.
  B.  A  PERSON WHOSE RELIGIOUS EXERCISE HAS BEEN SUBSTANTIALLY BURDENED
IN VIOLATION OF THIS SECTION MAY ASSERT SUCH VIOLATION  AS  A  CLAIM  OR
DEFENSE IN A JUDICIAL PROCEEDING, PROVIDED, HOWEVER, THAT IT SHALL BE AN
EXCEPTION  TO  THE  PROHIBITION  ENACTED  BY THIS SECTION IN ANY CASE IN
WHICH GOVERNMENT PROVIDES CREDIBLE  EVIDENCE  THAT  APPLICATION  OF  THE
BURDEN  TO  THE  PERSON (1) FURTHERS A COMPELLING GOVERNMENTAL INTEREST;
AND (2) IS THE LEAST RESTRICTIVE MEANS  OF  FURTHERING  SUCH  COMPELLING
GOVERNMENTAL INTEREST.
  C. A PARTY WHO PREVAILS IN AN ACTION TO ENFORCE THIS SECTION AGAINST A
GOVERNMENT  SHALL  BE  ENTITLED  TO  RECOVER  ATTORNEY'S  FEES AND COSTS
INCURRED IN MAINTAINING SUCH CLAIM OR DEFENSE.
  4. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO AUTHORIZE ANY GOVERN-
MENT TO SUBSTANTIALLY BURDEN ANY RELIGIOUS BELIEF, NOR SHALL THE  GRANT-
ING  OF  GOVERNMENT  FUNDING,  BENEFITS, OR EXEMPTIONS BE CONSTRUED AS A
VIOLATION HEREUNDER, PROVIDED HOWEVER THAT THE WORD "GRANTING" SHALL NOT
BE DEEMED TO MEAN OR INCLUDE A DENIAL OF GOVERNMENT  FUNDING,  BENEFITS,
OR EXEMPTIONS.
  5.  ANY OTHER PROVISION OF ANY OTHER LAW TO THE CONTRARY NOTWITHSTAND-
ING, ANY VILLAGE, TOWN (OUTSIDE THE AREA OF ANY INCORPORATED VILLAGE) OR
CITY MAY ENACT ORDINANCES, STANDARDS, RULES, OR REGULATIONS THAT PROTECT
THE FREE EXERCISE OF RELIGION IN A MANNER OR TO AN EXTENT  EQUAL  TO  OR
GREATER THAN THE PROTECTION PROVIDED IN THIS SECTION.
  6.  ANY  IMPLICATION IN THE FOREGOING TO THE CONTRARY NOTWITHSTANDING,
"COMPELLING GOVERNMENT INTEREST" SHALL BE DEEMED TO  INCLUDE  ACTIVITIES
BY GOVERNMENT WHICH PREVENT OR PUNISH ANY ACT WHICH ON ITS FACE WOULD OR
IF UNDERTAKEN WOULD CONSTITUTE A VIOLATION, MISDEMEANOR, OR FELONY UNDER
THE PENAL OR ANY OTHER LAW OF THIS STATE.
  S 2. Severability. If any clause, sentence, paragraph, section or part
of  this act shall be adjudged by any court of competent jurisdiction to

S. 883                              3

be invalid and after exhaustion of  all  further  judicial  review,  the
judgment  shall  not affect, impair or invalidate the remainder thereof,
but shall be confined in its operation to the  clause,  sentence,  para-
graph,  section or part of this act directly involved in the controversy
in which such judgment shall have been rendered.
  S 3. This act shall take effect immediately.