ASSEMBLY SUBSTITUTE FOR
ASSEMBLY, No. 6
STATE OF NEW JERSEY
ADOPTED DECEMBER 4, 1997
Sponsored by Assemblymen WEINGARTEN, COLLINS, Carroll, Lance, Assemblywoman Crecco, Assemblymen Garrett, O'Toole, Kramer, Zecker, Talarico, DiGaetano, Gregg and Assemblywoman Farragher
An Act concerning the free exercise of religion and supplementing Title 10 of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. This act shall be known and may be cited as the "New Jersey Religious Freedom Act."
2. a. The Legislature finds and declares that:
(1) The Constitution of the United States, recognizing the free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution; and, Art. I, par. 3 of the Constitution of the State of New Jersey also recognizes the right of religious freedom and affirms "the inestimable privilege of worshiping Almighty God" in accord with the dictates of one's conscience and provides that "no person shall be deprived" of that right;
(2) Actions of any governmental entity which are facially neutral towards religion may nonetheless burden religious exercise; and
(3) Government should not substantially burden religious exercise without compelling justification.
b. It is the intent of the Legislature:
(1) To guarantee that a test of compelling governmental interest will be imposed on any action of any "governmental entity," as defined in section 3 of this act in all cases in which free exercise of religion is substantially burdened; and
(2) To provide a claim or defense to persons whose religious exercise is substantially burdened by government.
3. Definitions. As used in this act:
a. "Governmental entity" includes the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State as well as any official or other person acting under color of law;
b. "Demonstrates" means meets the burdens of going forward with the evidence and of persuasion;
c. "Exercise of religion" means an act or refusal to act that is substantially motivated by a sincerely held religious belief, whether or not the burdened religious exercise is compulsory or central to the larger system of religious belief; and
d. "Actions of any governmental entity" means any governmental directive including, but not limited to: laws, statutes, regulations, ordinances or rulings adopted or issued by any governmental entity.
4. a. No governmental entity shall substantially burden a person's exercise of religion even if the burden results from a rule or law of general applicability, except as provided in subsection b. of this section.
b. A governmental entity may substantially burden a person's exercise of religion if it demonstrates that application of the burden to the person:
(1) Is in furtherance of a compelling governmental interest; and
(2) Is the least restrictive means of furthering that compelling governmental interest.
5. A person whose religious exercise has been burdened in violation of section 4 of this act may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the governmental entity. A party who prevails in any action to enforce the provisions of this act against a governmental entity shall recover attorney's fee and costs.
6. a. This act shall apply to all actions of any governmental entity and the implementation of same, whether adopted or issued before or after the effective date of this act.
b. State law adopted after the effective date of this act shall be subject to the provisions of this act unless such law explicitly excludes such application by reference to this act.
c. Nothing in this act shall be construed to authorize a governmental entity to burden any religious belief.
d. Nothing in this act shall be construed as authorizing or requiring any correctional facility of any governmental entity to provide for an incarcerated person's exercise of religion in a manner in which there is a reasonable likelihood that it will endanger the safety of other persons or disrupt the operation of the facility.
7. This act shall take effect immediately.
This substitute bill creates the "New Jersey Religious Freedom Act." It is the purpose of this substitute bill to require that a test of compelling governmental interest be imposed on all governmental actions, including laws, in all cases in which free exercise of religion is substantially burdened, and to provide a claim or defense to persons whose religious exercise is substantially burdened by government. The compelling interest test is a standard set forth in a number of U.S. Supreme Court decisions such as Wisconsin v.Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963).
This substitute bill further provides that a person whose religious exercise has been burdened in violation of the act may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the governmental entity.
Neither the definition of "exercise of religion" nor any other language in this act is intended to define religion or to suggest a definition of religion other than that embodied in existing case law.
Under the substitute bill, a party which prevails against a governmental entity shall recover attorney's fee and costs. The substitute bill is applicable to all governmental actions whether enacted before or after the effective date of this act.
Subsection d. of section 6 of this act specifies that the dual tests of section 4 shall be applied to those incarcerated in correctional facilities. A least restrictive means test does not require an accommodation in a manner that creates a reasonable likelihood of disruption to the operation of the facility or endangerment to the safety of other persons. It is anticipated by the Legislature that the courts shall continue to give due deference to the experience and expertise of correctional professionals in maintaining good order, security and discipline, including considerations of costs. However, prison regulations and policies grounded on mere speculations, exaggerated fears, or post-hoc rationalizations will not meet the act's requirements.
The Religious Freedom Act is intended to apply to challenges when there is a specific, identifiable burden on the freedom to practice religion. It is not intended to permit broad-based facial challenges to statutes with which there is disagreement on theological grounds.
Moreover, the Legislature anticipates that statutes prohibiting acts or practices with respect to controlled dangerous substances or controlled substance analoges (as defined in N.J.S.2C:35-2), which acts or practices would be prohibited under current law, will satisfy the compelling interest and least restrictive means test of section 4.
This substitute bill is based upon the federal Religious Freedom Restoration Act of 1993 (RFRA). The United States Supreme Court recently ruled that the enactment of RFRA exceeds Congress' enforcement power under the Fourteenth Amendment, and was therefore unconstitutional as federal law.
Creates the "New Jersey Religious Freedom Act."