ASSEMBLY, No. 6

STATE OF NEW JERSEY

INTRODUCED NOVEMBER 6, 1997

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 Restoration 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;

    (2) The Constitution of the State of New Jersey also recognizes the right of religious freedom;

    (3) Laws which are facially neutral towards religion may nonetheless burden religious exercise;

    (4) Government should not substantially burden religious exercise without compelling justification;

    (5) The compelling interest test is a workable test for striking sensible balances between religious liberty and competing governmental interests.

    b. It is the intent of the Legislature:

    (1) To guarantee that a test of compelling governmental interest will be imposed on all state laws and local ordinances 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; and

    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.

    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 State laws and local ordinances and the implementation of such laws and ordinances, whether statutory or otherwise, and whether adopted 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 any State, county or local correctional facility to provide for an incarcerated person's exercise of religion in a manner in which there is a substantial likelihood that it will be disruptive to the safety of other persons or the operation of the facility.

    7. This act shall take effect immediately.

STATEMENT

    This bill creates the" New Jersey Religious Freedom Restoration Act." It is the purpose of this bill to require that a test of compelling governmental interest be imposed on all State laws and local ordinances 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).

    The 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 a government. Under the bill, a party which prevails against a governmental entity shall recover attorney's fee and costs. The bill is applicable to all State laws and local ordinances whether enacted before or after the effective date of this act.

    This 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.

Creates the "New Jersey Religious Freedom Restoration Act."