BILL NUMBER:A9098

Introduced by M. of A. SILVER -- (at request of the Governor) -- read once and referred to the Committee on Governmental Operations and Introduced by Senate COMMITTEE ON RULES -- (at request of the Governor) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules

TITLE OF BILL: An act to amend the executive law, in relation to the
free exercise of religion

PURPOSE:

This bill prohibits the state and local governments from substantially
burdening religious exercise except in furtherance of a compelling
interest, and in a manner narrowly tailored to that interest.

SUMMARY OF PROVISIONS:

Section I of the bill adds a new article 14-A to the Executive Law to
provide that government shall not substantially burden a person`s
religious exercise unless it has a compelling governmental interest
for doing so, and the action placing the burden is narrowly tailored
to that interest. This article will apply to all state and local laws
enacted prior to, or after, the statute.

Section 2 of the bill sets forth the effective date.

EXISTING LAW:

There is no statute that presently addresses the appropriate test to
apply to laws of general application that burden religious exercise,
although many laws provide specific religious accommodations.

STATEMENT IN SUPPORT:

The free exercise of religion is one of the bedrock principles on
which this nation was founded. James Madison, who enshrined that
principle in the First Amendment, summarized it as follows: "The
Religion then of every man must be left to the conviction and
conscience of every man; and it is the right of every man to exercise
it as these may dictate. "

For much of our history, this principle has meant that the state must
accommodate religious practices when they are impacted by laws of
general application. In the past two decades, however, courts have
altered the standard by which governmental actions are measured. This
legislation seeks to restore the appropriate place for religion in New
York`s legal framework.

Prior to 1990, the Supreme Court of the United States held that the
free exercise of an individual`s religion may not be subject to
substantial burden by laws of general application unless the state
showed that the law advanced a compelling state interest and was
narrowly tailored to that interest. Therefore, laws which restricted
key religious practices, and which did not advance a compelling
interest, could not pass legal muster without providing for religious
accommodation. So, for example, Amish school children were exempted
from mandatory school attendance requirements that violated their
faith, and government employers were required to make provision for
Sabbath observers. Then, in Employment Div., Dep `t of Human Resources
v. Smith, 494 U.S. 872 (1990), the Supreme Court reversed the rule
that had governed its decisions in regard to free exercise of religion


for over a quarter century, and reduced the constitutional protection
that religious activities have against laws of general application.

Widespread concern about the about the impact of the Smith decision
among a broad cross-section of people, including religious groups and
civil libertarians, led the Federal government to enact the Religious
Freedom Restoration Act ("RFRA")in 1993. The statute sought to
overturn Smith by providing that government cannot substantially
burden a person`s exercise of religion even if the burden results from
a rule of general applicability, except in furtherance of a compelling
governmental interest, and in a way narrowly tailored to that
interest. Although that statute remains in force as to federal law,
its application to state law was struck down in City of Boerne v.
Flores, 521 U.S. 507 (1997).{1}

As a result, numerous states have since instituted their own RFRAs,
including Rhode Island, Connecticut, Illinois, and Florida. There is
no evidence that the passage of these statutes has had any detrimental
impact where they are in force. Rather, they have been used to compel
adoption of modest religious accommodations that have little cost to
the state, but are of significant importance to those whose central
religious beliefs are impinged upon by unnecessary legal requirements.
For example, absent state RFRAs, Orthodox Jews or Hmong immigrants who
object to autopsies on religious grounds may be subject to mandatory
state laws for performing these procedures in cases, such as car
accidents, where an important state interest is lacking.

Under this bill, New York would align itself with the notions of
religious liberty that were firmly entrenched and universally accepted
prior to Smith, and as a result its residents would be able to
practice their religion more freely. Neither the state nor local
governments would be able to substantially burden practices dictated
by individuals` conscientious religious beliefs (whether held alone or
as an organized group) without good reason,-and without seeking to
provide an alternative less restrictive of that person`s faith.

BUDGET IMPLICATIONS:

It is conceivable that a religious accommodation mandated under the
statute could require a minimal expense to implement.

EFFECTIVE DATE:

The bill is effective on August 1, 2008.

{1} The federal government subsequently enacted the Religious Land Use
and Institutionalized Persons Act of 2000, which subjects states`
actions in regard to zoning and prisoners to RFRA standards. That law
has survived constitutional scrutiny. See Cutter v. Wilkinson, 544
U.S. 709 (2005).

Introduced by M. of A. SILVER -- (at request of the Governor) -- read once and referred to the Committee on Governmental Operations and Introduced by Senate COMMITTEE ON RULES -- (at request of the Governor) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules

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:*

1 Section 1. The executive law is amended by adding a new article 14-A
2 to read as follows:*
3 ARTICLE 14-A
4 FREE EXERCISE OF RELIGION
5 SECTION 275. LEGISLATIVE FINDINGS AND STATEMENT OF INTENT.
6 276. FREE EXERCISE OF RELIGION PROTECTED.
7 277. DEFINITIONS.
8 278. APPLICABILITY.
9 S 275. LEGISLATIVE FINDINGS AND STATEMENT OF INTENT. 1. THE LEGISLA-
10 TURE FINDS THAT:
11 (A) THE STATE CONSTITUTION RECOGNIZES THE FREE EXERCISE AND ENJOYMENT
12 OF RELIGIOUS PROFESSION AND WORSHIP, WITHOUT DISCRIMINATION OR PREFER-
13 ENCE, AS AN INHERENT AND FUNDAMENTAL RIGHT;
14 (B) LAWS "FACIALLY NEUTRAL" TOWARD RELIGION, AS WELL AS LAWS INTENDED
15 TO INTERFERE WITH RELIGIOUS EXERCISE, MAY BURDEN RELIGIOUS EXERCISE AND
16 PROFESSION; AND
17 (C) THE TEST SET FORTH IN THE FEDERAL CASES OF WISCONSIN V. YODER, 406
18 US 205 (1972), AND SHERBERT V. VERNER, 374 US 398 (1963), AND THE RELI-
19 GIOUS FREEDOM RESTORATION ACT WHICH HAS GOVERNED FEDERAL LAW SINCE 1993,
20 IS A WORKABLE TEST FOR STRIKING SENSIBLE BALANCES BETWEEN RELIGIOUS
21 LIBERTY AND COMPETING GOVERNMENTAL INTERESTS.
22 2. IT IS THE INTENT OF THE LEGISLATURE:
23 (A) TO GUARANTEE THAT A TEST OF COMPELLING STATE INTEREST WILL BE
24 IMPOSED ON ALL STATE AND LOCAL LAWS AND ORDINANCES IN ALL CASES IN WHICH
25 FREE EXERCISE OF RELIGION IS SUBSTANTIALLY BURDENED; AND

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD12041-03-7

A. 9098 2

1 (B) TO PROVIDE A CLAIM OR DEFENSE TO PERSONS WHOSE RELIGIOUS EXERCISE
2 IS SUBSTANTIALLY BURDENED BY GOVERNMENT ACTION.
3 S 276. FREE EXERCISE OF RELIGION PROTECTED. 1. GOVERNMENT SHALL NOT
4 SUBSTANTIALLY BURDEN A PERSON`S FREE EXERCISE OF RELIGION EVEN IF THE
5 BURDEN RESULTS FROM A RULE OF GENERAL APPLICABILITY, EXCEPT AS PROVIDED
6 IN SUBDIVISION TWO OF THIS SECTION.
7 2. A PERSON WHOSE RELIGIOUS EXERCISE HAS BEEN BURDENED IN VIOLATION OF
8 THIS SECTION MAY ASSERT THAT VIOLATION AS A CLAIM OR DEFENSE IN A JUDI-
9 CIAL PROCEEDING AND OBTAIN APPROPRIATE RELIEF UNLESS THE GOVERNMENT
10 ACTION:
11 (A) IS IN FURTHERANCE OF A COMPELLING GOVERNMENTAL INTEREST; AND
12 (B) IS THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT COMPELLING
13 GOVERNMENTAL INTEREST.
14 S 277. DEFINITIONS. AS USED IN THIS ARTICLE:
15 1. THE TERM "GOVERNMENT" MEANS THE STATE, ANY POLITICAL SUBDIVISION OF
16 THE STATE, A PUBLIC AUTHORITY OR ANY OTHER GOVERNMENTAL AGENCY, INSTRU-
17 MENTALITY OR THEREOF, OR OTHER PERSON ACTING UNDER COLOR OF LAW; AND
18 2. THE TERM "EXERCISE OF RELIGION" MEANS THE PRACTICE OF RELIGION
19 UNDER SECTION THREE OF ARTICLE ONE OF THE STATE CONSTITUTION.
20 S 278. APPLICABILITY. THIS ARTICLE APPLIES TO ALL STATE AND LOCAL
21 LAWS AND ORDINANCES AND THE IMPLEMENTATION OF SUCH LAWS AND ORDINANCES,
22 WHETHER STATUTORY OR OTHERWISE, AND WHETHER ADOPTED BEFORE OR AFTER THE
23 EFFECTIVE DATE OF THIS ARTICLE.
24 S 2. This act shall take effect August 1, 2008.

A9235 Silver (MS)

Executive Law

TITLE....Relates to the protection of the free exercise of religion

06/18/07 referred to governmental operations

--------------------------------------------------------------------------------
SUMMARY:

SILVER, WEINSTEIN, DESTITO, PHEFFER, LENTOL, JACOBS, HIKIND, GREENE, PERRY, J. RIVERA, PAULIN, AUBERTINE; M-S: Abbate, Benjamin, Bradley, Brennan, Cahill, Canestrari, Cook, Cymbrowitz, L. Diaz, Eddington, Farrell, Fields, Galef, Gianaris, Gottfried, Heastie, John, Lafayette, Latimer, V. Lopez, Maisel, Mayersohn, Morelle, Nolan, Peoples, Scarborough, Seminerio, Sweeney, Weisenberg, Weprin, Wright
Add Art 14-A SS275 - 278, Exec L
Provides that all state and local laws and ordinances meet a compelling state interest in all cases in which free exercise and enjoyment of religious profession and worship is substantially burdened unless it furthers a compelling governmental interest and is the least restrictive means necessary to accomplish such interest.
--------------------------------------------------------------------------------
BILL TEXT:


STATE OF NEW YORK
________________________________________________________________________

9235

2007-2008 Regular Sessions

IN ASSEMBLY

June 18, 2007
___________

Introduced by M. of A. SILVER, WEINSTEIN, DESTITO, PHEFFER, LENTOL,
JACOBS, HIKIND, GREENE, PERRY, J. RIVERA, PAULIN, AUBERTINE -- Multi-
Sponsored by -- M. of A. ABBATE, BENJAMIN, BRADLEY, BRENNAN, CAHILL,
CANESTRARI, COOK, CYMBROWITZ, L. DIAZ, EDDINGTON, FARRELL, FIELDS,
GALEF, GIANARIS, GOTTFRIED, HEASTIE, JOHN, LAFAYETTE, LATIMER,
V. LOPEZ, MAISEL, MAYERSOHN, MORELLE, NOLAN, PEOPLES, SCARBOROUGH,
SEMINERIO, SWEENEY, WEISENBERG, WEPRIN, WRIGHT -- read once and
referred to the Committee on Governmental Operations

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:

1 Section 1. The executive law is amended by adding a new article 14-A
2 to read as follows:
3 ARTICLE 14-A
4 FREE EXERCISE OF RELIGION
5 Section 275. Legislative findings and statement of intent.
6 276. Free exercise of religion protected.
7 277. Definitions.
8 278. Applicability.
9 § 275. Legislative findings and statement of intent. 1. The legisla-
10 ture finds that:
11 (a) the state constitution recognizes the free exercise and enjoyment
12 of religious profession and worship, without discrimination or prefer-
13 ence, as an inherent and fundamental right;
14 (b) laws "facially neutral" toward religion, as well as laws intended
15 to interfere with religious exercise, may burden religious exercise and
16 profession;
17 (c) governments should not substantially burden religious exercise
18 without compelling justification; and

EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05633-02-7


A. 9235 2

1 (d) the compelling interest test, as set forth in the federal cases of
2 Wisconsin v. Yoder, 406 US 205 (1972), and Sherbert v. Verner, 374 US
3 398 (1963), is a workable test for striking sensible balances between
4 religious liberty and competing governmental interests.
5 2. It is the intent of the legislature:
6 (a) to guarantee that all state and local laws and ordinances meet a
7 test of compelling state interest in all cases in which free exercise
8 and enjoyment of religious profession and worship is substantially
9 burdened; and
10 (b) to provide a claim or defense to persons whose religious profes-
11 sion and worship is substantially burdened by government.
12 § 276. Free exercise of religion protected. 1. Government shall not
13 substantially burden a person's exercise and enjoyment of religious
14 profession and worship even if the burden results from a rule of general
15 applicability, except as provided in subdivision two of this section.
16 2. Government may substantially burden a person's exercise and enjoy-
17 ment of religious profession and worship only if it demonstrates that
18 application of the burden to the person--
19 (a) furthers a compelling governmental interest; and
20 (b) is the least restrictive means of furthering that compelling
21 governmental interest.
22 3. A person whose religious exercise has been burdened in violation of
23 this section may assert that violation as a claim or defense in a judi-
24 cial proceeding and obtain appropriate relief against a government,
25 provided that the provisions of this section shall not be asserted as a
26 defense against the enforcement of laws that prohibit discrimination or
27 that assure access to health care. A party who prevails in any action
28 to enforce this article against a government shall recover attorney's
29 fees and costs.
30 § 277. Definitions. As used in this article:
31 1. the term "government" includes a branch, department, agency,
32 instrumentality, and official (or other person acting under color of
33 law) of the state, or a municipality or subdivision of the state;
34 2. the term "demonstrates" means meets the burdens of going forward
35 with the evidence and of persuasion; and
36 3. the term "exercise and enjoyment of religious profession and
37 worship" means the practice of religion under section three of article I
38 of the state constitution.
39 § 278. Applicability. 1. This article applies to all state and local
40 laws and ordinances and the implementation of such laws and ordinances,
41 whether statutory or otherwise, and whether adopted before or after the
42 effective date of this article.
43 2. State law adopted after the effective date of this article shall be
44 subject to this article unless such law explicitly excludes such appli-
45 cation by reference to this article.
46 3. Nothing in this article shall be construed to authorize any govern-
47 ment to burden any religious belief.
48 § 2. This act shall take effect immediately.


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SPONSORS MEMO:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(e)

Memo Text Not Found
--------------------------------------------------------------------------------
SPONSOR: Silver (MS)

S1217 KRUGER

Executive Law

TITLE....Relates to protection of religious freedom

01/17/07 REFERRED TO FINANCE

--------------------------------------------------------------------------------
SUMMARY:

KRUGER
Add Art 14-A SS275 - 278, Exec L
Provides that the state and political subdivisions thereof shall be prohibited from enacting or enforcing any law which substantially burdens a religious belief or practice unless there is compelling governmental interest and such law is the least restrictive means necessary to accomplish such interest.
--------------------------------------------------------------------------------
BILL TEXT:


STATE OF NEW YORK
________________________________________________________________________

1217

2007-2008 Regular Sessions

IN SENATE

January 17, 2007
___________

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:

1 Section 1. The executive law is amended by adding a new article 14-A
2 to read as follows:
3 ARTICLE 14-A
4 FREE EXERCISE OF RELIGION
5 Section 275. Legislative findings and statement of intent.
6 276. Free exercise of religion protected.
7 277. Definitions.
8 278. Applicability.
9 § 275. Legislative findings and statement of intent. 1. The legisla-
10 ture finds that:
11 (a) the state constitution recognizes the free exercise and enjoyment
12 of religious profession and worship, without discrimination or prefer-
13 ence, as an inherent and fundamental right;
14 (b) laws "facially neutral" toward religion, as well as laws intended
15 to interfere with religious exercise, may burden religious exercise and
16 profession;
17 (c) governments should not substantially burden religious exercise
18 without compelling justification; and
19 (d) the compelling interest test, as set forth in the federal cases of
20 Wisconsin v. Yoder, 406 US 205 (1972), and Sherbert v. Verner, 374 US
21 398 (1963), is a workable test for striking sensible balances between
22 religious liberty and competing governmental interests.
23 2. It is the intent of the legislature:
24 (a) to guarantee that a test of compelling state interest will be
25 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.
LBD05633-01-7


S. 1217 2

1 free exercise and enjoyment of religious profession and worship is
2 substantially burdened; and
3 (b) to provide a claim or defense to persons whose religious profes-
4 sion and worship is substantially burdened by government.
5 § 276. Free exercise of religion protected. 1. Government shall not
6 substantially burden a person's exercise and enjoyment of religious
7 profession and worship even if the burden results from a rule of general
8 applicability, except as provided in subdivision two of this section.
9 2. Government may substantially burden a person's exercise and enjoy-
10 ment of religious profession and worship only if it demonstrates that
11 application of the burden to the person--
12 (a) is in furtherance of a compelling governmental interest; and
13 (b) is the least restrictive means of furthering that compelling
14 governmental interest.
15 3. A person whose religious exercise has been burdened in violation of
16 this section may assert that violation as a claim or defense in a judi-
17 cial proceeding and obtain appropriate relief against a government. A
18 party who prevails in any action to enforce this article against a
19 government shall recover attorney's fees and costs.
20 § 277. Definitions. As used in this article:
21 1. the term "government" includes a branch, department, agency,
22 instrumentality, and official (or other person acting under color of
23 law) of the state, or a municipality or subdivision of the state;
24 2. the term "demonstrates" means meets the burdens of going forward
25 with the evidence and of persuasion; and
26 3. the term "exercise and enjoyment of religious profession and
27 worship" means the practice of religion under section three of article I
28 of the state constitution.
29 § 278. Applicability. 1. This article applies to all state and local
30 laws and ordinances and the implementation of such laws and ordinances,
31 whether statutory or otherwise, and whether adopted before or after the
32 effective date of this article.
33 2. State law adopted after the effective date of this article shall be
34 subject to this article unless such law explicitly excludes such appli-
35 cation by reference to this article.
36 3. Nothing in this article shall be construed to authorize any govern-
37 ment to burden any religious belief.
38 § 2. This act shall take effect immediately.


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SPONSORS MEMO:

NEW YORK STATE SENATE
INTRODUCER'S MEMORANDUM IN SUPPORT
submitted in accordance with Senate Rule VI. Sec 1


BILL NUMBER: S1217

SPONSOR: KRUGER

TITLE OF BILL: An act to amend the executive law, in relation to the
free exercise of religion


PURPOSE/SUMMARY OF PROVISIONS: The reason for this amendment is to
add article 14-A, Sections:

275. Legislative Findings and Statement of Intent.

276. Free Exercise of Religion Protected

277. Definitions

278. Applicability


JUSTIFICATION: Legislation is necessary to insure the freedom of
religious liberty guaranteed by our constitution.


FISCAL IMPLICATIONS: None


EFFECTIVE DATE: This act shall take effect immediately