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Regular Session, 2010
SENATE BILL NO. 606
BY SENATOR MARTINY
RELIGIOUS FREEDOMS/LIBERTIES. Provides relative to religious freedom. (8/15/10)
AN ACT1
To enact Part XIX of Chapter 32 of Title 13 of the Louisiana Revised Statutes of 1950, to2
be comprised of R.S. 13:5230 through 5244, relative to religious freedoms; to create3
a cause of action for the preservation of religious freedom; to provide for definitions;4
to provide for applicability; to provide for remedies; to require notice; to provide for5
remediation; to provide for limitations and procedures; to waive government6
immunity; to provide for fraudulent or frivolous claims; and to provide for related7
matters.8
Be it enacted by the Legislature of Louisiana:9
Section 1. Part XIX of Chapter 32 of Title 13 of the Louisiana Revised Statutes of10
1950, comprised of R.S. 13:5230 through 13:5243, is hereby enacted to read as follows: 11
PART XIX. PRESERVATION OF RELIGIOUS FREEDOM ACT12
§5230. Short title13
This part shall be known as and may be cited as the "Preservation of14
Religious Freedom Act".15
§5231.Legislative Findings16
The legislature finds and declares that:17 SB NO. 606
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A. Free exercise of religion is a fundamental right of the highest order1
in this state.2
B. In 1974, this legislature and the people of Louisiana chose to adopt3
the exact language found in the First Amendment of the United States4
Constitution regarding religious free exercise as Article 1, Section 8 of the5
Louisiana Constitution.6
C. At the time of adoption of that constitutional amendment, the United7
States Supreme Court interpreted that provision to provide equal protection8
from action of the government that explicitly burdened religious exercise and9
those that indirectly burdened religious exercise through their effect. In both10
instances, the government had to show that it had a compelling interest in11
taking a particular action and that it was taking the action in a way that was12
least restrictive to person's right to freely exercise their religious beliefs. This13
rule was set forth in the case of Sherbert v. Verner, 374 U.S. 398 (1963), among14
other cases.15
D. It was the intent of the legislature and the people of Louisiana to16
provide that level of protection to its citizens.17
E. In 1990, the United States Supreme Court, in Employment Division18
v. Smith, 494 U.S. 872 (1990), reduced the protection available to persons in the19
exercise of their religious beliefs where a law was facially neutral or generally20
applicable. In such case, the government need only give a rational basis for the21
action and need not supply the least restrictive means to achieve their goal.22
F. The courts of Louisiana have not adopted the standard set forth in23
Employment Division v. Smith. It was and continues to be the intent of this state24
that the protections afforded by the Sherbert case apply in Louisiana.25
§5232. Free Exercise of Religion Protected26
Government may not substantially burden a person's exercise of religion,27
even if the burden results from a facially neutral rule or a rule of general28
applicability, unless it demonstrates that application of the burden to the person29 SB NO. 606
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is:1
A. Essential to further a compelling governmental interest, and2
B. The least restrictive means of furthering that compelling3
governmental interest.4
§5233. Definitions5
In this Part, unless the context otherwise requires;6
A. "Substantially burden" means that the government, directly or7
indirectly, does any of the following:8
(1) Significantly constrains or inhibits conduct or expression mandated9
by a person's sincerely held religious belief.10
(2) Significantly curtails a person's ability to express adherence to the11
person's religious faith.12
(3) Denies a person a reasonable opportunity to engage in activities13
which are fundamental to the persons religion.14
(4) Compels conduct or expression which violates a specific tenet of a15
person's religious faith.16
B. "Exercise of religion" means the ability to act or refuse to act in a17
manner substantially motivated by a sincerely held religious belief, whether or18
not the exercise is compulsory or a central part or central requirement of the19
person's religious belief.20
C. "Religion" means the practice or observance of religion under Article21
1 Section 8 of the Louisiana Constitution and the First Amendment of the22
United States Constitution.23
D. "Person" includes an individual or a church, association of churches24
or other religious order, body or institution which qualifies for exemption from25
taxation under Section 501(3) or (d) of the Internal Revenue Code of 198626
(Public law 99-514, 26 U.S.C. Section 501).27
E. "Government" or "governmental agency" includes any of the28
following:29 SB NO. 606
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(1) Any board, commission, department, agency, special district,1
authority, or other entity of the state.2
(2) Any political subdivision of this state including any parish,3
municipality, special district, school board, sheriff, public board, institution,4
department, commission, district, corporation, agency, authority, or any agency5
or subdivision of any of these.6
(3) Any other public or governmental body of any kind which is not a7
state agency8
(4) Anyofficial or other person acting under color of law.9
F. "Demonstrates" means meets the burdens of going forward with10
evidence and persuasion under the standard of clear and convincing evidence.11
§5234. Exceptions12
A. Nothing in this Part shall be construed to allow any person to cause13
physical injury to another person.14
B. A compelling interest may include legitimate penological interests15
needed to protect the safety and security of incarcerated persons and16
correctional facilities, but shall not outweigh reasonable requests by17
incarcerated individuals for the opportunity to pray, reasonable access to18
clergy, use of religious materials that are not violent or profane, and reasonable19
dietary requests.20
C. Nothing in this Part shall be construed to authorize same sex21
marriages, unions, or the equivalent thereof.22
§5235. Applicability23
This Part applies to all state laws and local ordinances and the24
implementation of those laws and ordinances, whether statutory or otherwise25
and whether enacted or adopted before, on or after the effective date of this26
Chapter. Nothing in this Act shall create or preclude a right of any religious27
organization to receive funding or other assistance from a government, or of28
any person to receive government funding for a religious activity.29 SB NO. 606
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§5236. Remedies1
A person whose religious exercise is being, has been, or is likely to be2
burdened in violation of this Part may assert that violation as a claim or defense3
in a judicial proceeding and obtain appropriate relief, without regard to4
whether the proceeding is brought in the name of the state or by any other5
person, including:6
(1) Injunctive or declaratory relief against a government agency or7
person acting under color of law that violates or proposes to violate these8
provisions.9
(2) The actual damages, reasonable attorney fees and costs.10
§5237. Notice11
A. A person may not bring an action in court to assert a claim under this12
Part unless, at least thirty days prior to bringing the action, the person gives13
written notice to the person burdening their free exercise, and any14
governmental agency authorizing said act, by certified mail, return receipt15
requested, informing the person and the agency of all of the following:16
(1) The person's free exercise of religion is being, has been, or is about17
to be substantially burdened by an exercise of the agency's governmental18
authority.19
(2) A description of the act or refusal to act which is burdening, has20
burdened or is about to burden the person's free exercise of religion.21
(3) The manner in which the exercise of the governmental authority22
burdens the person's free exercise of religion.23
B. Provided however, a person may bring an action in court without24
providing the notice required by Subsection (A) of this Section if any of the25
following occur:26
(1) The exercise of governmental authority which threatens to27
substantially burden the person's free exercise of religion is imminent.28
(2) The person was not informed and did not otherwise have knowledge29 SB NO. 606
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of the exercise of the governmental authority in time to reasonably provide1
notice.2
(3) The provision of the notice would delay an action to the extent that3
the action would be dismissed as untimely.4
(4) The claim or defense is asserted as a counterclaim in a pending5
proceeding.6
§5238. Remediation7
Prior to the expiration of the thirty-day period referred to in R.S.8
13:5238, an agency which receives notice in accordance with R.S. 13:5238 may9
remedy the substantial burden on the person's free exercise of religion. A10
person with respect to whom a substantial burden on the person's free exercise11
of religion has been cured may not bring an action under this Section or must12
dismiss such action if it is already pending.13
§5239. Limitations and Procedures14
A. Except as stated in Subsection (B) of this Section, the provisions of15
the Louisiana Governmental Claims Act, R.S. 13:5101 through 13:5108, shall16
apply to an action under this Act.17
B. A person must bring an action to assert a claim for damages under18
this Part not later than one year after the date the person knew or should have19
known of the substantial burden on the person's free exercise of religion.20
Mailing notice under R.S. 13:5238 shall toll the one-year period until the21
seventy fifth day after the date on which the notice is mailed.22
§5240. Immunity Waived23
Immunity from liability of the government agency and its employees is24
waived for an action brought under this Part.25
§5241. Fraudulent or Frivolous Claims26
A. Any person found by a court of competent jurisdiction to have27
abused the protection of this Part by filing a frivolous or fraudulent claim may28
be assessed the court costs of the governmental entity and may be enjoined from29 SB NO. 606
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filing further claims under this Part without leave of the court.1
B. A "fraudulent claim" means a claim that is dishonest in fact or that2
is made principally for a patently improper purpose, such as to harass the3
opposing party.4
C. A "frivolous claim" means a claim which lacks merit under existing5
law and which cannot be supported by a good faith argument for the extension,6
modification, or reversal of existing law or the establishment of new law.7
§5242. Construction of Part8
A. The protections of this Part are in addition to the protections granted9
by federal law and the state and federal constitutions.10
B. This Part shall not affect the grant of benefits or tax exemptions to11
religious organizations.12
C. This Part shall not affect, interpret, or in any way address that13
portion of the First Amendment to the Constitution of the United States and of14
Article 1, Section 8 or the Louisiana Constitution that prohibits laws respecting15
the establishment of religion.16
§5243. Severability17
If any provision of this Part or its application to any person or18
circumstance is held invalid, the invalidity does not affect other provisions or19
applications of this Part that can be given effect without the invalid provision20
or application and to this end the provisions of the Part are severable.21
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Heyward Jeffers.
DIGEST
Proposed law creates the Preservation of Religious Freedom Act.
Proposed law provides that government may not substantially burden a person's exercise of
religion, even if the burden results from a facially neutral rule or a rule of general
applicability, unless it demonstrates that application of the burden to the person is essential
to further a compelling governmental interest and is the least restrictive means of furthering
that compelling governmental interest.
Proposed law provides the following definitions: SB NO. 606
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(1)"Substantially burden" means that the government, directly or indirectly, does any
of the following:
(a)Significantly constrains or inhibits conduct or expression mandated by a person's
sincerely held religious belief.
(b)Significantly curtails a person's ability to express adherence to the person's religious
faith.
(c)Denies a person a reasonable opportunity to engage in activities which are
fundamental to the persons religion.
(d)Compels conduct or expression which violates a specific tenet of a person's religious
faith.
(2)"Exercise of religion" means the ability to act or refuse to act in a manner
substantially motivated by a sincerely held religious belief, whether or not the
exercise is compulsory or a central part or central requirement of the person's
religious belief.
(3)"Religion" means the practice or observance of religion under the Louisiana
Constitution and the First Amendment of the United States Constitution.
(4)"Person" includes an individual or a church, association of churches or other
religious order, body or institution which qualifies for exemption from taxation
under the Internal Revenue Code.
(5)"Government" or "governmental agency" includes any of the following:
(a)Any board, commission, department, agency, special district, authority, or other
entity of the state.
(b)Any political subdivision of this state including any parish, municipality, special
district, school board, sheriff, public board, institution, department, commission,
district, corporation, agency, authority, or any agency or subdivision of any of these.
(c)Any other public or governmental body of any kind which is not a state agency.
(d)Any official or other person acting under color of law.
(6)"Demonstrates" means meets the burdens of going forward with evidence and
persuasion under the standard of clear and convincing evidence.
Proposed law provides that nothing in proposed law shall be construed to allow any person
to cause physical injury to another person.
Proposed law provides that a compelling interest may include legitimate penological
interests needed to protect the safety and security of incarcerated persons and correctional
facilities, but that such shall not outweigh reasonable requests by incarcerated individuals
for the opportunity to pray, reasonable access to clergy, use of religious materials that are
not violent or profane, and reasonable dietary requests.
Proposed law provides that nothing in proposed law shall be construed to authorize same sex
marriages, unions, or the equivalent thereof.
Proposed law provides that it shall be applicable to all state laws and local ordinances and
the implementation of those laws and ordinances, whether statutory or otherwise and
whether enacted or adopted before, on or after the effective date of proposed law. Provides SB NO. 606
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that nothing in proposed law shall create or preclude a right of any religious organization to
receive funding or other assistance from a government, or of any person to receive
government funding for a religious activity.
Proposed law provides that a person whose religious exercise is being, has been, or is likely
to be burdened in violation of proposed law may assert that violation as a claim or defense
in a judicial proceeding and obtain appropriate relief, without regard to whether the
proceeding is brought in the name of the state or by any other person, including:
(1)Injunctive or declaratory relief against a government agency or person acting under
color of law that violates or proposes to violate these provisions.
(2)The actual damages, reasonable attorney fees and costs.
Proposed law provides that a person may not bring an action in court to assert a claim unless,
at least 30 days prior to bringing the action, the person gives written notice to the person
burdening their free exercise, and any governmental agency authorizing such, by certified
mail, return receipt requested, informing the person and the agency of all of the following:
(1)The person's free exercise of religion is being, has been, or is about to be
substantially burdened by an exercise of the agency's governmental authority.
(2)A description of the act or refusal to act which is burdening, has burdened or is about
to burden the person's free exercise of religion.
(3)The manner in which the exercise of the governmental authority burdens the person's
free exercise of religion.
Proposed law provides a exception to the 30-day notice if any of the following occur:
(1)The exercise of governmental authority which threatens to substantially burden the
person's free exercise of religion is imminent.
(2)The person was not informed and did not otherwise have knowledge of the exercise
of the governmental authority in time to reasonably provide notice.
(3)The provision of the notice would delay an action to the extent that the action would
be dismissed as untimely.
(4)The claim or defense is asserted as a counterclaim in a pending proceeding.
Proposed law provides that prior to the expiration of the 30-day period, an agency which
receives notice may remedy the substantial burden on the person's free exercise of religion.
A person with respect to whom a substantial burden on the person's free exercise of religion
has been cured may not bring an action or must dismiss such action if it is already pending.
Proposed law provides that the provisions of the Louisiana Governmental Claims Act shall
apply to an action under proposed law.
Proposed law provides that a person must bring an action to assert a claim for damages not
later than one year after the date the person knew or should have known of the substantial
burden on the person's free exercise of religion. Provides that mailing the 30-day notice
shall toll the one-year period until the 75
th
day after the date on which the notice is mailed.
Proposed law provides that immunity from liability of the government agency and its
employees is waived for an action brought under proposed law.
Proposed law provides that any person found by a court of competent jurisdiction to have SB NO. 606
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abused the protection of proposed law by filing a frivolous or fraudulent claim may be
assessed the court costs of the governmental entity and may be enjoined from filing further
claims without leave of the court.
Proposed law provides that a "fraudulent claim" means a claim that is dishonest in fact or
that is made principally for a patently improper purpose, such as to harass the opposing
party.
Proposed law provides that a "frivolous claim" means a claim which lacks merit under
existing law and which cannot be supported by a good faith argument for the extension,
modification, or reversal of existing law or the establishment of new law.
Proposed law provides that the protections of proposed law are in addition to the protections
granted by federal law and the state and federal constitutions.
Proposed law provides that it shall not affect the grant of benefits or tax exemptions to
religious organizations.
Proposed law provides that it shall not affect, interpret, or in any way address that portion
of the First Amendment to the Constitution of the United States and of Article 1, Section 8
or the Louisiana Constitution that prohibits laws respecting the establishment of religion.
Proposed law provides that the provisions of proposed law are severable.
Effective August 15, 2010.
(Adds R.S. 13:5230-5244)