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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 5242, 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 certain limitations and procedures; to provide relative to6
fraudulent or frivolous claims; and to provide for related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. Part XIX of Chapter 32 of Title 13 of the Louisiana Revised Statutes of9
1950, comprised of R.S. 13:5230 through 5242, is hereby enacted to read as follows: 10
PART XIX. PRESERVATION OF RELIGIOUS FREEDOM ACT11
§5230. Short title12
This part shall be known as and may be cited as the "Preservation of13
Religious Freedom Act".14
§5231.Legislative findings15
The legislature finds and declares that:16
A. Free exercise of religion is a fundamental right of the highest order17 SB NO. 606
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in this state.1
B. In 1974, this legislature and the people of Louisiana chose to adopt2
the exact language found in the First Amendment of the United States3
Constitution regarding religious free exercise as Article 1, Section 8 of the4
Louisiana Constitution.5
C. At the time of adoption of Article 1, Section 8, the United States6
Supreme Court interpreted the First Amendment to provide the same level of7
protection for an action of the government that explicitly burdened religious8
exercise as for an action that indirectly burdened religious exercise through its9
effect. In both instances, the government had to show that it had a compelling10
interest in taking a particular action and that it was taking the action in a way11
that was least restrictive of a person's right to freely exercise their religious12
beliefs. This rule was set forth in the case of Sherbert v. Verner, 374 U.S. 39813
(1963), among other cases.14
D. It was the intent of the legislature and the people of Louisiana in 197415
to provide that level of protection to its citizens.16
E. In 1990, the United States Supreme Court, in Employment Division17
v. Smith, 494 U.S. 872 (1990), reduced the protection available to persons in the18
exercise of their religious beliefs where a law was facially neutral or generally19
applicable. In such case, the government need only give a rational basis for the20
action and need not supply the least restrictive means to achieve its goal.21
F. The courts of Louisiana have not adopted the standard set forth in22
Employment Division v. Smith. It was and continues to be the intent of this state23
that the protections afforded by the Sherbert case apply in Louisiana.24
§5232. Free exercise of religion protected25
Government may not substantially burden a person's exercise of religion,26
even if the burden results from a facially neutral rule or a rule of general27
applicability, unless it demonstrates that application of the burden to the person28
is:29 SB NO. 606
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A. Essential to further a compelling governmental interest, and1
B. The least restrictive means of furthering that compelling2
governmental interest.3
§5233. Definitions4
In this Part, unless the context otherwise requires;5
A. "Burden" means that the government, directly or indirectly, does any6
of the following:7
(1) Constrains or inhibits conduct or expression mandated by a person's8
sincerely held religious tenet or belief.9
(2) Significantly curtails a person's ability to express adherence to the10
person's religious faith.11
(3) Denies a person a reasonable opportunity to engage in activities12
which are fundamental to the person's religion.13
(4) Compels conduct or expression which violates a tenet or belief of a14
person's religious faith.15
B. "Exercise of religion" means the practice or observance of religion16
under Article 1, Section 8, of the Louisiana Constitution and the First17
Amendment of the United States Constitution and includes the ability to act or18
refuse to act in a manner substantially motivated by a sincerely held religious19
belief, whether or not the exercise is compulsory or a central part or central20
requirement of the person's religious belief.21
C. "A person" includes an individual and also includes a church,22
association of churches or other religious order, body or institution which23
qualifies for exemption from taxation under Section 501(c)(3) or (d) of the24
Internal Revenue Code of 1986 (Public law 99-514, 26 U.S.C. Section 501).25
D. "Government" or "governmental agency" includes any of the26
following:27
(1) Any board, commission, court, department, agency, special district,28
authority, or other entity of the state.29 SB NO. 606
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(2) Any political subdivision of this state including any parish,1
municipality, special district, school board, sheriff, public board, institution,2
department, commission, district, corporation, agency, court, authority, or any3
agency or subdivision of any of these.4
(3) Any other public or governmental body of any kind which is not a5
state agency.6
(4) Any official or other person acting under color of law.7
E. "Demonstrates" means meets the burdens of going forward with8
evidence and persuasion.9
§5234. Exceptions10
A. Nothing in this Part shall be construed to allow any person to cause11
physical injury to another person.12
B. A compelling interest may include legitimate penological interests13
needed to protect the safety and security of incarcerated persons and14
correctional facilities, but shall not outweigh reasonable requests by15
incarcerated individuals for the opportunity to pray, reasonable access to16
clergy, use of religious materials that are not violent or profane, and reasonable17
dietary requests.18
C. Nothing in this Part shall be construed to authorize any relationship,19
marital or otherwise, that would violate Article XII, Section 15, of the Louisiana20
Constitution.21
D. Nothing in this Part shall be construed to authorize the enforcement22
of any law, rule, or legal code or system established and used or applied in a23
jurisdiction outside of the states or territories of the United States.24
§5235. Applicability25
A. This Part applies to all state laws and local ordinances and the26
implementation of those laws and ordinances, whether statutory or otherwise27
and whether enacted or adopted before, on or after the effective date of this28
Part.29 SB NO. 606
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B. Nothing in this Part shall create or preclude a right of any religious1
organization to receive funding or other assistance from a government, or of2
any person to receive government funding for a religious activity.3
§5236. Remedies4
A person whose religious exercise is being, has been, or is likely to be5
burdened in violation of this Part may assert that violation as a claim or defense6
in a judicial proceeding and obtain appropriate relief, without regard to7
whether the proceeding is brought in the name of the state or by any other8
person, including but not limited to:9
(1) Injunctive relief, protective order, writ of mandamus or prohibition,10
or declaratory relief to prevent any violation of these provisions.11
(2) The actual damages, reasonable attorney fees and costs.12
§5237. Notice13
A. A person may not bring an action in court to assert a claim under this14
Part unless, at least thirty days prior to bringing the action, the person gives15
written notice to the person burdening their free exercise, and any16
governmental agency authorizing said act, by certified mail, return receipt17
requested, informing the person and the agency of all of the following:18
(1) The person's free exercise of religion is being, has been, or is about19
to be substantially burdened by an exercise of the agency's governmental20
authority.21
(2) A description of the act or refusal to act which is burdening, has22
burdened or is about to burden the person's free exercise of religion.23
(3) The manner in which the exercise of the governmental authority24
burdens the person's free exercise of religion.25
B. Provided however, a person may bring an action in court without26
providing the notice required by Subsection (A) of this Section if any of the27
following occur:28
(1) The exercise of governmental authority which threatens to29 SB NO. 606
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substantially burden the person's free exercise of religion is imminent.1
(2) The person was not informed and did not otherwise have knowledge2
of the exercise of the governmental authority in time to reasonably provide3
notice.4
(3) The provision of the notice would delay an action to the extent that5
the action would be dismissed as untimely.6
(4) The claim is asserted as a counterclaim, objection, or defense in a7
pending proceeding.8
§5238. Remediation9
Prior to the expiration of the thirty-day period referred to in R.S.10
13:5237, an agency which receives notice in accordance with R.S. 13:5237 may11
remedy the substantial burden on the person's free exercise of religion. A12
person with respect to whom a substantial burden on the person's free exercise13
of religion has been cured may not bring an action under this Section or must14
dismiss such action if it is already pending.15
§5239. Limitations and procedures16
A. Except as stated in Subsection (B) of this Section, and except as to17
objections, protective orders or writs of mandamus or prohibition, the18
provisions of the Louisiana Governmental Claims Act, R.S. 13:5101 through19
5108, the Corrections Administrative Remedy Procedure, R.S. 15:1171 through20
1179, and the Prison Litigation Reform Act, R.S. 15:1181 through 1191, as21
applicable, shall apply to an action under this Act.22
B. A person must bring an action to assert a claim for damages under23
this Part not later than one year after the date the person knew or should have24
known of the substantial burden on the person's free exercise of religion.25
Mailing notice under R.S. 13:5237 shall toll the one-year period until the26
seventy-fifth day after the date on which the notice is mailed.27
§5240. Fraudulent or frivolous claims28
A. Any person found by a court of competent jurisdiction to have29 SB NO. 606
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abused the protection of this Part by filing a frivolous or fraudulent claim may1
be assessed the court costs of the governmental entity and may be enjoined from2
filing further claims under this Part without leave of the court.3
B. A "fraudulent claim" means a claim that is dishonest in fact or that4
is made principally for a patently improper purpose, such as to harass the5
opposing party.6
C. A "frivolous claim" means a claim which lacks merit under existing7
law and which cannot be supported by a good faith argument for the extension,8
modification, or reversal of existing law or the establishment of new law.9
§5241. Construction of Part10
A. The protections of this Part are in addition to the protections granted11
by federal law and the state and federal constitutions.12
B. This Part shall not affect the grant of benefits or tax exemptions to13
religious organizations.14
C. This Part shall not affect, interpret, or in any way address that15
portion of the First Amendment to the Constitution of the United States and of16
Article 1, Section 8 or the Louisiana Constitution that prohibits laws respecting17
the establishment of religion.18
§5242. Severability19
If any provision of this Part or its application to any person or20
circumstance is held invalid, the invalidity does not affect other provisions or21
applications of this Part that can be given effect without the invalid provision22
or application and to this end the provisions of the Part are severable.23
The original instrument was prepared by Heyward Jeffers. The following
digest, which does not constitute a part of the legislative instrument, was
prepared by Jerry G. Jones.
DIGEST
Martiny (SB 606)
Proposed law creates the Preservation of Religious Freedom Act.
Proposed law provides findings, including the intent of the legislature and people of
Louisiana in 1974 when adopting Article I, Section 8, of the Louisiana Constitution. SB NO. 606
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[Note: Art. I, Sec. 8:
"§8. Freedom of Religion
Section 8. No law shall be enacted respecting an establishment of religion or
prohibiting the free exercise thereof."]
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:
(1)"Burden" means that the government, directly or indirectly, does any of the
following:
(a)Constrains or inhibits conduct or expression mandated by a person's sincerely held
religious tenet or 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 person's religion.
(d)Compels conduct or expression which violates a tenet or belief of a person's religious
faith.
(2)"Exercise of religion" means the practice or observance of religion under Art. I, Sec.
8, of the Louisiana Constitution and the First Amendment of the U.S. Constitution
and includes 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)"A person" includes an individual and also includes a church, association of churches
or other religious order, body or institution which qualifies for exemption from
taxation under the Internal Revenue Code.
(4)"Government" or "governmental agency" includes any of the following:
(a)Any board, commission, court, 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, court, 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.
(5)"Demonstrates" means meets the burdens of going forward with evidence and
persuasion.
Proposed law provides that nothing in proposed law shall be construed to allow any person
to cause physical injury to another person. SB NO. 606
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words in boldface type and underscored are additions.
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 any
relationship, marital or otherwise, that would violate Art. XII, Section 15, of the Louisiana
Constitution, prohibiting same-sex marriages and providing that marriage in the state of
Louisiana shall consist only of the union of one man and one woman.
Proposed law further provides that nothing in the proposed law shall be construed to
authorize the enforcement of any law, rule, or legal code or system established and used or
applied in a jurisdiction outside of the states or territories of the U.S.
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
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 but not
limited to:
(1)Injunctive relief, protective order, writ of mandamus or prohibition, or declaratory
relief against a government agency or person acting under color of law to prevent a
violation of the proposed law.
(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 an 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. SB NO. 606
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(4)The claim or defense is asserted as a counterclaim, objection, or defense 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, subject to certain exceptions, the provisions of the Louisiana
Governmental Claims Act, Corrections Administrative Remedy Procedure, and Prison
Litigation Reform 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 any person found by a court of competent jurisdiction to have
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
of 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. 13:5230-5242)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary A to the
original bill.
1. Deleted language waiving governmental immunity for an action under
proposed law.
2. In definition of "burden", changed "significantly constrains" to "constrains";
"religious belief" to "religious tenet or belief"; and "specific tenet" to "tenet
or belief"; SB NO. 606
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3. Added "court" under definition of government.
4. In definition of "demonstrates", deleted standard of clear and convincing
evidence.
5. Added that nothing in proposed law shall be construed to authorize
enforcement of law or legal code established and used outside of U.S.
6. Added writ of mandamus or prohibition as potential relief.
7. Added assertion of claim as potential objection or defense in a pending
proceeding.
8. Added application of Corrections Administrative Remedy Procedure and
Prison Litigation Reform Act.