Text of AR HB 1615 (2023)

Stricken language would be deleted from and underlined language would be added to present law. *MLD102* 3/13/2023 4:30:07 PM MLD102 State of Arkansas 1 94th General Assembly A Bill 2 Regular Session, 2023 HOUSE BILL 1615 3 4 By: Representatives Lundstrum, Bentley, C. Cooper, Crawford, Gazaway, Long, Milligan, Richmond, 5 Underwood, Unger, Watson 6 By: Senators G. Stubblefield, A. Clark 7 8 For An Act To Be Entitled 9 AN ACT TO CREATE THE CONSCIENCE PROTECTION ACT; TO 10 AMEND THE RELIGIOUS FREEDOM RESTORATION ACT; AND FOR 11 OTHER PURPOSES. 12 13 14 Subtitle 15 TO CREATE THE CONSCIENCE PROTECTION ACT; 16 AND TO AMEND THE RELIGIOUS FREEDOM 17 RESTORATION ACT. 18 19 20 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 21 22 SECTION 1. DO NOT CODIFY. Title. 23 This act shall be known and may be cited as the “Conscience Protection 24 Act”. 25 26 SECTION 2. Arkansas Code § 16-123-403 is amended to read as follows: 27 16-123-403. Definitions. 28 As used in this subchapter: 29 (1) “Compelling governmental interest” means a governmental 30 interest of the highest order as long-recognized in the history and 31 traditions of this state, that is necessary to advance a vital interest and 32 cannot otherwise be achieved without burdening the exercise of religion; 33 (2) “Demonstrates” means meets the burdens of going forward with the 34 evidence and of persuasion; 35 (2)(3)(A) “Exercise of religion” means religious exercise the 36 HB1615 2 3/13/2023 4:30:07 PM MLD102 practice or observance of religion. 1 (B) “Exercise of religion” includes without limitation an 2 action that is motivated by a sincerely held religious belief, whether or not 3 the exercise is compulsory or central to a larger system of religious belief; 4 (3)(4) “Government” includes a branch, department, agency, 5 instrumentality, political subdivision, official, or other person acting 6 under color of state law or using any instrumentality of the state to enforce 7 a law, regulation, rule, or policy of the government; and 8 (5) “Person” means an individual, association, partnership, 9 corporation, church, religious institution, estate, trust, foundation, or 10 other legal entity; 11 (4)(6) “State law” includes without limitation a law of a 12 political subdivision, an ordinance, rule, regulation, or policy, whether 13 statutory or otherwise, or other action by the state or any political 14 subdivision of the state or by any public official authorized by law in the 15 state; and 16 (7)(A) “Substantially burden” means any action that directly or 17 indirectly constrains, inhibits, curtails, or denies the exercise of religion 18 by any person or compels any action contrary to a person’s exercise of 19 religion. 20 (B) “Substantially burden” includes without limitation 21 withholding benefits, assessing criminal, civil, or administrative penalties 22 or damages, or exclusion from governmental programs or access to governmental 23 facilities. 24 25 SECTION 3. Arkansas Code § 16-123-404 is amended to read as follows: 26 16-123-404. Free exercise of religion protected. 27 (a) A government shall not substantially burden a person's exercise of 28 religion even if the burden results from a rule of general applicability, 29 except that a government may substantially burden a person's exercise of 30 religion only if it demonstrates unless it is demonstrated that application 31 of the burden to the person in this particular instance is: 32 (1) In furtherance of Essential to further a compelling 33 governmental interest; and 34 (2) The least restrictive means of furthering that compelling 35 governmental interest. 36 HB1615 3 3/13/2023 4:30:07 PM MLD102 (b)(1) A person whose religious exercise has been burdened, or will be 1 burdened, in violation of this section may assert that violation or impending 2 violation as a claim or defense in a judicial or administrative proceeding, 3 regardless of whether the government is a party to the proceeding, and obtain 4 appropriate relief against a government, including declaratory relief, 5 injunctive relief, compensatory damages, and reasonable attorneys' fees and 6 costs. 7 (2) Standing to assert a claim or defense under this section is 8 governed by the general rules of standing under statute, the Arkansas Rules 9 of Criminal Procedure, the Arkansas Rules of Civil Procedure, or any court 10 holding from the state's appellate courts. 11 (c) An action under this subchapter may be commenced and relief may be 12 granted without regard to whether the person commencing the action has sought 13 or exhausted all available administrative remedies. 14 15 SECTION 4. Arkansas Code § 16-123-406, concerning interpretation under 16 the Religious Freedom Restoration Act, is amended to add an additional 17 subsection to read as follows: 18 (d) This subchapter shall be construed in favor of a broad protection 19 of free exercise of religious beliefs, to the maximum extent permitted by the 20 Arkansas Constitution and the United States Constitution. 21 22 SECTION 5. Arkansas Code Title 16, Chapter, 123, is amended to add an 23 additional subchapter to read as follows: 24 Subchapter 5. Religious Nondiscrimination. 25 26 16-123-501. Legislative intent. 27 It is the intent of the General Assembly to: 28 (1) Prohibit government discrimination against religious 29 organizations based upon the religious organizations’ religious identity or 30 conduct; 31 (2) Ensure that faith-based adoption and foster-care providers 32 remain free to serve children in need and work with the state to find loving, 33 permanent homes for children; 34 (3) Prohibit the government from discriminating against certain 35 individuals and organizations because of their beliefs regarding marriage or 36 HB1615 4 3/13/2023 4:30:07 PM MLD102 what it means to be female and male; and 1 (4) Ensure that individuals and organizations cannot be 2 compelled, either by the government or through a lawsuit initiated by a 3 private party, to engage in conduct that conflicts with their beliefs, or be 4 punished or discriminated against for declining to engage in conduct that 5 conflicts with their beliefs. 6 7 16-123-502. Definitions. 8 As used in this subchapter: 9 (1) “Adoption or foster care” or “adoption or foster-care 10 service” means social services provided to or on behalf of children, 11 including without limitation: 12 (A) Assisting abused or neglected children; 13 (B) Teaching children and parents occupational, 14 homemaking, and other domestic skills; 15 (C) Promoting foster parenting; 16 (D) Providing foster homes, residential care, group homes, 17 or temporary group shelters for children; 18 (E) Recruiting foster parents; 19 (F) Placing children in foster homes; 20 (G) Licensing or certifying foster homes; 21 (H) Promoting adoption or recruiting adoptive parents; 22 (I) Assisting adoptions or supporting adoptive families; 23 (J) Performing or assisting home studies; 24 (K) Assisting kinship guardianships or kinship caregivers; 25 (L) Providing family preservation services; 26 (M) Providing family support services; and 27 (N) Providing temporary family reunification services; 28 (2) “Belief about biological sex or marriage” means a belief 29 based on sincerely held religious or philosophical premises: 30 (A) Regarding the sex of two (2) individuals who may enter 31 into a marriage; or 32 (B) That male or man or female or woman refers exclusively 33 to an individual’s immutable biological sex as objectively determined by 34 anatomy and genetics at the time of birth; 35 (3) “Discriminatory action” means any action taken by state 36 HB1615 5 3/13/2023 4:30:07 PM MLD102 government to: 1 (A) Alter in any way the tax treatment of, or cause any 2 tax, penalty, or payment to be assessed against, or deny, delay, revoke, or 3 otherwise make unavailable an exemption from taxation of any person; 4 (B) Disallow, deny, or otherwise make unavailable a 5 deduction for state tax purposes of any charitable contribution made to or by 6 any person; 7 (C) Withhold, reduce, exclude, terminate, materially alter 8 the terms or conditions of, or otherwise make unavailable, including by 9 inserting contractual provisions that contradict a person's sincerely held 10 religious beliefs, or deny any state grant, contract, subcontract, 11 cooperative agreement, guarantee, loan, scholarship, or other similar benefit 12 from or to such person; 13 (D) Withhold, reduce, exclude, terminate, materially alter 14 the terms or conditions of, or otherwise make unavailable or deny any 15 entitlement or benefit under a state benefit program from or to a person; 16 (E) Impose, levy, or assess a monetary fine, fee, penalty, 17 damages award, or injunction upon a person; 18 (F) Withhold, reduce, exclude, terminate, materially alter 19 the terms or conditions of, or otherwise make unavailable or deny any 20 license, certification, accreditation, custody award or agreement, diploma, 21 grade, recognition, or other similar benefit, position, or status from or to 22 any person; or 23 (G) Refuse to hire or promote, force to resign, fire, 24 demote, sanction, discipline, adversely alter the terms or conditions of 25 employment, or retaliate or take other adverse employment action against a 26 person employed or commissioned by state government; 27 (4) “State government” means: 28 (A) The state or a political subdivision of the state; 29 (B) An agency of the state or of a political subdivision 30 of the state, including without limitation a department, bureau, board, 31 commission, council, court, or public institution of higher education; and 32 (C) Any person acting under color of state law or using 33 any government instrumentality to enforce a law, regulation, rule, or policy 34 of government; 35 (5) “License-seeking student” means an individual who is enrolled 36 HB1615 6 3/13/2023 4:30:07 PM MLD102 in an educational institution in the state for the purpose of obtaining the 1 necessary educational requirements to engage in an occupation or profession 2 that is licensed, accredited, or certified by state government; 3 (6) “Occupational organization” means an entity of which an 4 individual or license-seeking student must be a member in order to engage in 5 a specified occupation or profession within the state, including an entity 6 for which exclusion from the entity would substantially impair an 7 individual’s ability to engage in the occupation or profession; 8 (7) “Person” means: 9 (A) An individual, in his or her personal capacity 10 regardless of religious affiliation or lack thereof, or in his or her 11 capacity as a member, officer, owner, volunteer, employee, manager, religious 12 leader, clergy, or minister of any religious organization; 13 (B) A religious organization; 14 (C) A sole proprietorship, partnership, trust, closely 15 held corporation, or other closely held entity operating with a sincerely 16 held religious belief, including a belief about biological sex or marriage; 17 or 18 (D) Cooperatives, ventures, or enterprises comprised of 19 two (2) or more individuals or entities described in subdivision (7) 20 regardless of nonprofit or for-profit status; 21 (8) “Religious organization” means: 22 (A) A house of worship, including without limitation a 23 church, synagogue, shrine, mosque, or temple; 24 (B) A religious group, corporation, association, school or 25 educational institution, ministry, order, society, or similar entity, 26 regardless of whether it is integrated or affiliated with a house of worship; 27 or 28 (C) An officer, owner, employee, manager, religious 29 leader, clergy, or minister of an entity or organization described in 30 subdivision (8); and 31 (9) “State benefit program” means any program administered, 32 controlled, or funded by the state government, that provides cash, payments, 33 grants, contracts, loans, or in-kind assistance. 34 35 16-123-503. Religious discrimination prohibited. 36 HB1615 7 3/13/2023 4:30:07 PM MLD102 (a) The state government shall not take any discriminatory action 1 against a religious organization on the basis of the religious identity or 2 status of the religious organization, including the religious organization 3 maintaining policies and procedures in accordance with a sincerely held 4 religious belief, or the religious organization engaging in religious conduct 5 protected by the First Amendment to the United States Constitution or the 6 Arkansas Constitution unless it is demonstrated that the action against the 7 religious organization in this particular instance is: 8 (1) Essential to further a compelling governmental interest; and 9 (2) The least restrictive means of furthering that compelling 10 governmental interest. 11 (b) The state government shall not take any discriminatory action 12 against a religious organization that advertises, provides, or facilitates 13 adoption or foster care, wholly or partially on the basis that the religious 14 organization has provided or declined to provide any adoption or foster-care 15 service, or related service, based upon or in a manner consistent with a 16 sincerely held religious belief unless it is demonstrated that the action 17 against the religious organization in this particular instance is: 18 (1) Essential to further a compelling governmental interest; and 19 (2) The least restrictive means of furthering that compelling 20 governmental interest. 21 (c)(1) The state government shall not take any discriminatory action 22 against a person to whom the state grants custody of a foster or adoptive 23 child, or who seeks from the state custody of a foster or adoptive child, 24 wholly or partially on the basis that the person guides, instructs, or raises 25 a child, or intends to guide, instruct, or raise a child, based upon or in a 26 manner consistent with a sincerely held religious belief unless it is 27 demonstrated that the action against the person in this particular instance 28 is: 29 (A) Essential to further a compelling governmental 30 interest; and 31 (B) The least restrictive means of furthering that 32 compelling governmental interest. 33 (2) The state government may consider whether a person shares 34 the same religion or faith tradition as a foster or adoptive child when 35 considering placement of the foster or adoptive child in order to prioritize 36 HB1615 8 3/13/2023 4:30:07 PM MLD102 placement with a person of the same religion or faith tradition. 1 (d) The state government shall consider any person for a contract, 2 grant, or agreement that would otherwise be considered for a contract, grant, 3 or agreement but for a determination against the person wholly or partially 4 on the basis that the person maintains policies and procedures, or acts in 5 accordance with, a sincerely held religious belief unless refusal of 6 consideration of the person in this particular instance is: 7 (1) Essential to further a compelling governmental interest; and 8 (2) The least restrictive means of furthering that compelling 9 governmental interest. 10 11 16-123-504. Degrees, accreditation, licensure, and certification. 12 (a) The state government shall consider accredited, licensed, or 13 certified any person that would otherwise be accredited, licensed, or 14 certified, respectively, for any purposes under state law but for a 15 determination against the person wholly or partially on the basis that the 16 person believes, maintains policies and procedures, or acts in accordance 17 with, a sincerely held religious belief, including a belief about biological 18 sex or marriage unless it is demonstrated that refusal of consideration of 19 the accreditation, license, or certification of the person in this particular 20 instance is: 21 (1) Essential to further a compelling governmental interest; and 22 (2) The least restrictive means of furthering that compelling 23 governmental interest. 24 (b) The state government shall not revoke, decline to renew, or 25 decline to grant a college or graduate degree, license, accreditation, or 26 certification to a person based upon the inability of the person to assist or 27 provide professional services to a client or potential client in pursuit of 28 goals, outcomes, or behaviors that conflict with a sincerely held religious 29 belief held by the person unless it is demonstrated that the revocation, 30 declining to renew or grant a college or graduate degree, license, 31 accreditation, or certification of that person in this particular instance 32 is: 33 (1) Essential to further a compelling governmental interest; and 34 (2) The least restrictive means of furthering that compelling 35 governmental interest. 36 HB1615 9 3/13/2023 4:30:07 PM MLD102 (c) As a condition of obtaining or maintaining a college or graduate 1 degree, license, accreditation, or certification to engage in certain 2 occupations or professions, the state government shall not require a person 3 to be a member of any occupational organization that requires its members to 4 assist or provide professional services to a client or potential client in 5 pursuit of goals, outcomes, or behaviors that conflict with a sincerely held 6 religious belief held by the person unless it is demonstrated that the 7 requirement that the person be a member of the occupational organization in 8 this particular instance is: 9 (1) Essential to further a compelling governmental interest; and 10 (2) The least restrictive means of furthering that compelling 11 governmental interest. 12 (d) An educational institution within the state shall not require a 13 license-seeking student to assist or provide services to a client or 14 potential client in pursuit of goals, outcomes, or behaviors that conflict 15 with the student's sincerely held religious belief unless it is demonstrated 16 that the requirement that the person assist or provide services in this 17 particular instance is: 18 (1) Essential to further a compelling governmental interest; and 19 (2) The least restrictive means of furthering that compelling 20 governmental interest. 21 (e) A person's inability to assist or provide professional services to 22 a client or potential client in pursuit of goals, outcomes, or behaviors that 23 conflict with the person's sincerely held religious belief, except for those 24 professional healthcare services that are governed under § 17-80-501 et seq., 25 shall not be the basis for a: 26 (1) Hearing or action by a state government entity or 27 educational institution: 28 (2) Civil cause of action; or 29 (3) Criminal prosecution. 30 (f) This section does not limit any other rights or protections 31 afforded to a person or a license-seeking student under the Arkansas 32 Constitution and the United States Constitution, state law, or state 33 regulatory authority. 34 35 16-123-505. Beliefs regarding biological sex and marriage. 36 HB1615 10 3/13/2023 4:30:07 PM MLD102 (a) The state government shall not take any discriminatory action 1 against: 2 (1) A religious organization wholly or partially on the basis 3 that the religious organization: 4 (A) Solemnizes or declines to solemnize any marriage, or 5 provides or declines to provide services, accommodations, facilities, goods, 6 or privileges for a purpose related to the solemnization, formation, 7 celebration, or recognition of any marriage, based upon or in a manner 8 consistent with a belief about biological sex or marriage; 9 (B) Makes any employment-related decision, including the 10 decision whether or not to hire, terminate, or discipline an individual whose 11 conduct or religious beliefs are inconsistent with those of the religious 12 organization, based upon or in a manner consistent with a belief about 13 biological sex or marriage; or 14 (C) Makes any decision concerning the sale, rental, 15 occupancy of, or terms and conditions of occupying a dwelling or other 16 housing under its control based upon or in a manner consistent with a belief 17 about biological sex or marriage; 18 (2) A person wholly or partially on the basis that the person 19 has provided or declined to provide the following services, accommodations, 20 facilities, goods, or privileges for a purpose related to the solemnization, 21 formation, celebration, or recognition of any marriage, based upon or in a 22 manner consistent with a belief about biological sex or marriage: 23 (A) Photography, poetry, videography, disc-jockey 24 services, wedding planning, printing, web design, graphic design, publishing, 25 counseling, or similar marriage-related goods or services; or 26 (B) Floral arrangements, dress making, cake or pastry 27 artistry, assembly hall or other wedding-venue rentals, car or other vehicle 28 service rentals, jewelry sales and services, or similar marriage-related 29 services, accommodations, facilities, or goods; 30 (3) A person wholly or partially on the basis that the person 31 maintains separate dress codes, restrooms, spas, baths, showers, dressing 32 rooms, locker rooms, or other intimate facilities or settings based on 33 biological sex; or 34 (4) A state government employee wholly or partially on the basis 35 that the state government employee lawfully speaks or engages in expressive 36 HB1615 11 3/13/2023 4:30:07 PM MLD102 conduct based upon or in a manner consistent with a belief about biological 1 sex or marriage if the state government employee’s speech or expressive 2 conduct occurs: 3 (A) In the workplace consistent with the time, place, 4 manner, and frequency of any other expression of a religious, political, or 5 moral belief or conviction allowed; or 6 (B) Outside the workplace in the employee’s personal 7 capacity and outside the course of performing work duties. 8 (b) A person employed or acting on behalf of the state government who 9 has authority to: 10 (1)(A) Authorize or license marriages, including without 11 limitation clerks, registers of deeds, or their deputies, may seek recusal 12 from authorizing or licensing lawful marriages based upon or in a manner 13 consistent with a belief about biological sex or marriage. 14 (B) A person making a recusal request under subdivision 15 (b)(1)(A) of this section shall provide prior written notice to the state 16 government, and the state government shall not take any discriminatory action 17 against that person wholly or partially on the basis of such recusal; or 18 (2)(A) Perform or solemnize marriages, including without 19 limitation to judges, magistrates, justices of the peace, or their deputies, 20 may seek recusal from performing or solemnizing lawful marriages based upon 21 or in a manner consistent with a belief about biological sex or marriage. 22 (B) Any person making a recusal request under subdivision 23 (b)(2)(A) of this section shall provide prior written notice to the state 24 government, and the state government shall not take any discriminatory action 25 against that person wholly or partially on the basis of the recusal. 26 (c) If a person requests a recusal under subsection (b) of this 27 section, the state government shall take all necessary steps to ensure that 28 the: 29 (1) Authorization and licensing of any legally valid marriage is 30 not impeded or substantially delayed as a result of the recusal; and 31 (2) Performance or solemnization of any legally valid marriage 32 is not impeded or substantially delayed as a result of the recusal. 33 34 16-123-506. Remedies. 35 (a) A person may assert a violation of this subchapter as a claim 36 HB1615 12 3/13/2023 4:30:07 PM MLD102 against the state government in any judicial or administrative proceeding or 1 as a defense in any judicial or administrative proceeding without regard to 2 whether the judicial or administrative proceeding is brought by or in the 3 name of the state government, any private person, or any other party. 4 (b) An action under this subchapter may be commenced, and relief may 5 be granted, in a court of the state without regard to whether the person 6 commencing the action has sought or exhausted available administrative 7 remedies. 8 (c)(1) A person who successfully asserts a claim or defense under this 9 subchapter may recover declaratory relief, injunctive relief, reasonable 10 attorneys’ fees and costs, and any other appropriate relief. 11 (2) Only declaratory relief and injunctive relief shall be 12 available against a private person not acting under color of state law upon a 13 successful assertion of a defense under this subchapter. 14 (d) A person may not bring an action to assert a claim under this 15 subchapter later than two (2) years after the date that the person knew or 16 should have known that a discriminatory action was taken against that person. 17 (e) For the provision of equitable relief, including reasonable 18 attorney's fees and costs, sovereign, governmental, and qualified immunities 19 to suit and from liability are waived and abolished to the extent of 20 liability created by this subchapter. 21 22 16-123-507. Rules of construction. 23 (a) This subchapter shall be construed in favor of a broad protection 24 of free exercise of religious beliefs, to the maximum extent permitted by the 25 Arkansas Constitution and the United States Constitution. 26 (b)(1) The protection of free exercise of religious beliefs and moral 27 convictions afforded by this subchapter are in addition to the protections 28 provided under federal law, state law, the Arkansas Constitution, and the 29 United States Constitution. 30 (2) This subchapter does not: 31 (A) Preempt or repeal any state or local law that is 32 equally or more protective of free exercise of religious beliefs or moral 33 convictions; 34 (B) Narrow the meaning or application of any state or 35 local law protecting free exercise of religious beliefs; or 36 HB1615 13 3/13/2023 4:30:07 PM MLD102 (C) Prevent state government from providing, either 1 directly or through an individual or entity not seeking protection under this 2 subchapter, any benefit or service authorized under state law. 3 (c) This subchapter applies to, and in cases of conflict supersedes, 4 each: 5 (1) Statute of the state that impinges upon the free exercise of 6 religious beliefs protected by this subchapter, unless a conflicting statute 7 is expressly made exempt from the application of this subchapter; and 8 (2) Any ordinance, rule, regulation, order, opinion, decision, 9 practice, or other exercise of state government’s authority that impinges 10 upon the free exercise of religious beliefs protected by this subchapter. 11 (d) If any provision of this subchapter or any application of a 12 provision of this subchapter to any particular person or circumstance is held 13 to be invalid under law, the remainder of this subchapter and the application 14 of this subchapter's provisions to any other person or circumstance shall not 15 be affected. 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

Stricken language would be deleted from and underlined language would be added to present law. Act 733 of the Regular Session *MLD102* 03-28-2023 10:40:58 MLD102 State of Arkansas As Engrossed: H3/28/23 1 94th General Assembly A Bill 2 Regular Session, 2023 HOUSE BILL 1615 3 4 By: Representatives Lundstrum, Bentley, C. Cooper, Crawford, Gazaway, Long, Milligan, Richmond, 5 Underwood, Unger, Watson 6 By: Senators G. Stubblefield, A. Clark 7 8 For An Act To Be Entitled 9 AN ACT TO CREATE THE CONSCIENCE PROTECTION ACT; TO 10 AMEND THE RELIGIOUS FREEDOM RESTORATION ACT; AND FOR 11 OTHER PURPOSES. 12 13 14 Subtitle 15 TO CREATE THE CONSCIENCE PROTECTION ACT; 16 AND TO AMEND THE RELIGIOUS FREEDOM 17 RESTORATION ACT. 18 19 20 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 21 22 SECTION 1. DO NOT CODIFY. Title. 23 This act shall be known and may be cited as the “Conscience Protection 24 Act”. 25 26 SECTION 2. Arkansas Code § 16-123-403 is amended to read as follows: 27 16-123-403. Definitions. 28 As used in this subchapter: 29 (1) “Compelling governmental interest” means a governmental 30 interest of the highest order as long-recognized in the history and 31 traditions of this state, that is necessary to advance a vital interest and 32 cannot otherwise be achieved without burdening the exercise of religion; 33 (2) “Demonstrates” means meets the burdens of going forward with the 34 evidence and of persuasion; 35 (2)(3)(A) “Exercise of religion” means religious exercise the 36 As Engrossed: H3/28/23 HB1615 2 03-28-2023 10:40:58 MLD102 practice or observance of religion. 1 (B) “Exercise of religion” includes without limitation an 2 action that is motivated by a sincerely held religious belief, whether or not 3 the exercise is compulsory or central to a larger system of religious belief; 4 (3)(4) “Government” includes a branch, department, agency, 5 instrumentality, political subdivision, official, or other person acting 6 under color of state law or using any instrumentality of the state to enforce 7 a law, regulation, rule, or policy of the government; and 8 (5) “Person” means an individual, association, partnership, 9 corporation, church, religious institution, estate, trust, foundation, or 10 other legal entity; 11 (4)(6) “State law” includes without limitation a law of a 12 political subdivision, an ordinance, rule, regulation, or policy, whether 13 statutory or otherwise, or other action by the state or any political 14 subdivision of the state or by any public official authorized by law in the 15 state; and 16 (7)(A) “Substantially burden” means any action that directly or 17 indirectly constrains, inhibits, curtails, or denies the exercise of religion 18 by any person or compels any action contrary to a person’s exercise of 19 religion. 20 (B) “Substantially burden” includes without limitation 21 withholding benefits, assessing criminal, civil, or administrative penalties 22 or damages, or exclusion from governmental programs or access to governmental 23 facilities. 24 25 SECTION 3. Arkansas Code § 16-123-404 is amended to read as follows: 26 16-123-404. Free exercise of religion protected. 27 (a) A government shall not substantially burden a person's exercise of 28 religion even if the burden results from a rule of general applicability, 29 except that a government may substantially burden a person's exercise of 30 religion only if it demonstrates unless it is demonstrated that application 31 of the burden to the person in this particular instance is: 32 (1) In furtherance of Essential to further a compelling 33 governmental interest; and 34 (2) The least restrictive means of furthering that compelling 35 governmental interest. 36 As Engrossed: H3/28/23 HB1615 3 03-28-2023 10:40:58 MLD102 (b)(1) A person whose religious exercise has been burdened, or will be 1 burdened, in violation of this section may assert that violation or impending 2 violation as a claim or defense in a judicial or administrative proceeding, 3 regardless of whether the government is a party to the proceeding, and obtain 4 appropriate relief against a government, including declaratory relief, 5 injunctive relief, compensatory damages, and reasonable attorneys' fees and 6 costs. 7 (2) Standing to assert a claim or defense under this section is 8 governed by the general rules of standing under statute, the Arkansas Rules 9 of Criminal Procedure, the Arkansas Rules of Civil Procedure, or any court 10 holding from the state's appellate courts. 11 (c) An action under this subchapter may be commenced and relief may be 12 granted without regard to whether the person commencing the action has sought 13 or exhausted all available administrative remedies. 14 15 SECTION 4. Arkansas Code § 16-123-406, concerning interpretation under 16 the Religious Freedom Restoration Act, is amended to add an additional 17 subsection to read as follows: 18 (d) This subchapter shall be construed in favor of a broad protection 19 of free exercise of religious beliefs, to the maximum extent permitted by the 20 Arkansas Constitution and the United States Constitution. 21 22 SECTION 5. Arkansas Code Title 16, Chapter, 123, is amended to add an 23 additional subchapter to read as follows: 24 Subchapter 5. Religious Nondiscrimination. 25 26 16-123-501. Legislative intent. 27 It is the intent of the General Assembly to prohibit government 28 discrimination against religious organizations based upon the religious 29 organizations’ religious identity or conduct. 30 31 16-123-502. Definitions. 32 As used in this subchapter: 33 (1) “Discriminatory action” means any action taken by 34 state government to: 35 (A) Alter in any way the tax treatment of, or cause any 36 As Engrossed: H3/28/23 HB1615 4 03-28-2023 10:40:58 MLD102 tax, penalty, or payment to be assessed against, or deny, delay, revoke, or 1 otherwise make unavailable an exemption from taxation of any person; 2 (B) Disallow, deny, or otherwise make unavailable a 3 deduction for state tax purposes of any charitable contribution made to or by 4 any person; 5 (C) Withhold, reduce, exclude, terminate, materially alter 6 the terms or conditions of, or otherwise make unavailable, including by 7 inserting contractual provisions that contradict a person's sincerely held 8 religious beliefs, or deny any state grant, contract, subcontract, 9 cooperative agreement, guarantee, loan, scholarship, or other similar benefit 10 from or to such person; 11 (D) Withhold, reduce, exclude, terminate, materially alter 12 the terms or conditions of, or otherwise make unavailable or deny any 13 entitlement or benefit under a state benefit program from or to a person; 14 (E) Impose, levy, or assess a monetary fine, fee, penalty, 15 damages award, or injunction upon a person; 16 (F) Withhold, reduce, exclude, terminate, materially alter 17 the terms or conditions of, or otherwise make unavailable or deny any 18 license, certification, accreditation, custody award or agreement, diploma, 19 grade, recognition, or other similar benefit, position, or status from or to 20 any person; or 21 (G) Refuse to hire or promote, force to resign, fire, 22 demote, sanction, discipline, adversely alter the terms or conditions of 23 employment, or retaliate or take other adverse employment action against a 24 person employed or commissioned by state government; 25 (2) “State government” means: 26 (A) The state or a political subdivision of the state; 27 (B) An agency of the state or of a political subdivision 28 of the state, including without limitation a department, bureau, board, 29 commission, council, court, or public institution of higher education; and 30 (C) Any person acting under color of state law or using 31 any government instrumentality to enforce a law, regulation, rule, or policy 32 of government; 33 (3) “Person” means: 34 (A) An individual, in his or her personal capacity 35 regardless of religious affiliation or lack thereof, or in his or her 36 As Engrossed: H3/28/23 HB1615 5 03-28-2023 10:40:58 MLD102 capacity as a member, officer, owner, volunteer, employee, manager, religious 1 leader, clergy, or minister of any religious organization; 2 (B) A religious organization; 3 (C) A sole proprietorship, partnership, trust, closely 4 held corporation, or other closely held entity operating with a sincerely 5 held religious belief, including a belief about biological sex or marriage; 6 or 7 (D) Cooperatives, ventures, or enterprises comprised of 8 two (2) or more individuals or entities described in this subdivision (3) 9 regardless of nonprofit or for-profit status; 10 (4) “Religious organization” means: 11 (A) A house of worship, including without limitation a 12 church, synagogue, shrine, mosque, or temple; 13 (B) A religious group, corporation, association, school or 14 educational institution, ministry, order, society, or similar entity, 15 regardless of whether it is integrated or affiliated with a house of worship; 16 or 17 (C) An officer, owner, employee, manager, religious 18 leader, clergy, or minister of an entity or organization described in this 19 subdivision (4) and 20 (5) “State benefit program” means any program administered, 21 controlled, or funded by the state government, that provides cash, payments, 22 grants, contracts, loans, or in-kind assistance. 23 24 16-123-503. Religious discrimination prohibited. 25 (a) The state government shall not take any discriminatory action 26 against a religious organization on the basis of the religious identity or 27 status of the religious organization, including the religious organization 28 maintaining policies and procedures in accordance with a sincerely held 29 religious belief, or the religious organization engaging in religious conduct 30 protected by the First Amendment to the United States Constitution or the 31 Arkansas Constitution unless it is demonstrated that the action against the 32 religious organization in this particular instance is: 33 (1) Essential to further a compelling governmental interest; and 34 (2) The least restrictive means of furthering that compelling 35 governmental interest. 36 As Engrossed: H3/28/23 HB1615 6 03-28-2023 10:40:58 MLD102 (b) The state government shall consider any person for a contract, 1 grant, or agreement that would otherwise be considered for a contract, grant, 2 or agreement but for a determination against the person wholly or partially 3 on the basis that the person maintains policies and procedures, or acts in 4 accordance with, a sincerely held religious belief unless refusal of 5 consideration of the person in this particular instance is: 6 (1) Essential to further a compelling governmental interest; and 7 (2) The least restrictive means of furthering that compelling 8 governmental interest. 9 10 16-123-504. Remedies. 11 (a) A person may assert a violation of this subchapter as a claim 12 against the state government in any judicial or administrative proceeding or 13 as a defense in any judicial or administrative proceeding without regard to 14 whether the judicial or administrative proceeding is brought by or in the 15 name of the state government, any private person, or any other party. 16 (b) An action under this subchapter may be commenced, and relief may 17 be granted, in a court of the state without regard to whether the person 18 commencing the action has sought or exhausted available administrative 19 remedies. 20 (c)(1) A person who successfully asserts a claim or defense under this 21 subchapter may recover declaratory relief, injunctive relief, reasonable 22 attorneys’ fees and costs, and any other appropriate relief. 23 (2) Only declaratory relief and injunctive relief shall be 24 available against a private person not acting under color of state law upon a 25 successful assertion of a defense under this subchapter. 26 (d) A person may not bring an action to assert a claim under this 27 subchapter later than two (2) years after the date that the person knew or 28 should have known that a discriminatory action was taken against that person. 29 (e) For the provision of equitable relief, including reasonable 30 attorney's fees and costs, sovereign, governmental, and qualified immunities 31 to suit and from liability are waived and abolished to the extent of 32 liability created by this subchapter. 33 34 16-123-505. Rules of construction. 35 (a) This subchapter shall be construed in favor of a broad protection 36 As Engrossed: H3/28/23 HB1615 7 03-28-2023 10:40:58 MLD102 of free exercise of religious beliefs, to the maximum extent permitted by the 1 Arkansas Constitution and the United States Constitution. 2 (b)(1) The protection of free exercise of religious beliefs and moral 3 convictions afforded by this subchapter are in addition to the protections 4 provided under federal law, state law, the Arkansas Constitution, and the 5 United States Constitution. 6 (2) This subchapter does not: 7 (A) Preempt or repeal any state or local law that is 8 equally or more protective of free exercise of religious beliefs or moral 9 convictions; 10 (B) Narrow the meaning or application of any state or 11 local law protecting free exercise of religious beliefs; or 12 (C) Prevent state government from providing, either 13 directly or through an individual or entity not seeking protection under this 14 subchapter, any benefit or service authorized under state law. 15 (c) This subchapter applies to, and in cases of conflict supersedes, 16 each: 17 (1) Statute of the state that impinges upon the free exercise of 18 religious beliefs protected by this subchapter, unless a conflicting statute 19 is expressly made exempt from the application of this subchapter; and 20 (2) Any ordinance, rule, regulation, order, opinion, decision, 21 practice, or other exercise of state government’s authority that impinges 22 upon the free exercise of religious beliefs protected by this subchapter. 23 (d) If any provision of this subchapter or any application of a 24 provision of this subchapter to any particular person or circumstance is held 25 to be invalid under law, the remainder of this subchapter and the application 26 of this subchapter's provisions to any other person or circumstance shall not 27 be affected. 28 29 /s/Lundstrum 30 31 32 APPROVED: 4/12/23 33 34 35 36