Text of AR HB 2232 (2017)

Stricken language would be deleted from and underlined language would be added to present law. *BPG122* 03-05-2017 17:57:25 BPG122 State of Arkansas 1 91st General Assembly A Bill 2 Regular Session, 2017 HOUSE BILL 2232 3 4 By: Representative Ballinger 5 6 For An Act To Be Entitled 7 AN ACT TO CREATE THE GOVERNMENT NONDISCRIMINATION ACT 8 OF 2017; CONCERNING RELIGIOUS LIBERTY; AND FOR OTHER 9 PURPOSES. 10 11 12 Subtitle 13 TO CREATE THE GOVERNMENT 14 NONDISCRIMINATION ACT OF 2017; AND 15 CONCERNING RELIGIOUS LIBERTY. 16 17 18 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 19 20 SECTION 1. DO NOT CODIFY. Legislative findings. 21 The General Assembly finds the following: 22 (1) Leading legal scholars concur that conflicts between same- 23 sex marriage and religious liberty are real and should be addressed through 24 legislation; 25 (2) Arkansas citizens hold a wide range of reasonable views on 26 the issue of same-sex marriage and maintaining the state’s commitment to 27 religious freedom when faced with these good-faith differences of opinion is 28 vital; 29 (3)(A) The United States has a long and honorable history of 30 respecting and accommodating the religious liberty of its people, dating from 31 before the American Revolution to the present. 32 (B) For example, laws have protected the right of Quakers 33 and other pacifists to serve the nation as noncombatants in times of war, the 34 right of Jews and other observers of the Sabbath to dedicate their time to 35 God and family instead of work on the Sabbath, and the right of religious 36 HB2232 2 03-05-2017 17:57:25 BPG122 organizations to provide charitable services to the public consistent with 1 their beliefs by hiring individuals who share the same beliefs; 2 (4)(A) Protecting religious freedom from government intrusion is 3 a government interest of the highest order. 4 (B) Legislation advances this interest by remedying, 5 deterring, and preventing government interference with religious exercise in 6 a way that complements the protections mandated by the state and federal 7 constitutions; 8 (5)(A) Protecting the religious freedom of faith-based charities 9 and educational institutions serves Arkansas's compelling interest in 10 providing essential social services to the poor and educational opportunities 11 to the next generation. 12 (B) This is also consistent with Arkansas's long tradition 13 of cooperating with religious organizations when providing these critical 14 services; 15 (6) Laws and government actions that protect the free exercise 16 of religious beliefs and moral convictions about marriage will encourage 17 private citizens and institutions to demonstrate tolerance for those beliefs 18 and convictions and therefore contribute to a more respectful, diverse, and 19 peaceful society; and 20 (7) In a pluralistic society, in which people of good faith hold 21 more than one view of marriage, it is possible for the government to 22 recognize same-sex marriage without forcing persons with sincerely held 23 religious beliefs or moral convictions to conform. 24 25 SECTION 2. Arkansas Code Title 16, Chapter 123, is amended to add an 26 additional subchapter to read as follows: 27 Subchapter 5 — Government Nondiscrimination Act 28 29 16-123-501. Title. 30 This subchapter may be cited as the "Government Nondiscrimination Act 31 of 2017". 32 33 16-123-502. Definitions. 34 As used in this subchapter: 35 (1)(A) "Person" means any individual or any corporation, 36 HB2232 3 03-05-2017 17:57:25 BPG122 company, sole proprietorship, partnership, society, club, organization, or 1 association. 2 (B) "Person" does not mean a: 3 (i) State employee acting within the scope and duty 4 of his or her employment; or 5 (ii) A hospital, clinic, hospice, nursing home, or 6 other medical or residential custodial facility with respect to: 7 (a) Visitation; 8 (b) Recognition of a designated representative 9 for health care decision making; or 10 (c) Refusal to provide emergency medical 11 treatment necessary to cure an illness or injury; 12 (2) "State" means a: 13 (A) Department, commission, board, agency, or agent of the 14 state; 15 (B) Political subdivision of the state or a department, 16 commission, board, agency, or agent of a political subdivision of the state; 17 and 18 (C) Individual or entity acting under color of state law; 19 and 20 (3) "State benefit program" means: 21 (A) A program administered or funded by the state or by an 22 agent on behalf of the state; or 23 (B) Providing funds, cash, payments, grants, contracts, 24 loans, or in-kind assistance. 25 26 16-123-503. Protection of the free exercise of religious beliefs and 27 moral convictions. 28 (a) Notwithstanding any statute, rule, regulation, or court order to 29 the contrary, the state shall not take any discriminatory action against a 30 person, wholly or partially, on the basis that the person believes, speaks, 31 or acts in accordance with a sincerely held religious belief or moral 32 conviction that: 33 (1) Marriage is or should be recognized as the union of one (1) 34 man and one (1) woman; or 35 (2) The terms "male" and "female", or "man" and "woman", refer 36 HB2232 4 03-05-2017 17:57:25 BPG122 to a person's immutable biological sex as objectively determined by anatomy 1 and genetics by time of birth. 2 (b) As used in subsection (a) of this section, "discriminatory action" 3 means an action taken by the state to: 4 (1)(A) Alter the state tax treatment of, or cause a tax, 5 penalty, or payment to be assessed against, or deny, delay, revoke, or 6 otherwise make unavailable an exemption from taxation of a person described 7 under subsection (a) of this section. 8 (B) To the extent that the state relies on a determination 9 of an agency or commission of the United States Government when deciding the 10 state’s tax treatment of a person, the basis for the United States 11 Government’s determination shall be imputed to the state; 12 (2) Disallow, deny, or otherwise make unavailable a deduction 13 for state tax purposes of any charitable contribution made to or by a person 14 described under subsection (a) of this section; 15 (3) Withhold, reduce, exclude, terminate, materially alter the 16 terms or conditions of, or otherwise make unavailable or deny a state grant, 17 contract, subcontract, cooperative agreement, guarantee, loan, scholarship, 18 license, certification, accreditation, employment, or other similar benefit, 19 position, or status from or to a person described under subsection (a) of 20 this section; 21 (4) Withhold, reduce, exclude, terminate, materially alter the 22 terms or conditions of, or otherwise make unavailable or deny any entitlement 23 or benefit under a state benefit program, including admission to, equal 24 treatment in, or eligibility for a degree from an educational program, from 25 or to a person described under subsection (a) of this section; or 26 (5) Withhold, reduce, exclude, terminate or otherwise make 27 unavailable or deny access or an entitlement to state property, facilities, 28 educational institutions, speech fora, including traditional, limited, and 29 nonpublic fora, or charitable fundraising campaigns from or to a person 30 described under subsection (a) of this section. 31 (c) The state shall consider accredited, licensed, or certified a 32 person that would otherwise be accredited, licensed, or certified for any 33 purposes under state law but for a determination against the person, wholly 34 or partially, on the basis that the person believes, speaks, or acts in 35 accordance with a sincerely held religious belief or moral conviction 36 HB2232 5 03-05-2017 17:57:25 BPG122 described in subsection (a) of this section. 1 2 16-123-504. Judicial relief. 3 (a)(1) A person may assert a violation of this subchapter as a claim 4 or defense in a judicial or administrative proceeding and obtain injunctive 5 relief, declaratory relief, or any other appropriate nonmonetary relief. 6 (2) Standing to assert a claim or defense under this section is 7 governed by the general rules of standing under the laws of the state. 8 (b) Notwithstanding any other provision of law, an action under this 9 section may be commenced and relief may be granted in a court having 10 jurisdiction without regard to whether the person commencing the action has 11 sought or exhausted available administrative remedies. 12 (c) In an action or proceeding to enforce a provision of this 13 subchapter, a prevailing party who establishes a violation of this subchapter 14 is entitled to recover reasonable attorneys’ fees and costs. 15 (d) This section does not deny, impair, or otherwise affect a right or 16 authority of the Attorney General or the state, acting under any law other 17 than this section, to institute or intervene in any proceeding. 18 19 16-123-505. Rules of construction. 20 (a) The protection of free exercise of religious beliefs and moral 21 convictions afforded under this subchapter are in addition to the protections 22 provided under the Arkansas Constitution, the United States Constitution, 23 federal law, or state law. 24 (b) This subchapter does not: 25 (1) Preempt or repeal a state or local law that is equally or 26 more protective of free exercise of religious beliefs or moral convictions; 27 (2) Narrow the meaning or application of any state or local law 28 protecting free exercise of religious beliefs or moral convictions; or 29 (3) Prevent the state from providing, either directly or through 30 an individual or entity not seeking protection under this subchapter, a 31 benefit or service authorized under state law. 32 33 34 35 36