Text of AR HJR 1024 (2021)

Stricken language would be deleted from and underlined language would be added to the Arkansas Constitution. *MBM070* 2/10/2021 4:15:33 PM MBM070 State of Arkansas 1 93rd General Assembly 2 Regular Session, 2021 HJR 1024 3 4 By: Representative Gazaway 5 By: Senator Rapert 6 7 HOUSE JOINT RESOLUTION 8 AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO CREATE 9 THE "ARKANSAS RELIGIOUS FREEDOM AMENDMENT"; AND TO 10 PROVIDE THAT GOVERNMENT MAY BURDEN A PERSON'S FREEDOM 11 OF RELIGION ONLY IF THE GOVERNMENT DEMONSTRATES THAT 12 APPLICATION OF THE BURDEN TO THE PERSON IS IN 13 FURTHERANCE OF A COMPELLING GOVERNMENT INTEREST AND 14 IS THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT 15 COMPELLING GOVERNMENT INTEREST. 16 17 18 Subtitle 19 AN AMENDMENT TO THE ARKANSAS CONSTITUTION 20 TO CREATE THE "ARKANSAS RELIGIOUS FREEDOM 21 AMENDMENT". 22 23 24 BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE NINETY-THIRD GENERAL 25 ASSEMBLY OF THE STATE OF ARKANSAS, AND BY THE SENATE, A MAJORITY OF ALL 26 MEMBERS ELECTED TO EACH HOUSE AGREEING THERETO: 27 28 That the following is proposed as an amendment to the Constitution of 29 the State of Arkansas, and upon being submitted to the electors of the state 30 for approval or rejection at the next general election for Representatives 31 and Senators, if a majority of the electors voting thereon at the election 32 adopt the amendment, the amendment shall become a part of the Constitution of 33 the State of Arkansas, to wit: 34 35 SECTION 1. This amendment shall be known and may be cited as the 36 HJR1024 2 2/10/2021 4:15:33 PM MBM070 "Arkansas Religious Freedom Amendment". 1 2 SECTION 2. (a) The General Assembly finds: 3 (1) The framers of the United States Constitution, recognizing 4 free exercise of religion as an unalienable right, secured its protection in 5 the First Amendment to the United States Constitution; 6 (2) The framers of the Arkansas Constitution of 1874, also 7 recognizing the free exercise of religion as an unalienable right, secured 8 the protection of religious freedom in Arkansas Constitution, Article 2, § 9 24; 10 (3) Federal and state laws "neutral" toward religion may burden 11 religious exercise as surely as laws intended to interfere with religious 12 exercise; 13 (4) Governments should not burden religious exercise without 14 compelling justification; 15 (5) In Employment Division v. Smith, 494 U.S. 872 (1990), the 16 United States Supreme Court virtually eliminated the requirement that the 17 government justify burdens on religious exercise imposed by laws neutral 18 toward religion; 19 (6) The compelling interest test as set forth in prior court 20 rulings is a workable test for striking sensible balances between religious 21 liberty and competing government interests in areas ranging from public 22 education (pedagogical interests and religious rights, including recognizing 23 regulations necessary to alleviate interference with the educational process 24 versus rights of religious freedom), national defense (conscription and 25 conscientious objection, including the need to raise an army versus rights to 26 object to individual participation), and other areas of important mutual 27 concern; and 28 (7) The United States Congress passed the Religious Freedom 29 Restoration Act, 42 U.S.C. § 2000bb, to establish the compelling interest 30 test set forth in prior federal court rulings, but in City of Boerne v. 31 Flores, 117 S.Ct. 2157 (1997), the United States Supreme Court held the act 32 unconstitutional, stating that the right to regulate was retained by the 33 states. 34 (b) The purpose of this amendment is to: 35 (1) Guarantee that the freedom of religion is not burdened by 36 HJR1024 3 2/10/2021 4:15:33 PM MBM070 state and local law; and 1 (2) Provide a claim or defense to persons whose religious 2 freedom is burdened by government. 3 4 SECTION 3. As used in this amendment: 5 (1) "Demonstrates" means meeting the burden of going forward 6 with the evidence and of persuasion; 7 (2) "Freedom of religion" means the free exercise of religion 8 under Arkansas Constitution, Article 2, § 24; 9 (3) "Government" means: 10 (A) A branch, department, agency, or instrumentality of 11 the State of Arkansas; 12 (B) A political subdivision of the state, including 13 without limitation a county, municipality, township, or other unit of local 14 government; 15 (C) An official acting on behalf of government; and 16 (D) A person acting under the color of law of the State of 17 Arkansas; and 18 (4) "Rule" means a statement of Arkansas law, including without 19 limitation a: 20 (A) Statute; 21 (B) Rule; 22 (C) Regulation; 23 (D) Ordinance; 24 (E) Administrative provision; 25 (F) Administrative ruling; 26 (G) Guideline; or 27 (H) Requirement. 28 29 SECTION 4. (a) Except as provided in subsection (b) of this section, 30 government shall not burden a person's freedom of religion even if the burden 31 results from a rule of general applicability. 32 (b) Government may burden a person's freedom of religion only if the 33 government demonstrates that application of the burden to the person: 34 (1) Is in furtherance of a compelling government interest; and 35 (2) Is the least restrictive means of furthering that compelling 36 HJR1024 4 2/10/2021 4:15:33 PM MBM070 government interest. 1 (c) A person whose religious freedom has been burdened in violation of 2 this section may assert that violation as a claim or defense in a judicial, 3 administrative, or other appropriate proceeding and obtain appropriate relief 4 against a government. 5 6 SECTION 5. (a) This amendment applies to each rule of government and 7 its implementation, regardless of whether the rule: 8 (1) Is statutory; or 9 (2) Was adopted prior to or after the effective date of this 10 amendment. 11 (b) This amendment shall not be construed to: 12 (1) Authorize a government to burden a religious belief; or 13 (2) Affect, interpret, or in any way address: 14 (A) The portions of the United States Constitution, First 15 Amendment, permitting the free exercise of religion or prohibiting laws 16 respecting the establishment of religion; or 17 (B) Article 2, § 24 of this constitution regarding 18 religious liberty. 19 20 SECTION 6. (a) This amendment shall be liberally construed to 21 effectuate its remedial and deterrent purposes. 22 (b) If any provision of this amendment or its application to any 23 particular person or circumstance is held invalid, that provision or its 24 application is severable and does not affect the validity of other provisions 25 or applications of this amendment. 26 27 SECTION 7. EFFECTIVE DATE. This amendment shall be effective on and 28 after November 9, 2023. 29 30 SECTION 8. BALLOT TITLE AND POPULAR NAME. When this proposed 31 amendment is submitted to the electors of this state on the general election 32 ballot: 33 (1) The title of this joint resolution shall be the ballot 34 title; and 35 (2) The popular name shall be "A Constitutional Amendment 36 HJR1024 5 2/10/2021 4:15:33 PM MBM070 Creating the 'Arkansas Religious Freedom Amendment' And Providing That 1 Government May Burden a Person's Freedom Of Religion Only if the Government 2 Demonstrates that Application of the Burden to the Person is in Furtherance 3 of a Compelling Government Interest and is the Least Restrictive Means of 4 Furthering that Compelling Government Interest". 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36