Text of AR SJR 14 (2021)
An Amendment To The Arkansas Constitution To Create The "arkansas Religious Freedom Amendment".
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As introduced
8,631 characters
Stricken language would be deleted from and underlined language would be added to the Arkansas
Constitution.
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State of Arkansas
1
93rd General Assembly
2
Regular Session, 2021
SJR 14
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By: Senator Rapert
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By: Representative Gazaway
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SENATE JOINT RESOLUTION
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AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO CREATE
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THE "ARKANSAS RELIGIOUS FREEDOM AMENDMENT"; AND TO
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PROVIDE THAT GOVERNMENT MAY BURDEN A PERSON'S FREEDOM
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OF RELIGION ONLY IF THE GOVERNMENT DEMONSTRATES THAT
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APPLICATION OF THE BURDEN TO THE PERSON IS IN
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FURTHERANCE OF A COMPELLING GOVERNMENT INTEREST AND
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IS THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT
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COMPELLING GOVERNMENT INTEREST.
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Subtitle
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AN AMENDMENT TO THE ARKANSAS CONSTITUTION
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TO CREATE THE "ARKANSAS RELIGIOUS FREEDOM
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AMENDMENT".
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BE IT RESOLVED BY THE SENATE OF THE NINETY-THIRD GENERAL ASSEMBLY OF THE
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STATE OF ARKANSAS, AND BY THE HOUSE OF REPRESENTATIVES, A MAJORITY OF ALL
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MEMBERS ELECTED TO EACH HOUSE AGREEING THERETO:
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That the following is proposed as an amendment to the Constitution of
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the State of Arkansas, and upon being submitted to the electors of the state
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for approval or rejection at the next general election for Representatives
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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
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the State of Arkansas, to wit:
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SECTION 1. This amendment shall be known and may be cited as the
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"Arkansas Religious Freedom Amendment".
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SECTION 2. (a) The General Assembly finds:
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(1) The framers of the United States Constitution, recognizing
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free exercise of religion as an unalienable right, secured its protection in
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the First Amendment to the United States Constitution;
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(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, §
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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;
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(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;
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(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
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(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.
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(b) The purpose of this amendment is to:
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(1) Guarantee that the freedom of religion is not burdened by
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state and local law; and
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(2) Provide a claim or defense to persons whose religious
2
freedom is burdened by government.
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SECTION 3. As used in this amendment:
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(1) "Demonstrates" means meeting the burden of going forward
6
with the evidence and of persuasion;
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(2) "Freedom of religion" means the free exercise of religion
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under Arkansas Constitution, Article 2, § 24;
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(3) "Government" means:
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(A) A branch, department, agency, or instrumentality of
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the State of Arkansas;
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(B) A political subdivision of the state, including
13
without limitation a county, municipality, township, or other unit of local
14
government;
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(C) An official acting on behalf of government; and
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(D) A person acting under the color of law of the State of
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Arkansas; and
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(4) "Rule" means a statement of Arkansas law, including without
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limitation a:
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(A) Statute;
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(B) Rule;
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(C) Regulation;
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(D) Ordinance;
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(E) Administrative provision;
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(F) Administrative ruling;
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(G) Guideline; or
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(H) Requirement.
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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.
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(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
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government interest.
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(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.
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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.
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(b) This amendment shall not be construed to:
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(1) Authorize a government to burden a religious belief; or
13
(2) Affect, interpret, or in any way address:
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(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
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(B) Article 2, § 24 of this constitution regarding
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religious liberty.
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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.
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SECTION 7. EFFECTIVE DATE. This amendment shall be effective on and
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after November 9, 2023.
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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:
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(1) The title of this joint resolution shall be the ballot
34
title; and
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(2) The popular name shall be "A Constitutional Amendment
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Creating the 'Arkansas Religious Freedom Amendment' And Providing That
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Government May Burden a Person's Freedom Of Religion Only if the Government
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Demonstrates that Application of the Burden to the Person is in Furtherance
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of a Compelling Government Interest and is the Least Restrictive Means of
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Furthering that Compelling Government Interest".
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As enrolled or final
8,530 characters
Stricken language would be deleted from and underlined language would be added to the Arkansas
Constitution.
*MBM089*
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State of Arkansas
As Engrossed: S3/23/21 S4/22/21
1
93rd General Assembly
2
Regular Session, 2021
SJR 14
3
4
By: Senator Rapert
5
By: Representative Gazaway
6
7
SENATE JOINT RESOLUTION
8
AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO CREATE
9
THE "ARKANSAS RELIGIOUS FREEDOM AMENDMENT"; AND TO
10
PROVIDE THAT GOVERNMENT MAY NEVER BURDEN A PERSON'S
11
FREEDOM OF RELIGION EXCEPT IN THE RARE CIRCUMSTANCE
12
THAT THE GOVERNMENT DEMONSTRATES THAT APPLICATION OF
13
THE BURDEN TO THE PERSON IS IN FURTHERANCE OF A
14
COMPELLING GOVERNMENT INTEREST AND IS THE LEAST
15
RESTRICTIVE MEANS OF FURTHERING THAT COMPELLING
16
GOVERNMENT INTEREST.
17
18
19
Subtitle
20
AN AMENDMENT TO THE ARKANSAS CONSTITUTION
21
TO CREATE THE "ARKANSAS RELIGIOUS FREEDOM
22
AMENDMENT".
23
24
25
BE IT RESOLVED BY THE SENATE OF THE NINETY-THIRD GENERAL ASSEMBLY OF THE
26
STATE OF ARKANSAS, AND BY THE HOUSE OF REPRESENTATIVES, A MAJORITY OF ALL
27
MEMBERS ELECTED TO EACH HOUSE AGREEING THERETO:
28
29
That the following is proposed as an amendment to the Constitution of
30
the State of Arkansas, and upon being submitted to the electors of the state
31
for approval or rejection at the next general election for Representatives
32
and Senators, if a majority of the electors voting thereon at the election
33
adopt the amendment, the amendment shall become a part of the Constitution of
34
the State of Arkansas, to wit:
35
36
As Engrossed: S3/23/21 S4/22/21
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SECTION 1. This amendment shall be known and may be cited as the
1
"Arkansas Religious Freedom Amendment".
2
3
SECTION 2. (a) The General Assembly finds:
4
(1) The framers of the United States Constitution, recognizing
5
free exercise of religion as an unalienable right, secured its protection in
6
the First Amendment to the United States Constitution;
7
(2) The framers of the Arkansas Constitution of 1874, also
8
recognizing the free exercise of religion as an unalienable right, secured
9
the protection of religious freedom in Arkansas Constitution, Article 2, §
10
24;
11
(3) Federal and state laws "neutral" toward religion may burden
12
religious exercise as surely as laws intended to interfere with religious
13
exercise;
14
(4) Governments should not burden religious exercise without
15
compelling justification;
16
(5) In Employment Division v. Smith, 494 U.S. 872 (1990), the
17
United States Supreme Court virtually eliminated the requirement that the
18
government justify burdens on religious exercise imposed by laws neutral
19
toward religion;
20
(6) The compelling interest test as set forth in prior court
21
rulings is a workable test for striking sensible balances between religious
22
liberty and competing government interests in areas ranging from public
23
education (pedagogical interests and religious rights, including recognizing
24
regulations necessary to alleviate interference with the educational process
25
versus rights of religious freedom), national defense (conscription and
26
conscientious objection, including the need to raise an army versus rights to
27
object to individual participation), and other areas of important mutual
28
concern; and
29
(7) The United States Congress passed the Religious Freedom
30
Restoration Act, 42 U.S.C. § 2000bb, to establish the compelling interest
31
test set forth in prior federal court rulings, but in City of Boerne v.
32
Flores, 117 S.Ct. 2157 (1997), the United States Supreme Court held the act
33
unconstitutional, stating that the right to regulate was retained by the
34
states.
35
(b) The purpose of this amendment is to:
36
As Engrossed: S3/23/21 S4/22/21
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(1) Guarantee that the freedom of religion is not burdened by
1
state and local law; and
2
(2) Provide a claim or defense to persons whose religious
3
freedom is burdened by government.
4
5
SECTION 3. As used in this amendment:
6
(1) "Demonstrates" means meeting the burden of going forward
7
with the evidence and of persuasion;
8
(2) "Freedom of religion" means the free exercise of religion
9
under Arkansas Constitution, Article 2, § 24;
10
(3) "Government" means:
11
(A) A branch, department, agency, or instrumentality of
12
the State of Arkansas;
13
(B) A political subdivision of the state, including
14
without limitation a county, municipality, township, or other unit of local
15
government;
16
(C) An official acting on behalf of government; and
17
(D) A person acting under the color of law of the State of
18
Arkansas; and
19
(4) "Rule" means a statement of Arkansas law, including without
20
limitation a:
21
(A) Statute;
22
(B) Rule;
23
(C) Regulation;
24
(D) Ordinance;
25
(E) Administrative provision;
26
(F) Administrative ruling;
27
(G) Guideline; or
28
(H) Requirement.
29
30
SECTION 4. (a) Except as provided in subsection (b) of this section,
31
government shall not burden a person's freedom of religion even if the burden
32
results from a rule of general applicability.
33
(b) Government may burden a person's freedom of religion only if the
34
government demonstrates that application of the burden to the person:
35
(1) Is in furtherance of a compelling government interest; and
36
As Engrossed: S3/23/21 S4/22/21
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(2) Is the least restrictive means of furthering that compelling
1
government interest.
2
(c) A person whose religious freedom has been burdened in violation of
3
this section may assert that violation as a claim or defense in a judicial,
4
administrative, or other appropriate proceeding and obtain appropriate relief
5
against a government.
6
7
SECTION 5. (a) This amendment applies to each rule of government and
8
its implementation, regardless of whether the rule:
9
(1) Is statutory; or
10
(2) Was adopted prior to or after the effective date of this
11
amendment.
12
(b) This amendment shall not be construed to:
13
(1) Authorize a government to burden a religious belief; or
14
(2) Affect, interpret, or in any way address:
15
(A) The portions of the United States Constitution, First
16
Amendment, permitting the free exercise of religion or prohibiting laws
17
respecting the establishment of religion; or
18
(B) Article 2, § 24 of this constitution regarding
19
religious liberty.
20
21
SECTION 6. (a) This amendment shall be liberally construed to
22
effectuate its remedial and deterrent purposes.
23
(b) If any provision of this amendment or its application to any
24
particular person or circumstance is held invalid, that provision or its
25
application is severable and does not affect the validity of other provisions
26
or applications of this amendment.
27
28
SECTION 7. EFFECTIVE DATE. This amendment shall be effective on and
29
after November 9, 2022.
30
31
SECTION 8. BALLOT TITLE AND POPULAR NAME. When this proposed
32
amendment is submitted to the electors of this state on the general election
33
ballot:
34
(1) The title of this joint resolution shall be the ballot
35
title; and
36
As Engrossed: S3/23/21 S4/22/21
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(2) The popular name shall be "A Constitutional Amendment to
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Create the "Arkansas Religious Freedom Amendment".
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