Text of CO SB 241 (2018)

Second Regular Session Seventy-first General Assembly STATE OF COLORADO INTRODUCED LLS NO. 18-1192.01 Esther van Mourik x4215 SENATE BILL 18-241 Senate Committees House Committees State, Veterans, & Military Affairs A BILL FOR AN ACT CONCERNING THE ESTABLISHMENT OF THE "COLORADO CHILDREN 101 FIRST ACT" IN COLORADO. 102 Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://leg.colorado.gov.) The bill establishes the "Colorado Children First Act" in the state. Be it enacted by the General Assembly of the State of Colorado: 1 SECTION 1. In Colorado Revised Statutes, add part 10 to article 2 SENATE SPONSORSHIP Lundberg, HOUSE SPONSORSHIP Humphrey, Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment. Capital letters or bold & italic numbers indicate new material to be added to existing statute. Dashes through the words indicate deletions from existing statute. 34 of title 24 as follows: 1 PART 10 2 COLORADO CHILDREN FIRST ACT 3 24-34-1001. Short title. THE SHORT TITLE OF THIS PART 10 IS THE 4 "COLORADO CHILDREN FIRST ACT". 5 24-34-1002. Legislative declaration. (1) THE GENERAL 6 ASSEMBLY HEREBY FINDS AND DECLARES THAT: 7 (a) LEADING LEGAL SCHOLARS CONCUR THAT CONFLICTS BETWEEN 8 SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY ARE REAL AND SHOULD BE 9 ADDRESSED THROUGH LEGISLATION; 10 (b) AFTER THE SUPREME COURT OF THE UNITED STATES 11 DECLARED THE LEGALIZATION OF SAME-SEX MARRIAGE, RELIGIOUS 12 ADOPTION AND FOSTER CARE AGENCIES IN MASSACHUSETTS, ILLINOIS, 13 AND THE DISTRICT OF COLUMBIA WERE FORCED TO CLOSE BECAUSE OF 14 THEIR SINCERELY HELD RELIGIOUS BELIEFS ABOUT MARRIAGE. SIMILARLY, 15 PARENTS IN OHIO LOST CUSTODY OF THEIR CHILD AFTER CONCLUDING 16 GENDER TRANSITION TREATMENTS WERE NOT IN THEIR CHILD'S BEST 17 INTEREST. 18 (c) CITIZENS OF THE STATE HOLD A WIDE RANGE OF VIEWS ON THE 19 ISSUE OF SAME-SEX MARRIAGE, AND MAINTAINING THE STATE'S 20 COMMITMENT TO RELIGIOUS FREEDOM AND FREEDOM OF CONSCIENCE 21 WHEN FACED WITH THESE GOOD-FAITH DIFFERENCES OF OPINION IS VITAL; 22 (d) OUR NATION HAS A LONG AND HONORABLE HISTORY OF 23 RESPECTING AND ACCOMMODATING THE RELIGIOUS FREEDOM AND 24 FREEDOM OF CONSCIENCE RIGHTS OF ITS PEOPLE, DATING FROM BEFORE 25 THE AMERICAN REVOLUTION TO THE PRESENT. FOR EXAMPLE, LAWS HAVE 26 PROTECTED THE RIGHT OF QUAKERS AND OTHER PACIFISTS TO SERVE THE 27 SB18-241 -2- NATION AS NONCOMBATANTS IN TIMES OF WAR, THE RIGHT OF JEWS AND 1 OTHER SABBATH OBSERVERS TO DEDICATE THEIR TIME TO GOD AND 2 FAMILY INSTEAD OF WORK ON THEIR SABBATH, AND THE RIGHT OF 3 RELIGIOUS ORGANIZATIONS TO PROVIDE CHARITABLE SERVICES TO THE 4 PUBLIC CONSISTENT WITH THEIR BELIEFS BY HIRING INDIVIDUALS WHO 5 SHARE THE SAME BELIEFS. RELIGIOUS FREEDOM RIGHTS AND THE RIGHT TO 6 CONSCIENCE HAVE, FOR DECADES, BEEN ESTABLISHED AS A 7 NONCONTROVERSIAL FOUNDATION OF AMERICAN SOCIETY. THE UNITED 8 STATES DOES NOT USE DISAGREEMENTS ABOUT RELIGION OR CONSCIENCE 9 AS AN EXCUSE TO BANISH RELIGIOUS OR CONSCIENTIOUS ACTIVITY FROM 10 THE VIEW OF THOSE IT MIGHT OFFEND. 11 (e) PROTECTING RELIGIOUS FREEDOM AND FREEDOM OF 12 CONSCIENCE FROM GOVERNMENT INTRUSION IS A STATE INTEREST OF THE 13 HIGHEST ORDER. LEGISLATION ADVANCES THIS INTEREST BY REMEDYING, 14 DETERRING, AND PREVENTING GOVERNMENT INTERFERENCE WITH 15 RELIGIOUS EXERCISE IN A WAY THAT COMPLEMENTS THE PROTECTIONS 16 MANDATED BY THE STATE AND FEDERAL CONSTITUTIONS. 17 24-34-1003. Definitions. AS USED IN THIS PART 10, UNLESS THE 18 CONTEXT OTHERWISE REQUIRES: 19 (1) "ADOPTION OR FOSTER CARE" OR "ADOPTION OR FOSTER CARE 20 SERVICE" MEANS SOCIAL SERVICES PROVIDED TO OR ON BEHALF OF 21 CHILDREN, INCLUDING: 22 (a) ASSISTING ABUSED OR NEGLECTED CHILDREN; 23 (b) TEACHING CHILDREN AND PARENTS OCCUPATIONAL, 24 HOMEMAKING, AND OTHER DOMESTIC SKILLS; 25 (c) PROMOTING FOSTER PARENTING; 26 (d) PROVIDING FOSTER HOMES, RESIDENTIAL CARE, GROUP HOMES, 27 SB18-241 -3- OR TEMPORARY GROUP SHELTERS FOR CHILDREN; 1 (e) RECRUITING FOSTER PARENTS; 2 (f) PLACING CHILDREN IN FOSTER HOMES; 3 (g) LICENSING FOSTER HOMES; 4 (h) PROMOTING ADOPTION OR RECRUITING ADOPTIVE PARENTS; 5 (i) ASSISTING ADOPTIONS OR SUPPORTING ADOPTIVE FAMILIES; 6 (j) PERFORMING OR ASSISTING HOME STUDIES; 7 (k) ASSISTING KINSHIP GUARDIANSHIPS OR KINSHIP CAREGIVERS; 8 (l) PROVIDING FAMILY PRESERVATION SERVICES; 9 (m) PROVIDING FAMILY SUPPORT SERVICES; AND 10 (n) PROVIDING TEMPORARY FAMILY REUNIFICATION SERVICES. 11 (2) "DISCRIMINATORY ACTION" MEANS AND INCLUDES ANY ACTION 12 TAKEN BY THE STATE GOVERNMENT TO: 13 (a) ALTER IN ANY WAY THE TAX TREATMENT OF, OR CAUSE ANY 14 TAX, PENALTY, OR PAYMENT TO BE ASSESSED AGAINST, OR DENY, DELAY, 15 REVOKE, OR OTHERWISE MAKE UNAVAILABLE AN EXEMPTION FROM 16 TAXATION OF ANY PERSON REFERRED TO IN SECTION 24-34-1004; 17 (b) DISALLOW, DENY, OR OTHERWISE MAKE UNAVAILABLE A 18 DEDUCTION FOR STATE TAX PURPOSES OF ANY CHARITABLE CONTRIBUTION 19 MADE TO OR BY ANY PERSON REFERRED TO IN SECTION 24-34-1004; 20 (c) WITHHOLD, REDUCE, EXCLUDE, TERMINATE, MATERIALLY 21 ALTER THE TERMS OR CONDITIONS OF, OR OTHERWISE MAKE UNAVAILABLE 22 OR DENY ANY STATE GRANT, CONTRACT, SUBCONTRACT, COOPERATIVE 23 AGREEMENT, GUARANTEE, LOAN, SCHOLARSHIP, OR OTHER SIMILAR 24 BENEFIT FROM OR TO ANY PERSON REFERRED TO IN SECTION 24-34-1004; 25 (d) WITHHOLD, REDUCE, EXCLUDE, TERMINATE, MATERIALLY 26 ALTER THE TERMS OR CONDITIONS OF, OR OTHERWISE MAKE UNAVAILABLE 27 SB18-241 -4- OR DENY ANY ENTITLEMENT OR BENEFIT UNDER A STATE BENEFIT 1 PROGRAM FROM OR TO ANY PERSON REFERRED TO IN SECTION 24-34-1004; 2 (e) IMPOSE, LEVY, OR ASSESS A MONETARY FINE, FEE, PENALTY, 3 DAMAGES AWARD, OR INJUNCTION ON ANY PERSON REFERRED TO IN 4 SECTION 24-34-1004; 5 (f) WITHHOLD, REDUCE, EXCLUDE, TERMINATE, MATERIALLY 6 ALTER THE TERMS OR CONDITIONS OF, OR OTHERWISE MAKE UNAVAILABLE 7 OR DENY ANY LICENSE, CERTIFICATION, ACCREDITATION, CUSTODY AWARD 8 OR AGREEMENT, DIPLOMA, GRADE, RECOGNITION, OR OTHER SIMILAR 9 BENEFIT, POSITION, OR STATUS FROM OR TO ANY PERSON REFERRED TO IN 10 SECTION 24-34-1004; OR 11 (g) REFUSE TO HIRE OR PROMOTE, FORCE TO RESIGN, FIRE, 12 DEMOTE, SANCTION, DISCIPLINE, MATERIALLY ALTER THE TERMS OR 13 CONDITIONS OF EMPLOYMENT, OR RETALIATE OR TAKE OTHER ADVERSE 14 EMPLOYMENT ACTION AGAINST ANY PERSON REFERRED TO IN SECTION 15 24-34-1004 WHO IS EMPLOYED OR COMMISSIONED BY THE STATE 16 GOVERNMENT. 17 (3) "PERSON" MEANS: 18 (a) A NATURAL PERSON, IN HIS OR HER INDIVIDUAL CAPACITY, 19 REGARDLESS OF RELIGIOUS AFFILIATION OR LACK THEREOF, OR IN HIS OR 20 HER CAPACITY AS A MEMBER, OFFICER, OWNER, VOLUNTEER, EMPLOYEE, 21 MANAGER, RELIGIOUS LEADER, CLERGY, OR MINISTER OF ANY ENTITY 22 DESCRIBED IN THIS PART 10; 23 (b) A RELIGIOUS ORGANIZATION; 24 (c) A SOLE PROPRIETORSHIP, PARTNERSHIP, TRUST, CLOSELY HELD 25 CORPORATION, OR OTHER CLOSELY HELD ENTITY; OR 26 (d) COOPERATIVES, VENTURES, OR ENTERPRISES COMPRISED OF 27 SB18-241 -5- TWO OR MORE INDIVIDUALS OR ENTITIES DESCRIBED IN THIS SUBSECTION 1 (3) REGARDLESS OF NONPROFIT OR FOR-PROFIT STATUS. 2 (4) "RELIGIOUS ORGANIZATION" MEANS: 3 (a) A HOUSE OF WORSHIP, INCLUDING BUT NOT LIMITED TO 4 CHURCHES, SYNAGOGUES, SHRINES, MOSQUES, AND TEMPLES; 5 (b) A RELIGIOUS GROUP, CORPORATION, ASSOCIATION, SCHOOL OR 6 EDUCATIONAL INSTITUTION, MINISTRY, ORDER, SOCIETY, OR SIMILAR 7 ENTITY, REGARDLESS OF WHETHER IT IS INTEGRATED OR AFFILIATED WITH 8 A CHURCH OR OTHER HOUSE OF WORSHIP; AND 9 (c) AN OFFICER, OWNER, EMPLOYEE, MANAGER, RELIGIOUS 10 LEADER, CLERGY, OR MINISTER OF AN ENTITY OR ORGANIZATION 11 DESCRIBED IN THIS SUBSECTION (4). 12 (5) "STATE BENEFIT PROGRAM" MEANS ANY PROGRAM 13 ADMINISTERED OR FUNDED BY THE STATE, OR BY ANY AGENT ON BEHALF 14 OF THE STATE, PROVIDING CASH, PAYMENTS, GRANTS, CONTRACTS, LOANS, 15 OR IN-KIND ASSISTANCE. 16 (6) "STATE GOVERNMENT" MEANS: 17 (a) THE STATE OR A POLITICAL SUBDIVISION OF THE STATE; 18 (b) ANY AGENCY OF THE STATE OR OF A POLITICAL SUBDIVISION OF 19 THE STATE, INCLUDING A DEPARTMENT, BUREAU, BOARD, COMMISSION, 20 COUNCIL, COURT, OR PUBLIC INSTITUTION OF HIGHER EDUCATION; 21 (c) ANY PERSON ACTING UNDER COLOR OF STATE LAW; AND 22 (d) ANY PRIVATE PERSON SUING UNDER OR ATTEMPTING TO 23 ENFORCE A LAW, RULE, OR REGULATION ADOPTED BY THE STATE OR A 24 POLITICAL SUBDIVISION OF THE STATE. 25 24-34-1004. Protections for adoption and foster care 26 providers. (1) THE STATE GOVERNMENT SHALL NOT TAKE ANY 27 SB18-241 -6- DISCRIMINATORY ACTION AGAINST A PERSON THAT ADVERTISES, 1 PROVIDES, OR FACILITATES ADOPTION OR FOSTER CARE, WHOLLY OR 2 PARTLY ON THE BASIS THAT SUCH PERSON HAS PROVIDED OR DECLINED TO 3 PROVIDE ANY ADOPTION OR FOSTER CARE SERVICE, OR RELATED SERVICE, 4 BASED UPON OR IN A MANNER CONSISTENT WITH A SINCERELY HELD 5 RELIGIOUS BELIEF OR MORAL CONVICTION. 6 (2) THE STATE GOVERNMENT SHALL NOT TAKE ANY 7 DISCRIMINATORY ACTION AGAINST A PERSON WHO THE STATE GRANTS 8 CUSTODY OF A FOSTER OR ADOPTIVE CHILD, OR WHO SEEKS FROM THE 9 STATE CUSTODY OF A FOSTER OR ADOPTIVE CHILD, WHOLLY OR PARTIALLY 10 ON THE BASIS THAT THE PERSON GUIDES, INSTRUCTS, OR RAISES A CHILD, 11 OR INTENDS TO GUIDE, INSTRUCT, OR RAISE A CHILD, BASED UPON OR IN A 12 MANNER CONSISTENT WITH A SINCERELY HELD RELIGIOUS BELIEF OR 13 MORAL CONVICTION, PROVIDED THAT THE STATE GOVERNMENT MAY 14 PROTECT A MINOR FROM CONDITIONS OR ACTIONS THAT IMMINENTLY AND 15 SERIOUSLY ENDANGER THE MINOR'S PHYSICAL HEALTH. 16 (3) THE STATE GOVERNMENT SHALL CONSIDER ACCREDITED, 17 LICENSED, OR CERTIFIED ANY PERSON THAT ADVERTISES, PROVIDES, OR 18 FACILITATES ADOPTION OR FOSTER CARE THAT WOULD OTHERWISE BE 19 ACCREDITED, LICENSED, OR CERTIFIED, RESPECTIVELY, UNDER STATE LAW 20 BUT FOR A DETERMINATION AGAINST SUCH PERSON WHOLLY OR PARTIALLY 21 ON THE BASIS THAT THE PERSON BELIEVES, SPEAKS, OR ACTS IN 22 ACCORDANCE WITH A SINCERELY HELD RELIGIOUS BELIEF OR MORAL 23 CONVICTION. 24 24-34-1005. Claim or defense against state action. (1) Cause 25 of action and defense. A PERSON MAY ASSERT A VIOLATION OF THIS PART 26 10 AS A CLAIM AGAINST THE STATE GOVERNMENT IN ANY JUDICIAL OR 27 SB18-241 -7- ADMINISTRATIVE PROCEEDING OR AS A DEFENSE IN ANY JUDICIAL OR 1 ADMINISTRATIVE PROCEEDING WITHOUT REGARD TO WHETHER THE 2 PROCEEDING IS BROUGHT BY OR IN THE NAME OF THE STATE GOVERNMENT, 3 ANY PRIVATE PERSON, OR ANY OTHER PARTY. 4 (2) Administrative remedies not required. NOTWITHSTANDING 5 ANY OTHER PROVISION OF LAW TO THE CONTRARY, AN ACTION UNDER THIS 6 PART 10 MAY BE COMMENCED, AND RELIEF MAY BE GRANTED, IN A COURT 7 OF THE STATE WITHOUT REGARD TO WHETHER THE PERSON COMMENCING 8 THE ACTION HAS SOUGHT OR EXHAUSTED AVAILABLE ADMINISTRATIVE 9 REMEDIES. 10 24-34-1006. Remedies. (1) EXCEPT AS PROVIDED IN SUBSECTION 11 (2) OF THIS SECTION, ANY PERSON WHO SUCCESSFULLY ASSERTS A CLAIM 12 OR DEFENSE UNDER THIS PART 10 MAY RECOVER: 13 (a) DECLARATORY RELIEF; 14 (b) INJUNCTIVE RELIEF TO PREVENT OR REMEDY A VIOLATION OF 15 THIS PART 10 OR THE EFFECTS OF SUCH A VIOLATION; 16 (c) COMPENSATORY DAMAGES FOR PECUNIARY AND 17 NONPECUNIARY LOSSES; 18 (d) REASONABLE ATTORNEYS' FEES AND COSTS; AND 19 (e) ANY OTHER APPROPRIATE RELIEF. 20 (2) ONLY DECLARATORY RELIEF AND INJUNCTIVE RELIEF SHALL BE 21 AVAILABLE AGAINST A PRIVATE PERSON NOT ACTING UNDER COLOR OF 22 STATE LAW UPON A SUCCESSFUL ASSERTION OF A DEFENSE UNDER THIS 23 PART 10. 24 24-34-1007. Immunity waived. (1) NOTWITHSTANDING ANY 25 LAW TO THE CONTRARY, SOVEREIGN, GOVERNMENTAL, AND QUALIFIED 26 IMMUNITIES TO SUIT AND FROM LIABILITY ARE WAIVED AND ABOLISHED TO 27 SB18-241 -8- THE EXTENT OF LIABILITY CREATED BY THIS PART 10, AND A PERSON MAY 1 SUE THE STATE GOVERNMENT, EXCEPT STATE COURTS, FOR DAMAGES 2 ALLOWED BY THIS PART 10. 3 (2) NOTWITHSTANDING SUBSECTION (1) OF THIS SECTION, THIS 4 PART 10 DOES NOT WAIVE OR ABOLISH SOVEREIGN IMMUNITY TO SUIT AND 5 FROM LIABILITY UNDER THE ELEVENTH AMENDMENT TO THE UNITED 6 STATES CONSTITUTION. 7 24-34-1008. Two-year limitation period. A PERSON MUST BRING 8 AN ACTION TO ASSERT A CLAIM UNDER THIS PART 10 NOT LATER THAN TWO 9 YEARS AFTER THE DATE THAT THE PERSON KNEW OR SHOULD HAVE 10 KNOWN THAT A DISCRIMINATORY ACTION WAS TAKEN AGAINST THAT 11 PERSON. 12 24-34-1009. Rules of construction. (1) Broad construction. 13 THIS PART 10 MUST BE CONSTRUED IN FAVOR OF A BROAD PROTECTION OF 14 FREE EXERCISE OF RELIGIOUS BELIEFS AND MORAL CONVICTIONS, TO THE 15 MAXIMUM EXTENT PERMITTED BY THE STATE AND FEDERAL 16 CONSTITUTIONS. 17 (2) No preemption, repeal, or narrow construction. THE 18 PROTECTION OF FREE EXERCISE OF RELIGIOUS BELIEFS AND MORAL 19 CONVICTIONS AFFORDED BY THIS PART 10 ARE IN ADDITION TO THE 20 PROTECTIONS PROVIDED UNDER FEDERAL LAW, STATE LAW, AND THE 21 STATE AND FEDERAL CONSTITUTIONS. NOTHING IN THIS PART 10 MAY BE 22 CONSTRUED TO PREEMPT OR REPEAL ANY STATE OR LOCAL LAW THAT IS 23 EQUALLY OR MORE PROTECTIVE OF FREE EXERCISE OF RELIGIOUS BELIEFS 24 OR MORAL CONVICTIONS. NOTHING IN THIS PART 10 MAY BE CONSTRUED 25 TO NARROW THE MEANING OR APPLICATION OF ANY STATE OR LOCAL LAW 26 PROTECTING FREE EXERCISE OF RELIGIOUS BELIEFS OR MORAL 27 SB18-241 -9- CONVICTIONS. NOTHING IN THIS PART 10 MAY BE CONSTRUED TO PREVENT 1 THE STATE GOVERNMENT FROM PROVIDING, EITHER DIRECTLY OR 2 THROUGH AN INDIVIDUAL OR ENTITY NOT SEEKING PROTECTION UNDER 3 THIS PART 10, ANY BENEFIT OR SERVICE AUTHORIZED UNDER STATE LAW. 4 (3) Supersede other state law. THIS PART 10 APPLIES TO, AND IN 5 CASES OF CONFLICT SUPERSEDES, EACH STATUTE OF THE STATE THAT 6 IMPINGES UPON THE FREE EXERCISE OF RELIGIOUS BELIEFS AND MORAL 7 CONVICTIONS PROTECTED BY THIS PART 10, UNLESS A CONFLICTING 8 STATUTE IS EXPRESSLY MADE EXEMPT FROM THE APPLICATION OF THIS 9 PART 10. THIS PART 10 ALSO APPLIES TO, AND IN CASES OF CONFLICT 10 SUPERSEDES, ANY ORDINANCE, RULE, REGULATION, ORDER, OPINION, 11 DECISION, PRACTICE, OR OTHER EXERCISE OF THE STATE GOVERNMENT'S 12 AUTHORITY THAT IMPINGES UPON THE FREE EXERCISE OF RELIGIOUS 13 BELIEFS AND MORAL CONVICTIONS PROTECTED BY THIS PART 10. 14 (4) Severability. IF ANY PROVISION OF THIS PART 10 OR ANY 15 APPLICATION OF SUCH PROVISION TO ANY PARTICULAR PERSON OR 16 CIRCUMSTANCE IS HELD TO BE INVALID UNDER LAW, THE REMAINDER OF 17 THIS PART 10 AND THE APPLICATION OF ITS PROVISIONS TO ANY OTHER 18 PERSON OR CIRCUMSTANCE IS NOT AFFECTED. 19 SECTION 2. Act subject to petition - effective date. This act 20 takes effect at 12:01 a.m. on the day following the expiration of the 21 ninety-day period after final adjournment of the general assembly (August 22 8, 2018, if adjournment sine die is on May 9, 2018); except that, if a 23 referendum petition is filed pursuant to section 1 (3) of article V of the 24 state constitution against this act or an item, section, or part of this act 25 within such period, then the act, item, section, or part will not take effect 26 unless approved by the people at the general election to be held in 27 SB18-241 -10- November 2018 and, in such case, will take effect on the date of the 1 official declaration of the vote thereon by the governor. 2 SB18-241 -11-