Text of MA H 1392 (2020)

1 of 13 HOUSE DOCKET, NO. 3904 FILED ON: 1/18/2019 HOUSE . . . . . . . . . . . . . . . No. 1392 The Commonwealth of Massachusetts _________________ PRESENTED BY: David F. DeCoste _________________ To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General Court assembled: The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill: An Act to protect the religious beliefs and moral convictions of citizens of the Commonwealth. _______________ PETITION OF: NAME: DISTRICT/ADDRESS: David F. DeCoste 5th Plymouth 2 of 13 HOUSE DOCKET, NO. 3904 FILED ON: 1/18/2019 HOUSE . . . . . . . . . . . . . . . No. 1392 By Mr. DeCoste of Norwell, a petition (accompanied by bill, House, No. 1392) of David F. DeCoste for legislation to to protect the religious beliefs and moral convictions of citizens of the Commonwealth. The Judiciary. The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-First General Court (2019-2020) _______________ An Act to protect the religious beliefs and moral convictions of citizens of the Commonwealth. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: 1 Section 1. Protected religious beliefs and moral convictions. 2 IN GENERAL.—The sincerely held religious beliefs or moral convictions protected by 3 this Chapter are the belief or conviction: 4 (1) regarding the sex of the two individuals who may enter into a marriage; 5 (2) that male (man) or female (woman) refer to an individual’s immutable biological 6 sex as objectively determined by anatomy and genetics by time of birth. 7 Section 2. Protections for persons, religious organizations, and private associations. 8 (a) Protections for Religious Organizations.—The State government shall not take 9 any discriminatory action against a religious organization wholly or partially on the basis that 10 such organization: 3 of 13 11 (1) solemnizes or declines to solemnize any marriage, or provides or declines to 12 provide services, accommodations, facilities, goods, or privileges for a purpose related to the 13 solemnization, formation, celebration, or recognition of any marriage, based upon or in a manner 14 consistent with a sincerely held religious belief or moral conviction described in Section 1. 15 (2) makes any employment-related decision, including but not limited to the decision 16 whether or not to hire, terminate, or discipline an individual whose conduct or religious beliefs 17 are inconsistent with those of the religious organization, based upon or in a manner consistent 18 with a sincerely held religious belief or moral conviction described in Section 1. 19 (3) makes any decision concerning the sale, rental, occupancy of, or terms and 20 conditions of occupying a dwelling or other housing under its control based upon or in a manner 21 consistent with a sincerely held religious belief or moral conviction described in Section 1. 22 (b) Protections for Religious Adoption Agencies.—The State government shall not 23 take any discriminatory action against a religious organization that advertises, provides, or 24 facilitates adoption or foster care, wholly or partially on the basis that such organization has 25 provided or declined to provide any adoption or foster-care service, or related service, based 26 upon or in a manner consistent with a sincerely held religious belief or moral conviction 27 described in Section 1. 28 (c) Protections for Foster and Adoptive Parents.—The State government shall not 29 take any discriminatory action against a person who the State grants custody of a foster or 30 adoptive child, or who seeks from the State custody of a foster or adoptive child, wholly or 31 partially on the basis that the person guides, instructs, or raises a child, or intends to guide, 4 of 13 32 instruct, or raise a child, based upon or in a manner consistent with a sincerely held religious 33 belief or moral conviction described in Section 1. 34 (d) Protections for Healthcare Providers.—The State Government shall not take any 35 discriminatory action against a person wholly or partially on the basis that the person declines to 36 participate in the provision of treatments, counseling, or surgeries related to sex reassignment or 37 gender identity transitioning or declines to participate in the provision of psychological, 38 counseling, or fertility services based upon a sincerely held religious belief or moral conviction 39 described in Section 1. This Section may not be construed to allow any person to deny visitation, 40 recognition of a designated representative for health care decision-making, or emergency 41 medical treatment necessary to cure an illness or injury as required by law. 42 (e) Protections for Providers of Certain Marriage-related Goods and Services.—The 43 State government shall not take any discriminatory action against a person wholly or partially on 44 the basis that the person has provided or declined to provide the following services, 45 accommodations, facilities, goods, or privileges for a purpose related to the solemnization, 46 formation, celebration, or recognition of any marriage, based upon or in a manner consistent with 47 a sincerely held religious belief or moral conviction described in Section 1: 48 (1) photography, poetry, videography, disc-jockey services, wedding planning, 49 printing, publishing, counseling, or similar marriage-related goods or services; or 50 (2) floral arrangements, dress making, cake or pastry artistry, assembly-hall or other 51 wedding-venue rentals, limousine or other car-service rentals, jewelry sales and services, or 52 similar marriage-related services, accommodations, facilities, or goods. 5 of 13 53 (f) Protections for Sex-Specific Policies in Intimate Facilities and Settings.—The 54 State government shall not take any discriminatory action against a person wholly or partially on 55 the basis that the person establishes sex-specific standards or policies concerning employee or 56 student dress or grooming, or concerning access to restrooms, spas, baths, showers, dressing 57 rooms, locker rooms, or other intimate facilities or settings, based upon or in a manner consistent 58 with a sincerely held religious belief or moral conviction described in Section 1. 59 (g) Protections for State Employee Speech.—The State government shall not take any 60 discriminatory action against a state employee wholly or partially on the basis that such 61 employee lawfully speaks or engages in expressive conduct based upon or in a manner consistent 62 with a sincerely held religious belief or moral conviction described in Section 1 so long as: 63 (1) if the employee’s speech or expressive conduct occurs in the workplace, that 64 speech or expressive conduct is consistent with the time, place, manner, and frequency of any 65 other expression of a religious, political, or moral belief or conviction allowed; or 66 (2) if the employee’s speech or expressive conduct occurs outside the workplace, that 67 speech or expressive conduct is in the employee’s personal capacity and outside the course of 68 performing work duties. 69 (h) Protections for State Employees or Officials That License or Solemnize 70 Marriages.— 71 (1) Any person employed or acting on behalf of the State government who has 72 authority to authorize or license marriages, including but not limited to clerks, registers of deeds, 73 or their deputies, may seek recusal from authorizing or licensing lawful marriages based upon or 74 in a manner consistent with a sincerely held religious belief or moral conviction described in 6 of 13 75 Section 1. Any person making such recusal shall provide prior written notice to the [State 76 Registrar], and the State government shall not take any discriminatory action against that person 77 wholly or partially on the basis of such recusal. The [State Registrar] shall take all necessary 78 steps to ensure that the authorization and licensing of any legally valid marriage is not impeded 79 or delayed as a result of any recusal. 80 (2) Any person employed or acting on behalf of the State government who has 81 authority to perform or solemnize marriages, including but not limited to judges, magistrates, 82 justices of the peace, or their deputies, may seek recusal from performing or solemnizing lawful 83 marriages based upon or in a manner consistent with a sincerely held religious belief or moral 84 conviction described in Section 1. Any person making such recusal shall provide prior written 85 notice to the [State Agency], and the State government shall not take any discriminatory action 86 against that person wholly or partially on the basis of such recusal. The [State Agency] shall take 87 all necessary steps to ensure that the performance or solemnization of any legally valid marriage 88 is not impeded or delayed as a result of any recusal. 89 Section 3. Prohibited discriminatory actions. 90 (a) Discriminatory Action Defined.—As used in this Chapter, discriminatory action 91 means and includes any action taken by the State government to: 92 (1) alter in any way the tax treatment of, or cause any tax, penalty, or payment to be 93 assessed against, or deny, delay, revoke, or otherwise make unavailable an exemption from 94 taxation of any person referred to in Section 2 of this Chapter; 95 (2) disallow, deny, or otherwise make unavailable a deduction for state tax purposes 96 of any charitable contribution made to or by such person; 7 of 13 97 (3) withhold, reduce, exclude, terminate, materially alter the terms or conditions of, 98 or otherwise make unavailable or deny any state grant, contract, subcontract, cooperative 99 agreement, guarantee, loan, scholarship, or other similar benefit from or to such person; 100 (4) withhold, reduce, exclude, terminate, materially alter the terms or conditions of, 101 or otherwise make unavailable or deny any entitlement or benefit under a state benefit program 102 from or to such person; 103 (5) impose, levy, or assess a monetary fine, fee, penalty, damages award, or 104 injunction; or 105 (6) withhold, reduce, exclude, terminate, materially alter the terms or conditions of, 106 or otherwise make unavailable or deny any license, certification, accreditation, custody award or 107 agreement, diploma, grade, recognition, or other similar benefit, position, or status from or to any 108 person. 109 (7) refuse to hire or promote, force to resign, fire, demote, sanction, discipline, materially 110 alter the terms or conditions of employment, or retaliate or take other adverse employment action 111 against a person employed or commissioned by the State government. 112 (b) Accreditation, Licensure, Certification.—The State government shall consider 113 accredited, licensed, or certified any person that would otherwise be accredited, licensed, or 114 certified, respectively, for any purposes under state law but for a determination against such 115 person wholly or partially on the basis that the person believes, speaks, or acts in accordance 116 with a sincerely held religious belief or moral conviction described in Section 1. 117 Section 4. Claim or defense against state action. 8 of 13 118 (a) Cause of Action and Defense.—A person may assert a violation of this Chapter as 119 a claim against the State government in any judicial or administrative proceeding or as a defense 120 in any judicial or administrative proceeding without regard to whether the proceeding is brought 121 by or in the name of the State government, any private person, or any other party. 122 (b) Administrative Remedies Not Required.—Notwithstanding any other provision of 123 law, an action under this Chapter may be commenced, and relief may be granted, in a court of 124 the State without regard to whether the person commencing the action has sought or exhausted 125 available administrative remedies. 126 Section 5. Remedies. 127 Any person who successfully asserts a claim or defense under this Chapter may recover: 128 (1) declaratory relief; 129 (2) injunctive relief to prevent or remedy a violation of this Chapter or the effects of 130 such a violation; 131 (3) compensatory damages for pecuniary and non-pecuniary losses; 132 (4) reasonable attorneys’ fees and costs; and 133 (5) any other appropriate relief; 134 except only declaratory relief and injunctive relief shall be available against a private 135 person not acting under color of state law upon a successful assertion of a defense under this 136 Chapter. 137 Section 6. Immunity waived. 9 of 13 138 (a) Sovereign, governmental, and qualified immunities to suit and from liability are 139 waived and abolished to the extent of liability created by Section 5 of this Chapter, and a person 140 may sue the State government, except state courts, for damages allowed by that Section. 141 (b) Notwithstanding Subsection (a), this Chapter does not waive or abolish sovereign 142 immunity to suit and from liability under the Eleventh Amendment to the United States 143 Constitution. 144 Section 7. Rules of construction. 145 (a) Broad Construction.—This Chapter shall be construed in favor of a broad 146 protection of free exercise of religious beliefs and moral convictions, to the maximum extent 147 permitted by the state and federal constitutions. 148 (b) No Preemption, Repeal, or Narrow construction.—The protection of free exercise 149 of religious beliefs and moral convictions afforded by this Chapter are in addition to the 150 protections provided under federal law, state law, and the state and federal constitutions. Nothing 151 in this Chapter shall be construed to preempt or repeal any state or local law that is equally or 152 more protective of free exercise of religious beliefs or moral convictions. Nothing in this Chapter 153 shall be construed to narrow the meaning or application of any state or local law protecting free 154 exercise of religious beliefs or moral convictions. And nothing in this Chapter shall be construed 155 to prevent the State government from providing, either directly or through an individual or entity 156 not seeking protection under this Chapter, any benefit or service authorized under state law. 157 (c) Supersede Other State Law.—This Chapter applies to, and in cases of conflict 158 supersedes, each statute of the State that impinges upon the free exercise of religious beliefs and 159 moral convictions protected by this Chapter, unless a conflicting statute is expressly made 10 of 13 160 exempt from the application of this Chapter. This Chapter also applies to, and in cases of conflict 161 supersedes, any ordinance, rule, regulation, order, opinion, decision, practice, or other exercise of 162 the State government’s authority that impinges upon the free exercise of religious beliefs and 163 moral convictions protected by this Chapter. 164 (d) Severability.—If any provision of this Chapter or any application of such 165 provision to any particular person or circumstance is held to be invalid under law, the remainder 166 of this Chapter and the application of its provisions to any other person or circumstance shall not 167 be affected. 168 Section 8. Two-year limitations period. 169 A person must bring an action to assert a claim under this Chapter not later than two 170 years after the date that the person knew or should have known that a discriminatory action was 171 taken against that person. 172 Section 9. Definitions. 173 In this Chapter: 174 (a) State benefit program.—The term “state benefit program” means any program 175 administered or funded by the State, or by any agent on behalf of the State, providing cash, 176 payments, grants, contracts, loans, or in-kind assistance. 177 (b) State government.—The term “State government” means: 178 (1) the State or a political subdivision of the State; 11 of 13 179 (2) any agency of the State or of a political subdivision of the State, including a 180 department, bureau, board, commission, council, court, or public institution of higher education; 181 (3) any person acting under color of state law; and 182 (4) any private person suing under or attempting to enforce a law, rule, or regulation 183 adopted by the State or a political subdivision of the State. 184 (c) Person.—The term “person” means: 185 (1) a natural person, in his or her individual capacity, regardless of religious 186 affiliation or lack thereof, or in his or her capacity as a member, officer, owner, volunteer, 187 employee, manager, religious leader, clergy, or minister of any entity described in this Section; 188 (2) a religious organization; 189 (3) a sole proprietorship, partnership, trust, closely held corporation, or other closely 190 held entity operating with a sincerely held religious belief or moral conviction described in 191 Section 1; or 192 (4) cooperatives, ventures, or enterprises comprised of two or more individuals or 193 entities described in this subsection regardless of non-profit or for-profit status. 194 (d) Religious organization.—The term “religious organization” means: 195 (1) a house of worship, including but not limited to churches, synagogues, shrines, 196 mosques, and temples; 12 of 13 197 (2) a religious group, corporation, association, school or educational institution, ministry, 198 order, society, or similar entity, regardless of whether it is integrated or affiliated with a church 199 or other house of worship. 200 (3) an officer, owner, employee, manager, religious leader, clergy, or minister of an entity 201 or organization described in this subsection. 202 (e) Adoption or Foster Care.—The term “adoption or foster care” or “adoption or 203 foster-care service” means social services provided to or on behalf of children, including: 204 (1) assisting abused or neglected children; 205 (2) teaching children and parents occupational, homemaking, and other domestic skills; 206 (3) promoting foster parenting; 207 (4) providing foster homes, residential care, group homes, or temporary group 208 shelters for children; 209 (5) recruiting foster parents; 210 (6) placing children in foster homes; 211 (7) licensing foster homes; 212 (8) promoting adoption or recruiting adoptive parents; 213 (9) assisting adoptions or supporting adoptive families; 214 (10) performing or assisting home studies; 215 (11) assisting kinship guardianships or kinship caregivers; 13 of 13 216 (12) providing family preservation services; 217 (13) providing family support services; and 218 (14) providing temporary family reunification services.