Text of SD SB 149 (2017)

State of South Dakota NINETY-SECOND SESSION LEGISLATIVE ASSEMBLY, 2017 686Y0610 SENATE BILL NO. 149 Introduced by: Senator Solano and Representative Haugaard FOR AN ACT ENTITLED, An Act to provide certain protections to faith-based or religious 1 child-placement agencies. 2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 3 Section 1. That chapter 26-6 be amended by adding a NEW SECTION to read: 4 Terms used in this Act mean: 5 (1) "Child-placement agency," an organization that receives and places children in foster 6 homes or for adoption, with or without compensation, as a regular activity of that 7 organization or that performs those services as an adjunct to other regular activities; 8 (2) "State benefit program," any program administered or funded by the state or by any 9 agent on behalf of the state that provides cash, payments, grants, contracts, loans or 10 in-kind assistance; 11 (3) "State,": 12 (a) The State of South Dakota or any political subdivision thereof; 13 (b) Any agency of the State of South Dakota or of a political subdivision of the 14 state including any department, bureau, board, commission, council, court, or 15 100 copies were printed on recycled paper by the South Dakota Legislative Research Council at a cost of $.161 per page. v Insertions into existing statutes are indicated by underscores. Deletions from existing statutes are indicated by overstrikes. - 2 - SB 149 public institution of higher education; 1 (c) Any person acting under the authority of state law. 2 Section 2. That chapter 26-6 be amended by adding a NEW SECTION to read: 3 For the purposes of this Act, the term, adverse action, means any action that directly or 4 indirectly adversely affects a child-placement agency or organization seeking to become a child- 5 placement agency, places the child-placement agency or organization in a worse position than 6 it was in before the action was taken, or is likely to deter an adverse action or organization from 7 acting or refusing to act. The term includes, without limitation, the following: 8 (1) Altering in any way the tax treatment of, or causing any tax, penalty, or payment to 9 be assessed against, or denying, delaying, revoking, or otherwise making unavailable 10 an exemption from taxation; 11 (2) Disallowing, denying, or otherwise making unavailable a deduction for state tax 12 purposes of any charitable contribution made to an organization; 13 (3) Denying an application for, refusing to renew, or canceling any benefit from a state 14 benefit program or other funding; 15 (4) Declining to enter into, refusing to renew, or canceling a contract; 16 (5) Declining to issue, refusing to renew, or canceling a license; 17 (6) Imposing, levying, or assessing a monetary fine, fee, penalty, damages, award, or 18 injunction; 19 (7) Taking any enforcement action; 20 (8) Discriminating against an organization in regard to participation in a state benefit 21 program; 22 (9) Limiting the ability of a person to engage in child-placement services; or 23 (10) Taking any action that materially alters the terms or conditions of funding or a 24 - 3 - SB 149 contract or license. 1 Section 3. That chapter 26-6 be amended by adding a NEW SECTION to read: 2 No child-placement agency may be required to provide any service that conflicts with, or 3 provide any service under circumstances that conflict with any sincerely-held religious belief 4 or moral conviction of the child-placement agency. 5 Section 4. That chapter 26-6 be amended by adding a NEW SECTION to read: 6 The state may not discriminate or take any adverse action against a child-placement agency 7 or an organization seeking to become a child-placement agency on the basis, wholly or partly, 8 that the child-placement agency has declined or will decline to provide any service that conflicts 9 with, or provide any service under circumstances that conflict with a sincerely-held religious 10 belief or moral conviction of the child-placement agency. 11 The state may not enter into a contract that is inconsistent with, would in any way interfere 12 with, or would in any way require an organization to surrender any right created in this Act. 13 Section 5. That chapter 26-6 be amended by adding a NEW SECTION to read: 14 Any faith-based or religious child-placement agency or organization that seeks to become 15 a child-placement agency is eligible, on the same basis as any other child-placement agency or 16 organization, to receive a license or participate in a state benefit program. The state may not 17 discriminate against a faith-based or religious organization on the basis, wholly or partly, of the 18 organization's religious character or affiliation. 19 Section 6. That chapter 26-6 be amended by adding a NEW SECTION to read: 20 A faith-based or religious child-placement agency that enters into a contract with the state 21 or participates in a state benefit program for child-placement services shall retain the agency's 22 independence from the state, including the child-placement agency's control over the definition, 23 development, practice, and expression of the agency's religious beliefs and moral convictions; 24 - 4 - SB 149 the agency's hiring and employment practices; and decisions as to whether any child-placement 1 service conflicts with any sincerely-held religious belief or moral conviction of the agency. 2 Section 7. That chapter 26-6 be amended by adding a NEW SECTION to read: 3 No provision of this Act may be construed to allow a child-placement agency to decline to 4 provide a service on the basis of a person's race, ethnicity, or national origin. 5 Section 8. That chapter 26-6 be amended by adding a NEW SECTION to read: 6 A person may assert a violation of this Act as a claim against the state in any judicial or 7 administrative proceeding or as a defense in any judicial or administrative proceeding without 8 regard to whether the proceeding is brought by or in the name of the state, a private person, or 9 any other party. Notwithstanding any other provisions of law, an action under the provisions of 10 this Act may be commenced, and relief may be granted, in a court of the state without regard 11 to whether the person commencing the action has sought or exhausted any available 12 administrative remedies. 13 Section 9. That chapter 26-6 be amended by adding a NEW SECTION to read: 14 Any person who successfully asserts a claim or defense pursuant to this Act may recover the 15 following: 16 (1) Declaratory relief; 17 (2) Injunctive relief to prevent or remedy a violation of the provisions of this Act or the 18 effects of that violation; 19 (3) Compensatory damages for pecuniary and non-pecuniary losses; 20 (4) Reasonable attorneys' fees and costs; and 21 (5) Any other appropriate relief. 22 Section 10. That chapter 26-6 be amended by adding a NEW SECTION to read: 23 A person may sue the state, excluding any state court, for damages allowed pursuant to this 24 - 5 - SB 149 Act. However, no provision of this Act waives the sovereign immunity of the state. 1 Section 11. That chapter 26-6 be amended by adding a NEW SECTION to read: 2 The provisions of this Act shall be construed in favor of a broad protection of free exercise 3 of religious beliefs and moral convictions, to the maximum extent afforded by the federal and 4 state constitutions. The protection of free exercise of religious beliefs and moral convictions 5 afforded by this Act is in addition to the protections provided under federal law, state law, and 6 the federal and state constitutions. Nothing in this section may be construed to: 7 (1) Preempt or repeal any state or local law that is equally or more protective of free 8 exercise of religious beliefs or moral convictions; 9 (2) Narrow the meaning or application of any state or local law protecting free exercise 10 of religious beliefs or moral convictions; or 11 (3) Prevent the state from providing, either directly or through an individual or entity not 12 seeking protection under this Act, any benefit or service authorized under state law. 13 Section 12. That chapter 26-6 be amended by adding a NEW SECTION to read: 14 The provisions of this Act apply to, and in cases of conflict, supersede any other provision 15 of law that impinges upon the free exercise of religious beliefs and moral convictions protected 16 pursuant to this Act, unless a conflicting law is expressly made exempt from the application of 17 the provisions of this Act. 18 Section 13. That chapter 26-6 be amended by adding a NEW SECTION to read: 19 To assert a claim under the provisions of this Act, a person shall bring an action no later than 20 two years after the date the person knew or should have known that discrimination occurred or 21 an adverse action was taken against the person. 22

AN ACT ENTITLED, An Act to provide certain protections to faith-based or religious child-placement agencies. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: Section 1. That chapter 26-6 be amended by adding a NEW SECTION to read: Terms used in this Act mean: (1) "Child-placement agency," a private organization that receives and places children in foster homes or for adoption, with or without compensation, as a regular activity of that organization or that performs those services as an adjunct to other regular activities; (2) "State benefit program," any program administered or funded by the state or by any agent on behalf of the state that provides cash, payments, grants, contracts, loans or in-kind assistance; (3) "State,": (a) The State of South Dakota or any political subdivision thereof; (b) Any agency of the State of South Dakota or of a political subdivision of the state including any department, bureau, board, commission, council, court, or public institution of higher education; (c) Any person acting under the authority of state law. Section 2. That chapter 26-6 be amended by adding a NEW SECTION to read: For the purposes of this Act, the term, adverse action, means any action that directly or indirectly adversely affects a child-placement agency or organization seeking to become a child-placement agency, places the child-placement agency or organization in a worse position than it was in before the action was taken, or is likely to deter a child-placement agency or organization from acting or refusing to act. The term includes, without limitation, the following: SB No. 149 Page 1 (1) Altering in any way the tax treatment of, or causing any tax, penalty, or payment to be assessed against, or denying, delaying, revoking, or otherwise making unavailable an exemption from taxation; (2) Disallowing, denying, or otherwise making unavailable a deduction for state tax purposes of any charitable contribution made to an organization; (3) Denying an application for, refusing to renew, or canceling any benefit from a state benefit program or other funding; (4) Declining to enter into, refusing to renew, or canceling a contract; (5) Declining to issue, refusing to renew, or canceling a license; (6) Imposing, levying, or assessing a monetary fine, fee, penalty, damages, award, or injunction; (7) Taking any enforcement action; (8) Discriminating against an organization in regard to participation in a state benefit program; (9) Limiting the ability of a person to engage in child-placement services; or (10) Taking any action that materially alters the terms or conditions of funding or a contract or license. Section 3. That chapter 26-6 be amended by adding a NEW SECTION to read: No child-placement agency may be required to provide any service that conflicts with, or provide any service under circumstances that conflict with any sincerely-held religious belief or moral conviction of the child-placement agency that shall be contained in a written policy, statement of faith, or other document adhered to by a child-placement agency. If a child-placement agency declines to provide any services, the child-placement agency shall provide in writing information advising the applicant of the Department of Social Services website SB No. 149 Page 2 and a list of licensed child-placement agencies with contact information. Section 4. That chapter 26-6 be amended by adding a NEW SECTION to read: The state may not discriminate or take any adverse action against a child-placement agency or an organization seeking to become a child-placement agency on the basis, wholly or partly, that the child-placement agency has declined or will decline to provide any service that conflicts with, or provide any service under circumstances that conflict with the agency's written sincerely-held religious belief or moral conviction of the child-placement agency. The state may not enter into a contract that is inconsistent with, would in any way interfere with, or would in any way require an organization to surrender any right created in this Act. Section 5. That chapter 26-6 be amended by adding a NEW SECTION to read: Any faith-based or religious child-placement agency or organization that seeks to become a child-placement agency is eligible, on the same basis as any other child-placement agency or organization, to receive a license or participate in a state benefit program. The state may not discriminate against a faith-based or religious organization on the basis, wholly or partly, of the organization's religious character or affiliation. Section 6. That chapter 26-6 be amended by adding a NEW SECTION to read: A faith-based or religious child-placement agency that enters into a contract with the state or participates in a state benefit program for child-placement services shall retain the agency's independence from the state, including the child-placement agency's control over the definition, development, practice, and expression of the agency's written religious beliefs and moral convictions; the agency's hiring and employment practices; and decisions as to whether any child- placement service conflicts with any sincerely-held religious belief or moral conviction of the agency. Section 7. That chapter 26-6 be amended by adding a NEW SECTION to read: SB No. 149 Page 3 No provision of this Act may be construed to allow a child-placement agency to decline to provide a service on the basis of a person's race, ethnicity, or national origin. Due regard shall be afforded to the Indian Child Welfare Act (25 U.S.C. §§ 1901-1963), as amended to January 1, 2017, if that Act is applicable. Section 8. That chapter 26-6 be amended by adding a NEW SECTION to read: A person may assert a violation of this Act as a claim against the state in any judicial or administrative proceeding or as a defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the state, a private person, or any other party. Notwithstanding any other provisions of law, an action under the provisions of this Act may be commenced, and relief may be granted, in a court of the state without regard to whether the person commencing the action has sought or exhausted any available administrative remedies. Section 9. That chapter 26-6 be amended by adding a NEW SECTION to read: Any person who successfully asserts a claim or defense pursuant to this Act may recover the following: (1) Declaratory relief; (2) Injunctive relief to prevent or remedy a violation of the provisions of this Act or the effects of that violation; and (3) Any other relief authorized by law. Section 10. That chapter 26-6 be amended by adding a NEW SECTION to read: A person may sue the state for the relief allowed pursuant to this Act. However, no provision of this Act otherwise waives the sovereign immunity of the state. Section 11. That chapter 26-6 be amended by adding a NEW SECTION to read: The provisions of this Act shall be construed in favor of a broad protection of free exercise of religious beliefs and moral convictions, to the maximum extent afforded by the federal and state SB No. 149 Page 4 constitutions. The protection of free exercise of religious beliefs and moral convictions afforded by this Act is in addition to the protections provided under federal law, state law, and the federal and state constitutions. Nothing in this section may be construed to: (1) Preempt or repeal any state or local law that is equally or more protective of free exercise of religious beliefs or moral convictions; (2) Narrow the meaning or application of any state or local law protecting free exercise of religious beliefs or moral convictions; or (3) Prevent the state from providing, either directly or through an individual or entity not seeking protection under this Act, any benefit or service authorized under state law. Section 12. That chapter 26-6 be amended by adding a NEW SECTION to read: The provisions of this Act apply to, and in cases of conflict, supersede any other provision of law that impinges upon the free exercise of religious beliefs and moral convictions protected pursuant to this Act, unless a conflicting law is expressly made exempt from the application of the provisions of this Act. Section 13. That chapter 26-6 be amended by adding a NEW SECTION to read: To assert a claim under the provisions of this Act, a person shall bring an action no later than two years after the date the person knew or should have known that discrimination occurred or an adverse action was taken against the person. Section 14. That chapter 26-6 be amended by adding a NEW SECTION to read: The provisions of this Act apply to any foster care or adoption placement for which a child- placement agency has received funding for that particular placement comprised in part of a federal subsidy only to the fullest extent allowed under federal law. Section 15. That chapter 26-6 be amended by adding a NEW SECTION to read: If a child-placement agency declines to provide any services under section 3 of this Act, the SB No. 149 Page 5 child-placement agency's decision does not limit the ability of another child-placement agency to provide those services and shall not be a factor in determining whether a placement in connection with the service is in the best interest of the child. SB No. 149 Page 6 An Act to provide certain protections to faith-based or religious child-placement agencies. ========================= ========================= I certify that the attached Act originated in the SENATE as Bill No. 149 ____________________________ Secretary of the Senate ========================= ========================= ____________________________ President of the Senate Attest: ____________________________ Secretary of the Senate ____________________________ Speaker of the House Attest: ____________________________ Chief Clerk Senate Bill No. 149 File No. ____ Chapter No. ______ ========================= ========================= Received at this Executive Office this _____ day of _____________ , 20____ at ____________ M. By _________________________ for the Governor ========================= ========================= The attached Act is hereby approved this ________ day of ______________ , A.D., 20___ ____________________________ Governor ========================= ========================= STATE OF SOUTH DAKOTA, ss. Office of the Secretary of State Filed ____________ , 20___ at _________ o'clock __ M. ____________________________ Secretary of State By _________________________ Asst. Secretary of State