Get Wonky: United States Code 42, Chapter 21B

In light of the recent news that the Georgia Senate is trying to resurrect the “religious liberty” bill, I thought it might be helpful to provide some context. Senate Bill 233 would make U.S.C. 42, Chapter  21B apply to state government actors.  Here’s what that national statute says (emphasis mine):

U.S.C. 42, Chapter 21B

(a) The Congress finds that—

  1. the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
  2. laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
  3. governments should not substantially burden religious exercise without compelling justification;
  4. in Employment Division v. Smith,494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
  5. the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

(b) The purposes of this chapter are—

  1. to restore the compelling interest test as set forth in Sherbert v. Verner,374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
  2. to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

 

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

  1. is in furtherance of a compelling governmental interest; and
  2. is the least restrictive means of furthering that compelling governmental interest.

(c) Judicial relief

A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

As used in this chapter—

  1. the term “government” includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity;
  2. the term “covered entity” means the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;
  3. the term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion; and
  4. the term “exercise of religion” means religious exercise, as defined insection 2000cc–5 of this title.

 

(a)In general

This chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.

(b)Rule of construction

Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.

(c) Religious belief unaffected

Nothing in this chapter shall be construed to authorize any government to burden any religious belief.

Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establishment Clause”). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter. As used in this section, the term “granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.


Some thoughts:

Employment Division v Smith is that case you might have heard about–the dude who got fired for smoking peyote as part of a religious ceremony. The Supreme Court ruled that, since the law prohibiting peyote’s use applied to everyone, regardless of their faith, it was not unconstitutional. Further, it argued that “neutral laws” of “general applicability” didn’t violate the Free Exercise clause.

Sherbert v Verner established that governments had to show a compelling interest when interfering with religious practices; this was obviously curtailed significantly by the above case, which is what led to Congress passing this bill in 1993.



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