[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 492 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 492
To prohibit the imposition of certain substantial burdens, relating to
COVID-19 vaccine mandates, on religious exercise, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 16, 2023
Mr. Rubio (for himself and Mr. Lee) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To prohibit the imposition of certain substantial burdens, relating to
COVID-19 vaccine mandates, on religious exercise, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Conscience Objections to Negligent
State COVID-19 Inoculation Edicts Need Constitutional Enforcement Act
of 2023'' or the ``CONSCIENCE Act of 2023''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) In response to the COVID-19 pandemic, State and local
governments and private sector entities have implemented
unprecedented public health requirements, including
requirements that their employees, customers, and other persons
receive a COVID-19 vaccine (referred to in this section as
``COVID-19 vaccine mandates''), resulting in millions of
Americans being subject to such requirements.
(2) Many COVID-19 vaccine mandates, due to their
unprecedented magnitude and scope of application, and the
unprecedented haste of and inattention to the religious
exercise of persons subject to the mandates by the
organizations implementing them, do not adequately protect the
religious freedom of the persons subject to them.
(3) As a result, millions of Americans have objected to
COVID-19 vaccine mandates--more than for any other medical
requirement for employment or for use of a public accommodation
in recent history--often at great personal cost, on the basis
that receiving a COVID-19 vaccine would violate their sincerely
held religious beliefs.
(4) COVID-19 vaccine mandates commonly threaten the rights
of employees and other persons to religious exercise by
requiring persons subject to the mandates to--
(A) receive a COVID-19 vaccine (with respect to
private entities, often under the color of law), in
violation of their sincerely held religious beliefs; or
(B) otherwise face substantial burdens such as the
loss of employment, pay, or status within employment,
the subjection to punitive personal public health
measures, or any other loss caused by a failure to
accommodate religious exercise.
(5) With respect to COVID-19 vaccine mandates implemented
by the States and the District of Columbia, the rights of
persons under the First Amendment to the Constitution of the
United States who are subject to such requirements have been
violated in the following ways:
(A) COVID-19 vaccine mandates for State employees
in the States of New York, Maine, and Rhode Island have
allowed for medical exemptions from the COVID-19
vaccine, but have not allowed for religious exemptions.
(B) The Governor of New York has stated that--
(i) New York intentionally excluded
religious exemptions from the COVID-19
vaccination mandate; and
(ii) the Governor was unaware of any
``organized religion'' that seeks religious
exemptions for the COVID-19 vaccine and those
individuals who seek such an exemption are not
``listening to God and what God wants;''.
(C) New York has allowed COVID-19 vaccinated
workers with symptomatic, active COVID-19 infections to
continue working in hospitals, but has not allowed
religious objectors who do not have COVID-19 to work in
hospitals.
(D) Maine removed the allowance for religious
exemptions for health care workers, effective September
1, 2021, in a law requiring all health care workers to
receive the COVID-19 vaccine and influenza vaccine.
(E) Rhode Island omitted religious exemptions to
COVID-19 vaccines.
(F) In Rhode Island, health care workers have been
required to receive the COVID-19 vaccine, and health
care facilities are required to deny entry to health
care workers or providers who are not fully vaccinated.
(6) With respect to COVID-19 vaccine mandates implemented
by private sector entities, United Airlines instituted an
``absolute'' policy requiring all employees to receive the
COVID-19 vaccine, and those who submitted requests for
religious exemptions were either automatically denied or placed
on unpaid leave with no benefits.
(7) COVID-19 vaccine mandates that do not accommodate
religious exercise have resulted in labor shortages that affect
interstate and foreign commerce.
(8) According to a report by the Committee on Small
Business and Entrepreneurship of the Senate, the Federal COVID-
19 vaccine requirement put an estimated 44,900,000 Americans at
risk of losing their jobs owing to their refusal to receive a
COVID-19 vaccine. A substantial number of those refusals may be
attributed to religious objections, as according to a survey by
the Public Religion Research Institute, 10 percent of Americans
believe that receiving a COVID-19 vaccine would conflict with
their religious beliefs.
(9) In Doe v. Mills, 142 S. Ct. 17 (2021) and Dr. A. v.
Hochul, 142 S. Ct. 552 (2021), the Supreme Court denied the
requests of employees requesting religious exemptions to COVID-
19 vaccine mandates, causing those employees to face
irreparable harm.
(10) The Free Exercise Clause of the First Amendment to the
Constitution protects rights of individuals to live out their
religious beliefs publicly through religious exercise.
(11) Congress has the power to enforce the right to free
exercise of religion, through remedial measures under section 5
of the 14th Amendment to the Constitution.
(12) Laws that protect the free exercise of religious
beliefs are consistent with the founding principles of the
United States and protections under the First Amendment to the
Constitution.
(13) Congress has the power to regulate interstate and
foreign commerce under the Commerce Clause of section 8 of
article I of the Constitution.
(b) Purpose.--The purpose of this Act is to preempt laws and
disallow practices that discriminate against persons due to their
religious exercise.
SEC. 3. DEFINITIONS.
In this Act:
(1) Covered person.--The term ``covered person'' means a
person raising a claim or defense under this Act.
(2) COVID-19 vaccine mandate.--The term ``COVID-19 vaccine
mandate'' means a mandate that an individual receive a COVID-19
vaccine.
(3) Demonstrates.--The term ``demonstrates'' means meets
the burdens of going forward with the evidence and of
persuasion.
(4) Free exercise clause.--The term ``Free Exercise
Clause'' means that portion of the First Amendment to the
Constitution of the United States that proscribes laws
prohibiting the free exercise of religion.
(5) Government.--The term ``government''--
(A) means--
(i) a State, county, municipality, or other
governmental entity created under the authority
of a State;
(ii) any branch, department, agency,
instrumentality, or official of an entity
listed in clause (i); and
(iii) any other person acting under color
of State law; and
(B) for the purpose of sections 5(b) and 6,
includes--
(i) the United States;
(ii) any branch, department, agency,
instrumentality, or official of the United
States; and
(iii) any other person acting under color
of Federal law.
(6) Program or activity.--The term ``program or activity''
means all of the operations of any entity as described in
paragraph (1) or (2) of section 606 of the Civil Rights Act of
1964 (42 U.S.C. 2000d-4a), any part of which is extended
Federal financial assistance.
(7) Religious exercise.--
(A) In general.--The term ``religious exercise''
includes any exercise of religion, whether or not
compelled by, or central to, a system of religious
belief.
(B) Rule.--
(i) Person.--In the case of a person,
refusing to receive a COVID-19 vaccine on the
basis of a sincerely held religious belief
shall be considered to be religious exercise of
the person.
(ii) Entity.--In the case of an entity,
refusing on the basis of a sincerely held
religious belief to require that any employee,
customer, or other person affiliated with the
entity receive a COVID-19 vaccine mandate shall
be considered to be religious exercise of the
entity.
SEC. 4. PROTECTION OF RELIGIOUS LIBERTY AND EXERCISE BY EXEMPTIONS FOR
THE COVID-19 VACCINE.
(a) Substantial Burdens.--
(1) General rule.--No government shall impose or implement
a COVID-19 vaccine mandate in a manner that imposes a
substantial burden on the religious exercise of a person,
including a religious assembly or institution, unless the
government demonstrates that imposition of the burden on that
person's, assembly's, or institution's religious exercise--
(A) is in furtherance of a compelling governmental
interest; and
(B) is the least restrictive means of furthering
that compelling governmental interest.
(2) Scope of application.--This subsection and subsection
(b) apply in any case in which--
(A) the substantial burden is imposed by State law,
even if the burden results from a rule of general
applicability;
(B) the substantial burden is imposed in a program
or activity that receives Federal financial assistance,
even if the burden results from a rule of general
applicability;
(C) the substantial burden is imposed by an entity
that operates a workplace and that is party to or
conducts work in connection with a contract or
contract-like instrument with any government, even if
the burden results from a rule of general
applicability;
(D) the substantial burden affects, or removal of
that substantial burden would affect, commerce with
foreign nations, among the several States, or with
Indian Tribes, even if the burden results from a rule
of general applicability; or
(E) the substantial burden is imposed in the
implementation of a COVID-19 vaccine mandate, under
which the government makes, or has in place formal or
informal procedures or practices that permit the
government to make, individualized assessments of
COVID-19 vaccine exemptions, even if the burden results
from a rule of general applicability.
(b) Discrimination and Exclusion.--
(1) Equal terms.--No government shall impose or implement a
COVID-19 vaccine mandate in a manner that treats a religious
exercise (including a condition) on less than equal terms with
a nonreligious exercise (including a condition).
(2) Nondiscrimination.--No government shall impose or
implement a COVID-19 vaccine mandate that imposes a substantial
burden on any person for an exercise on the basis of religion,
including a religious denomination.
(3) Exclusions and limits.--No government shall impose or
implement a COVID-19 vaccine mandate that--
(A) totally excludes religious exemptions; or
(B) unreasonably limits religious exemptions.
SEC. 5. JUDICIAL RELIEF.
(a) Cause of Action.--A covered person may assert an actual or
threatened violation of this Act by a government as a claim or defense
in a judicial or administrative proceeding and obtain compensatory
damages, injunctive relief, declaratory relief, or any other
appropriate relief against the government involved. 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.
(b) Burden of Persuasion.--If a covered person produces prima facie
evidence to support a claim alleging a violation of the Free Exercise
Clause or a violation of section 4, the government shall bear the
burden of persuasion on any element of the claim, except that the
covered person shall bear the burden of persuasion on whether the law
(including a regulation) or government practice that is challenged by
the claim substantially burdens the covered person's exercise of
religion.
(c) Administrative Remedies Not Required.--Notwithstanding any
other provision of law, an action under this section may be commenced,
and relief may be granted, in a district court of the United States
without regard to whether the covered person commencing the action has
sought or exhausted available administrative remedies.
(d) Full Faith and Credit.--Adjudication of a claim of a violation
of section 4 in a non-Federal forum shall not be entitled to full faith
and credit in a Federal court unless the claimant had a full and fair
adjudication of that claim in the non-Federal forum.
(e) Attorneys' Fees.--Section 722(b) of the Revised Statutes (42
U.S.C. 1988(b)) is amended by inserting ``the CONSCIENCE Act of 2023,''
after ``the Religious Land Use and Institutionalized Persons Act of
2000,''.
(f) Authority of United States To Enforce This Act.--The United
States may bring an action for injunctive or declaratory relief to
enforce compliance with this Act. Nothing in this subsection shall be
construed to deny, impair, or otherwise affect any right or authority
of the Attorney General, the United States, or any agency, officer, or
employee of the United States, acting under any law other than this
subsection, to institute or intervene in any proceeding.
SEC. 6. RULES OF CONSTRUCTION.
(a) Religious Belief Unaffected.--Nothing in this Act shall be
construed to authorize any government to burden any religious belief.
(b) Religious Exercise Not Regulated.--Nothing in this Act shall
create any basis--
(1) for restricting or burdening religious exercise; or
(2) for claims against a religious organization, including
any religiously affiliated school or institution of higher
education, not acting under color of law.
(c) Claims to Funding Unaffected.--Nothing in this Act shall create
or preclude a right of any religious organization to receive funding or
other assistance from a government, or of any person to receive
government funding for a religious activity, but this Act may require a
government to incur expenses in its own operations to avoid imposing a
substantial burden on religious exercise.
(d) Governmental Discretion in Alleviating Burdens on Religious
Exercise.--A government may avoid the preemptive force of any provision
of this Act by changing the policy or practice that results in a
substantial burden on religious exercise, by retaining the policy or
practice and exempting the substantially burdened religious exercise,
by providing exemptions from the policy or practice for applications
that substantially burden religious exercise, or by any other means
that eliminates the substantial burden.
(e) Effect on Other Law.--With respect to a claim brought under
this Act, proof that a substantial burden on a person's religious
exercise affects, or removal of that burden would affect, commerce with
foreign nations, among the several States, or with Indian Tribes, shall
not establish any inference or presumption that any religious exercise
is, or is not, subject to any law other than this Act.
(f) Broad Construction.--This Act shall be construed in favor of a
broad protection of religious exercise, to the maximum extent permitted
by the terms of this Act and the Constitution.
(g) No Preemption or Repeal.--Nothing in this Act shall be
construed to preempt State law, or repeal Federal law, that is equally
as protective of religious exercise as, or more protective of religious
exercise than, this Act.
(h) Severability.--If any provision of this Act or an amendment
made by this Act, or any application of such provision to any person or
circumstance, is held to be unconstitutional, the remainder of this Act
and the amendments made by this Act, and the application of the
provision to any other person or circumstance shall not be affected.
SEC. 7. ESTABLISHMENT CLAUSE UNAFFECTED.
Nothing in this Act shall be construed to affect, interpret, or in
any way address that portion of the First Amendment to the Constitution
prohibiting laws respecting an 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 Act. 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.
SEC. 8. APPLICABILITY.
This Act applies to any COVID-19 vaccine mandate, whether adopted
before, on, or after the date of enactment of this Act.
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