First Substitute S.B. 111

Senator D. Chris Buttars proposes the following substitute bill:

1 FREE EXERCISE OF RELIGION WITHOUT
2 GOVERNMENT INTERFERENCE
3 2007 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: D. Chris Buttars
6 House Sponsor: Gregory H. Hughes
7
8 LONG TITLE
9 General Description:
10 This bill enacts provisions creating a legal standard for the free exercise of religion.
11 Highlighted Provisions:
12 This bill:
13 . enacts Title 63, Chapter 90c, Free Exercise of Religion;
14 . waives governmental immunity for cases brought to enforce or obtain remedies for
15 violation of this chapter;
16 . provides that the state entity may justify a law or action that substantially burdens a
17 person's free exercise of religion only if the state entity demonstrates by a
18 preponderance of the evidence that the law or action is substantially related to an
19 important government interest;
20 . provides that the above standard applies even if the state law is generally applicable
21 to all persons;
22 . authorizes a person whose right to free exercise of religion is burdened to recover
23 injunctive relief, declaratory relief, and recovery of reasonable costs and attorney
24 fees;
25 . permits a person to use a violation of this chapter as a defense in a judicial or

26 administrative proceeding;
27 . provides for the application of the requirements of the chapter;
28 . provides that the chapter does not apply to a law where violation of the law
29 constitutes a criminal offense;
30 . exempts inmates from the provisions of the chapter in certain circumstances; and
31 . provides a severability clause.
32 Monies Appropriated in this Bill:
33 None
34 Other Special Clauses:
35 None
36 Utah Code Sections Affected:
37 AMENDS:
38 63-30d-301, as last amended by Chapters 2 and 99, Laws of Utah 2005
39 ENACTS:
40 63-90c-101, Utah Code Annotated 1953
41 63-90c-102, Utah Code Annotated 1953
42 63-90c-103, Utah Code Annotated 1953
43 63-90c-104, Utah Code Annotated 1953
44 63-90c-105, Utah Code Annotated 1953
45 63-90c-106, Utah Code Annotated 1953
46 63-90c-107, Utah Code Annotated 1953
47
48 Be it enacted by the Legislature of the state of Utah:
49 Section 1. Section 63-30d-301 is amended to read:
50 63-30d-301. Waivers of immunity -- Exceptions.
51 (1) (a) Immunity from suit of each governmental entity is waived as to any contractual
52 obligation.
53 (b) Actions arising out of contractual rights or obligations are not subject to the
54 requirements of Sections 63-30d-401 , 63-30d-402 , 63-30d-403 , or 63-30d-601 .
55 (c) The Division of Water Resources is not liable for failure to deliver water from a
56 reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development

57 Act, if the failure to deliver the contractual amount of water is due to drought, other natural
58 condition, or safety condition that causes a deficiency in the amount of available water.
59 (2) Immunity from suit of each governmental entity is waived:
60 (a) as to any action brought to recover, obtain possession of, or quiet title to real or
61 personal property;
62 (b) as to any action brought to foreclose mortgages or other liens on real or personal
63 property, to determine any adverse claim on real or personal property, or to obtain an
64 adjudication about any mortgage or other lien that the governmental entity may have or claim
65 on real or personal property;
66 (c) as to any action based on the negligent destruction, damage, or loss of goods,
67 merchandise, or other property while it is in the possession of any governmental entity or
68 employee, if the property was seized for the purpose of forfeiture under any provision of state
69 law;
70 (d) subject to Subsection 63-30d-302 (1), as to any action brought under the authority of
71 Article I, Section 22, of the Utah Constitution, for the recovery of compensation from the
72 governmental entity when the governmental entity has taken or damaged private property for
73 public uses without just compensation;
74 (e) subject to Subsection 63-30d-302 (2), as to any action brought to recover [attorneys']
75 attorney fees under Sections 63-2-405 and 63-2-802 ;
76 (f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
77 Act; [or]
78 (g) as to any action brought to obtain relief from a land use regulation that imposes a
79 substantial burden on the free exercise of religion under Title 63, Chapter 90b, Utah Religious
80 Land Use Act[.]; or
81 (h) as to an action brought to obtain relief from governmental action that substantially
82 burdens the free exercise of religion under the requirements of Title 63, Chapter 90c, Free
83 Exercise of Religion.
84 (3) (a) Except as provided in Subsection (3)(b), immunity from suit of each
85 governmental entity is waived as to any injury caused by:
86 (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
87 crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or

88 (ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
89 or other public improvement.
90 (b) Immunity is not waived if the injury arises out of, in connection with, or results
91 from:
92 (i) a latent dangerous or latent defective condition of any highway, road, street, alley,
93 crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
94 (ii) a latent dangerous or latent defective condition of any public building, structure,
95 dam, reservoir, or other public improvement.
96 (4) Immunity from suit of each governmental entity is waived as to any injury
97 proximately caused by a negligent act or omission of an employee committed within the scope
98 of employment.
99 (5) Immunity is not waived under Subsections (3) and (4) if the injury arises out of, in
100 connection with, or results from:
101 (a) the exercise or performance, or the failure to exercise or perform, a discretionary
102 function, whether or not the discretion is abused;
103 (b) assault, battery, false imprisonment, false arrest, malicious prosecution, intentional
104 trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of
105 mental anguish, or violation of civil rights;
106 (c) the issuance, denial, suspension, or revocation of, or by the failure or refusal to
107 issue, deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar
108 authorization;
109 (d) a failure to make an inspection or by making an inadequate or negligent inspection;
110 (e) the institution or prosecution of any judicial or administrative proceeding, even if
111 malicious or without probable cause;
112 (f) a misrepresentation by an employee whether or not it is negligent or intentional;
113 (g) riots, unlawful assemblies, public demonstrations, mob violence, and civil
114 disturbances;
115 (h) the collection of and assessment of taxes;
116 (i) the activities of the Utah National Guard;
117 (j) the incarceration of any person in any state prison, county or city jail, or other place
118 of legal confinement;

119 (k) any natural condition on publicly owned or controlled lands, any condition existing
120 in connection with an abandoned mine or mining operation, or any activity authorized by the
121 School and Institutional Trust Lands Administration or the Division of Forestry, Fire, and State
122 Lands;
123 (l) research or implementation of cloud management or seeding for the clearing of fog;
124 (m) the management of flood waters, earthquakes, or natural disasters;
125 (n) the construction, repair, or operation of flood or storm systems;
126 (o) the operation of an emergency vehicle, while being driven in accordance with the
127 requirements of Section 41-6a-208 ;
128 (p) the activities of:
129 (i) providing emergency medical assistance;
130 (ii) fighting fire;
131 (iii) regulating, mitigating, or handling hazardous materials or hazardous wastes;
132 (iv) emergency evacuations;
133 (v) transporting or removing injured persons to a place where emergency medical
134 assistance can be rendered or where the person can be transported by a licensed ambulance
135 service; or
136 (vi) intervening during dam emergencies;
137 (q) the exercise or performance, or the failure to exercise or perform, any function
138 pursuant to Title 73, Chapter 10, Board of Water Resources - Division of Water Resources; or
139 (r) unauthorized access to government records, data, or electronic information systems
140 by any person or entity.
141 Section 2. Section 63-90c-101 is enacted to read:
142 CHAPTER 90c. FREE EXERCISE OF RELIGION
143 63-90c-101. Title.
144 This chapter is known as "Free Exercise of Religion."
145 Section 3. Section 63-90c-102 is enacted to read:
146 63-90c-102. Definitions.
147 As used in this chapter:
148 (1) "Exercise of religion" means the ability to act or refusal to act in a manner
149 substantially motivated by a sincerely held religious belief, whether or not the exercise is

150 compulsory or central to a larger system of religious belief.
151 (2) "Government entity" means:
152 (a) the state, a county, a municipality, a local school district, a higher education
153 institution, a special district, or any other political subdivision of the state; or
154 (b) any administrative subunit of an entity described in Subsection (2)(a).
155 (3) "Person" means a natural person or individual, corporation, organization, or any
156 other legal entity.
157 (4) "Substantially burden" means to inhibit or curtail religiously motivated practices.
158 Section 4. Section 63-90c-103 is enacted to read:
159 63-90c-103. Free exercise of religion protected.
160 (1) Free exercise of religion is a fundamental right that applies in this state under the
161 Utah Constitution Article I, Section 4, even if laws, rules, ordinances, or other government
162 actions are facially neutral.
163 (2) Except as provided in Subsection (4), a government entity shall not substantially
164 burden a person's exercise of religion even if the burden results from a law, rule, or ordinance
165 of general applicability.
166 (3) A government entity may substantially burden a person's exercise of religion only if
167 it demonstrates, by a preponderance of the evidence, that the application of the burden to the
168 person is substantially related to an important governmental interest.
169 Section 5. Section 63-90c-104 is enacted to read:
170 63-90c-104. Remedies.
171 (1) A person who asserts a claim or defense against a government entity under this
172 chapter may request:
173 (a) declaratory relief;
174 (b) temporary or permanent injunctive relief to prevent the threatened or continued
175 violation; or
176 (c) a combination of declaratory and injunctive relief.
177 (2) A prevailing party in an action brought under this chapter may recover its court
178 costs and reasonable attorney fees incurred.
179 (3) A person may not bring an action under this chapter against an individual, other
180 than an action against an individual acting in the individual's official capacity as an officer of a

181 government entity.
182 Section 6. Section 63-90c-105 is enacted to read:
183 63-90c-105. Burden on exercise of religion as a defense.
184 A person whose religious exercise is substantially burdened in violation of this chapter
185 may assert that violation as a defense in a judicial or administrative proceeding without regard
186 to whether the proceeding is brought in the name of the state or by any other person.
187 Section 7. Section 63-90c-106 is enacted to read:
188 63-90c-106. Application of chapter -- Application to criminal offenses --
189 Constitutions and establishment clause unaffected -- Application to inmates.
190 (1) (a) Subject to Subsections (1)(b) and (2), this chapter applies to all state laws and
191 administrative rules, all local laws and ordinances, and the implementation of those laws, rules,
192 and ordinances, whether statutory or otherwise, and whether enacted or adopted before, on, or
193 after the effective date of this chapter.
194 (b) This chapter does not apply to a law, rule, or ordinance where violation of the law,
195 rule, or ordinance would constitute a criminal offense.
196 (2) State laws that are enacted or adopted on or after the effective date of this chapter
197 are subject to requirements of this chapter unless the law explicitly excludes application by
198 reference to this chapter.
199 (3) The protection of free exercise of religion afforded by this chapter is in addition to
200 the protections provided under federal law and the constitutions of Utah and the United States.
201 (4) This chapter shall not be construed to authorize a government entity to burden a
202 person's free exercise of religion.
203 (5) This chapter shall not be construed to affect, interpret, or in any way address that
204 portion of the First Amendment to the United States Constitution prohibiting laws respecting
205 an establishment of religion.
206 (6) (a) Except to the extent prohibited by federal law, the provisions of this chapter do
207 not apply to an inmate, as defined in Section 64-13-1 , if the burden on the inmate's free
208 expression of religion results from a law, rule, ordinance, policy, action, or omission that is
209 reasonably related to a legitimate government interest, including:
210 (i) the deterrence of crime;
211 (ii) the prudent use of institutional resources;

212 (iii) the health or safety of inmates, correctional staff, or the public;
213 (iv) the rehabilitation of inmates; or
214 (v) institutional security.
215 (b) Except as prohibited by law, and consistent with the requirements of Subsection
216 63-30d-202 (4), officers and employees of a correctional facility or county jail are exempt from
217 liability in relation to any law, rule, ordinance, policy, action, or omission complained of under
218 the provisions of this chapter.
219 Section 8. Section 63-90c-107 is enacted to read:
220 63-90c-107. Severability.
221 If any word, phrase, sentence, or section of this chapter or its application to any person
222 or circumstance is determined to be invalid, the invalidity does not affect other provisions or
223 applications of this chapter that can be given effect without the invalid provision or application,
224 and to this end the provisions of this chapter are severable.