Representative LaVar Christensen proposes the following substitute bill:


1     
PROTECTIONS FOR RELIGIOUS EXPRESSION AND

2     
BELIEFS ABOUT MARRIAGE, FAMILY, OR SEXUALITY

3     
2015 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: J. Stuart Adams

6     
House Sponsor: LaVar Christensen

7     

8     LONG TITLE
9     General Description:
10          This bill provides certain protections and remedies for individuals, religious officials,
11     religious organizations, and government officers and employees concerning the free
12     exercise of religion and religious or deeply held beliefs about marriage, family, and
13     sexuality.
14     Highlighted Provisions:
15          This bill:
16          ▸     requires a county clerk, or a willing designee of the county clerk, to be available
17     during business hours to solemnize a legal marriage;
18          ▸     removes a requirement that a designee for solemnizing marriages be an office
19     employee;
20          ▸     creates a new chapter to establish certain religious protections;
21          ▸     defines terms;
22          ▸     requires that the chapter be broadly construed in favor of broad protection of
23     religious beliefs, exercises, and conscience;
24          ▸     addresses the scope of state and local governments' authority to enforce certain
25     laws;

26          ▸     provides protections for a religious official or organization that declines to
27     solemnize or recognize for ecclesiastical purposes a marriage because of the
28     official's or organization's religious beliefs;
29          ▸     prohibits government from:
30               •     removing a religious official's or organization's authority to solemnize a
31     marriage based on religious beliefs;
32               •     requiring a religious official or organization to provide services or
33     accommodations for a marriage that is contrary to the official's or organization's
34     religious beliefs;
35               •     requiring a religious official or organization to promote marriage that is contrary
36     to the official's or organization's religious beliefs; and
37               •     retaliating against an individual, a religious official, or a religious organization
38     for exercising protections contained in this legislation;
39          ▸     prohibits government and a government officials from taking negative action
40     against a licensee who holds a professional or business license based on the
41     licensee's beliefs or the licensee's lawful expression of those beliefs in a
42     nonprofessional setting;
43          ▸     prohibits an individual from requiring a religious official or organization to provide
44     services or accommodations for a marriage that is contrary to the official's or
45     organization's religious beliefs;
46          ▸     provides remedies for violations; and
47          ▸     provides a severability clause and revisor instructions.
48     Money Appropriated in this Bill:
49          None
50     Other Special Clauses:
51          This bill provides revisor instructions.
52     Utah Code Sections Affected:
53     AMENDS:
54          17-20-4, as last amended by Laws of Utah 2001, Chapter 241
55          30-1-6, as last amended by Laws of Utah 2010, Chapter 132
56     ENACTS:

57          63G-20-101, Utah Code Annotated 1953
58          63G-20-102, Utah Code Annotated 1953
59          63G-20-103, Utah Code Annotated 1953
60          63G-20-201, Utah Code Annotated 1953
61          63G-20-202, Utah Code Annotated 1953
62          63G-20-203, Utah Code Annotated 1953
63          63G-20-204, Utah Code Annotated 1953
64          63G-20-301, Utah Code Annotated 1953
65          63G-20-302, Utah Code Annotated 1953
66          63G-20-303, Utah Code Annotated 1953
67     Uncodified Material Affected:
68     ENACTS UNCODIFIED MATERIAL
69     

70     Be it enacted by the Legislature of the state of Utah:
71          Section 1. Section 17-20-4 is amended to read:
72          17-20-4. Duties of county clerk.
73          A county clerk shall:
74          (1) establish policies to issue all marriage licenses and keep a register of marriages as
75     provided by law;
76          (2) establish policies to ensure that the county clerk, or a designee of the county clerk
77     who is willing, is available during business hours to solemnize a legal marriage for which a
78     marriage license has been issued;
79          [(2)] (3) execute under the clerk's seal and in the name of and for the county, all deeds
80     and conveyances of all real estate conveyed by the county;
81          [(3)] (4) take and certify acknowledgments and administer oaths;
82          [(4)] (5) keep a fee book as provided by law; and
83          [(5)] (6) take charge of and safely keep the seal of the county, and keep other records
84     and perform other duties as may be prescribed by law.
85          Section 2. Section 30-1-6 is amended to read:
86          30-1-6. Who may solemnize marriages -- Certificate.
87          [(1) Marriages may be solemnized by the following persons only:]

88          (1) Except for a county clerk, or a county clerk's designee, as provided below, the
89     following persons may solemnize a marriage at that person's discretion:
90          (a) ministers, rabbis, or priests of any religious denomination who are:
91          (i) in regular communion with any religious society; and
92          (ii) 18 years of age or older;
93          (b) Native American spiritual advisors;
94          (c) the governor;
95          (d) the lieutenant governor;
96          (e) mayors of municipalities or county executives;
97          (f) a justice, judge, or commissioner of a court of record;
98          (g) a judge of a court not of record of the state;
99          (h) judges or magistrates of the United States;
100          (i) the county clerk of any county in the state[, if the clerk chooses to solemnize
101     marriages] or the county clerk's designee as authorized by Section 17-20-4;
102          (j) the president of the Senate;
103          (k) the speaker of the House of Representatives; or
104          (l) a judge or magistrate who holds office in Utah when retired, under rules set by the
105     Supreme Court.
106          (2) A person authorized under Subsection (1) who solemnizes a marriage shall give to
107     the couple married a certificate of marriage that shows the:
108          (a) name of the county from which the license is issued; and
109          (b) date of the license's issuance.
110          (3) As used in this section:
111          (a) "Judge or magistrate of the United States" means:
112          (i) a justice of the United States Supreme Court;
113          (ii) a judge of a court of appeals;
114          (iii) a judge of a district court;
115          (iv) a judge of any court created by an act of Congress the judges of which are entitled
116     to hold office during good behavior;
117          (v) a judge of a bankruptcy court;
118          (vi) a judge of a tax court; or

119          (vii) a United States magistrate.
120          (b) (i) "Native American spiritual advisor" means a person who:
121          (A) (I) leads, instructs, or facilitates a Native American religious ceremony or service;
122     or
123          (II) provides religious counseling; and
124          (B) is recognized as a spiritual advisor by a federally recognized Native American
125     tribe.
126          (ii) "Native American spiritual advisor" includes a sweat lodge leader, medicine
127     person, traditional religious practitioner, or holy man or woman.
128          (4) [Notwithstanding] Except as provided in Section 17-20-4, and notwithstanding any
129     other provision in law, no person authorized under Subsection (1) to solemnize a marriage may
130     delegate or deputize another person to perform the function of solemnizing a marriage[, except
131     that only employees of the office responsible for the issuance of marriage licenses may be
132     deputized].
133          Section 3. Section 63G-20-101 is enacted to read:
134     
CHAPTER 20. RELIGIOUS PROTECTIONS IN RELATION TO MARRIAGE,

135     
FAMILY, OR SEXUALITY

136     
Part 1. General Provisions

137          63G-20-101. Title.
138          This chapter is known as "Religious Protections in Relation to Marriage, Family, or
139     Sexuality."
140          Section 4. Section 63G-20-102 is enacted to read:
141          63G-20-102. Definitions.
142          As used in this chapter:
143          (1) "Government retaliation" means an action by a state or local government or an
144     action by a state or local government official that:
145          (a) is taken in response to a person's exercise of a protection contained in Section
146     17-20-4, 63G-20-201, or 63G-20-301; and
147          (b) (i) imposes a formal penalty on, fines, disciplines, discriminates against, denies the
148     rights of, denies benefits to, or denies tax-exempt status to a person; or
149          (ii) subjects a person to an injunction or to an administrative claim or proceeding.

150          (2) (a) "Religious official" means an officer or official of a religion, when acting as
151     such.
152          (b) "Religious official" includes an individual designated by the religion as clergy,
153     minister, priest, pastor, rabbi, imam, bishop, stake president, or sealer, when that individual is
154     acting as such.
155          (3) "Religious organization" means:
156          (a) a religious organization, association, educational institution, or society;
157          (b) a religious corporation sole; or
158          (c) any corporation or association constituting a wholly owned subsidiary, affiliate, or
159     agency of any religious organization, association, educational institution, society, or religious
160     corporation sole.
161          (4) "Sexuality" includes legal sexual conduct, legal sexual expression, sexual desires,
162     and the status of a person as male or female.
163          (5) "State or local government" means:
164          (a) a state government entity, agency, or instrumentality; or
165          (b) a local government entity, agency, or instrumentality.
166          (6) "State or local government official" means an officer, employee, or appointee of a
167     state or local government.
168          Section 5. Section 63G-20-103 is enacted to read:
169          63G-20-103. Interpretation.
170          (1) Utah state courts and courts of the United States shall broadly construe this chapter
171     in favor of a broad protection of religious beliefs, exercises, and conscience to the maximum
172     extent permitted by the terms of this chapter and the Utah and United States constitutions.
173          (2) Nothing in this chapter may be construed to limit:
174          (a) the authority of a state or local government or a state or local government official to
175     protect the health, safety, or property of Utah residents through lawful means;
176          (b) the application of Utah's criminal laws;
177          (c) the application of Utah's laws barring discrimination in employment or housing; or
178          (d) the application of Utah's laws barring discrimination in public accommodations,
179     subject to Section 63G-20-201.
180          Section 6. Section 63G-20-201 is enacted to read:

181     
Part 2. Government Entities Prohibited from Certain Burdens on

182     
Religious Beliefs about Marriage, Family, or Sexuality

183          63G-20-201. Provisions governing solemnizing or recognizing a marriage --
184     Prohibition against employment actions.
185          Notwithstanding any other provision of law, a state or local government or a state or
186     local government official may not:
187          (1) require a religious official, when acting as such, or religious organization to
188     solemnize or recognize for ecclesiastical purposes a marriage that is contrary to that religious
189     official's or religious organization's religious beliefs;
190          (2) if the religious official or religious organization is authorized to solemnize a
191     marriage by Section 30-1-6, deny a religious official, when acting as such, or religious
192     organization the authority to legally solemnize a legal marriage based on the religious official's
193     or religious organization's refusal to solemnize any legal marriage that is contrary to the
194     religious official's or religious organization's religious beliefs;
195          (3) require a religious official, when acting as such, or religious organization to provide
196     goods, accommodations, advantages, privileges, services, facilities, or grounds for activities
197     connected with the solemnization or celebration of a marriage that is contrary to that religious
198     official's or religious organization's religious beliefs; or
199          (4) require a religious official, when acting as such, or religious organization to
200     promote marriage through religious programs, counseling, courses, or retreats in a way that is
201     contrary to that religious official's or religious organization's religious beliefs.
202          Section 7. Section 63G-20-202 is enacted to read:
203          63G-20-202. Prohibition on government retaliation.
204          Notwithstanding any other law, a state or local government or a state or local
205     government official may not engage in government retaliation against an individual, a religious
206     official when acting as such, or a religious organization for exercising the protections contained
207     in Section 17-20-4, 63G-20-201, or 63G-20-301.
208          Section 8. Section 63G-20-203 is enacted to read:
209          63G-20-203. Prohibition on licensing disadvantages based on beliefs regarding
210     marriage, family, or sexuality.
211          Notwithstanding any other law, a state or local government, a state or local government

212     official, or another accrediting, certifying, or licensing body may not:
213          (1) deny, revoke, or suspend a licensee's professional or business license based on that
214     licensee's beliefs or the licensee's lawful expressions of those beliefs in a nonprofessional
215     setting, including the licensee's religious beliefs regarding marriage, family, or sexuality; or
216          (2) penalize, discipline, censure, disadvantage, discriminate against, or retaliate against
217     a licensee who holds a professional or business license based on that licensee's beliefs or lawful
218     expressions of those beliefs in a nonprofessional setting, including the licensee's religious
219     beliefs regarding marriage, family, or sexuality.
220          Section 9. Section 63G-20-204 is enacted to read:
221          63G-20-204. Remedies -- Attorney fees and costs.
222          (1) (a) A person aggrieved by a violation of this part may:
223          (i) seek injunctive or other civil relief to require a state or local government or a state
224     or local government official to comply with the requirements of this part; or
225          (ii) seek removal of the local government official for malfeasance in office according
226     to the procedures and requirements of Title 77, Chapter 6, Removal by Judicial Proceedings.
227          (b) The court may award reasonable attorney fees and costs to the prevailing party.
228          (2) (a) A person aggrieved by a violation of this part may bring a civil action in district
229     court.
230          (b) If the plaintiff establishes one or more violations of this part by a preponderance of
231     the evidence, the court:
232          (i) shall grant the plaintiff appropriate legal or equitable relief; and
233          (ii) may award reasonable attorney fees and costs to the prevailing party.
234          Section 10. Section 63G-20-301 is enacted to read:
235     
Part 3. Prohibitions on Certain Burdens on a Religious Official's or Religious

236     
Organization's Religious Beliefs about Marriage, Family, or Sexuality

237          63G-20-301. Prohibitions relating to refusing to solemnize a marriage.
238          Notwithstanding any other provision of law, an individual may not require a religious
239     official, when acting as such, or religious organization to provide goods, accommodations,
240     advantages, privileges, services, facilities, or grounds for activities connected with the
241     solemnization or celebration of a marriage that is contrary to that religious official's or religious
242     organization's religious beliefs about marriage, family, or sexuality.

243          Section 11. Section 63G-20-302 is enacted to read:
244          63G-20-302. Remedies -- Civil action -- Attorney fees and costs.
245          (1) A person aggrieved by a violation of this part may bring a civil action in district
246     court.
247          (2) If the plaintiff establishes one or more violations of this part by a preponderance of
248     the evidence, the court:
249          (a) shall grant the plaintiff appropriate legal or equitable relief; and
250          (b) may award reasonable attorney fees and costs to the prevailing party.
251          Section 12. Section 63G-20-303 is enacted to read:
252          63G-20-303. Severability clause.
253          If any provision of this bill or its application to any person or circumstance is found to
254     be unconstitutional, or in conflict with or superseded by federal law, the remainder of the bill
255     and the application of the provision to other persons or circumstances is not affected by the
256     finding.
257          Section 13. Revisor instructions.
258          It is the intent of the Legislature that, in preparing the Utah Code database for
259     publication, the Office of Legislative Research and General Counsel shall replace the phrases
260     "this bill" and "the bill" in Section 63G-20-303 with the bills designated chapter number in the
261     2015 Laws of Utah.