MISSISSIPPI LEGISLATURE REGULAR SESSION 2016 By: Representatives Gunn, Arnold, Bounds, Carpenter, Gipson, Shirley, Boyd, Eubanks To: Judiciary B HOUSE BILL NO. 1523 (As Passed the House) 1 2 3 4 5 6 7 8 9 10 AN ACT TO CREATE THE "PROTECTING FREEDOM OF CONSCIENCE FROM GOVERNMENT DISCRIMINATION ACT"; TO PROVIDE CERTAIN PROTECTIONS REGARDING A SINCERELY HELD RELIGIOUS BELIEF OR MORAL CONVICTION FOR PERSONS, RELIGIOUS ORGANIZATIONS AND PRIVATE ASSOCIATIONS; TO DEFINE A DISCRIMINATORY ACTION FOR PURPOSES OF THIS ACT; TO PROVIDE THAT A PERSON MAY ASSERT A VIOLATION OF THIS ACT AS A CLAIM AGAINST THE GOVERNMENT; TO PROVIDE CERTAIN REMEDIES; TO REQUIRE A PERSON BRINGING A CLAIM UNDER THIS ACT TO DO SO NOT LATER THAN TWO YEARS AFTER THE DISCRIMINATORY ACTION WAS TAKEN; TO PROVIDE CERTAIN DEFINITIONS; AND FOR RELATED PURPOSES. 11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI: 12 SECTION 1. This act shall be known and may be cited as the 13 "Protecting Freedom of Conscience from Government Discrimination 14 Act." 15 SECTION 2. The sincerely held religious beliefs or moral 16 convictions protected by this act are the belief or conviction 17 that: 18 (a) 19 one man and one woman; 20 (b) 21 marriage; and H. B. No. 1523 16/HR43/R1128PH PAGE 1 (GT\EW) Marriage is or should be recognized as the union of Sexual relations are properly reserved to such a *HR43/R1128PH* ~ OFFICIAL ~ G1/2 22 (c) Male (man) or female (woman) refer to an 23 individual’s  immutable  biological  sex  as  objectively  determined  by   24 anatomy and genetics at time of birth. 25 SECTION 3. (1) The state government shall not take any 26 discriminatory action against a religious organization wholly or 27 partially on the basis that such organization: 28 (a) Solemnizes or declines to solemnize any marriage, 29 or provides or declines to provide services, accommodations, 30 facilities, goods or privileges for a purpose related to the 31 solemnization, formation, celebration or recognition of any 32 marriage, based upon or in a manner consistent with a sincerely 33 held religious belief or moral conviction described in Section 2 34 of this act; 35 (b) Makes any employment-related decision, including 36 but not limited to, the decision whether or not to hire, terminate 37 or discipline an individual whose conduct or religious beliefs are 38 inconsistent with those of the religious organization, based upon 39 or in a manner consistent with a sincerely held religious belief 40 or moral conviction described in Section 2 of this act; or 41 (c) Makes any decision concerning the sale, rental, 42 occupancy of, or terms and conditions of occupying a dwelling or 43 other housing under its control, based upon or in a manner 44 consistent with a sincerely held religious belief or moral 45 conviction described in Section 2 of this act. H. B. No. 1523 16/HR43/R1128PH PAGE 2 (GT\EW) *HR43/R1128PH* ~ OFFICIAL ~ 46 (2) The state government shall not take any discriminatory 47 action against a religious organization that advertises, provides 48 or facilitates adoption or foster care, wholly or partially on the 49 basis that such organization has provided or declined to provide 50 any adoption or foster care service, or related service, based 51 upon or in a manner consistent with a sincerely held religious 52 belief or moral conviction described in Section 2 of this act. 53 (3) The state government shall not take any discriminatory 54 action against a person who the state grants custody of a foster 55 or adoptive child, or who seeks from the state custody of a foster 56 or adoptive child, wholly or partially on the basis that the 57 person guides, instructs or raises a child, or intends to guide, 58 instruct, or raise a child based upon or in a manner consistent 59 with a sincerely held religious belief or moral conviction 60 described in Section 2 of this act. 61 (4) The state government shall not take any discriminatory 62 action against a person wholly or partially on the basis that the 63 person declines to participate in the provision of treatments, 64 counseling, or surgeries related to sex reassignment or gender 65 identity transitioning or declines to participate in the provision 66 of psychological, counseling, or fertility services based upon a 67 sincerely held religious belief or moral conviction described in 68 Section 2 of this act. 69 to allow any person to deny visitation, recognition of a 70 designated representative for health care decision-making, or H. B. No. 1523 16/HR43/R1128PH PAGE 3 (GT\EW) This subsection (4) shall not be construed *HR43/R1128PH* ~ OFFICIAL ~ 71 emergency medical treatment necessary to cure an illness or injury 72 as required by law. 73 (5) The state government shall not take any discriminatory 74 action against a person wholly or partially on the basis that the 75 person has provided or declined to provide the following services, 76 accommodations, facilities, goods, or privileges for a purpose 77 related to the solemnization, formation, celebration, or 78 recognition of any marriage, based upon or in a manner consistent 79 with a sincerely held religious belief or moral conviction 80 described in Section 2 of this act: 81 (a) Photography, poetry, videography, disc-jockey 82 services, wedding planning, printing, publishing or similar 83 marriage-related goods or services; or 84 (b) Floral arrangements, dress making, cake or pastry 85 artistry, assembly-hall or other wedding-venue rentals, limousine 86 or other car-service rentals, jewelry sales and services, or 87 similar marriage-related services, accommodations, facilities or 88 goods. 89 (6) The state government shall not take any discriminatory 90 action against a person wholly or partially on the basis that the 91 person establishes sex-specific standards or policies concerning 92 employee or student dress or grooming, or concerning access to 93 restrooms, spas, baths, showers, dressing rooms, locker rooms, or 94 other intimate facilities or settings, based upon or in a manner H. B. No. 1523 16/HR43/R1128PH PAGE 4 (GT\EW) *HR43/R1128PH* ~ OFFICIAL ~ 95 consistent with a sincerely held religious belief or moral 96 conviction described in Section 2 of this act. 97 (7) The state government shall not take any discriminatory 98 action against a state employee wholly or partially on the basis 99 that such employee lawfully speaks or engages in expressive 100 conduct based upon or in a manner consistent with a sincerely held 101 religious belief or moral conviction described in Section 2 of 102 this act, so long as: 103 (a) If the employee's speech or expressive conduct 104 occurs in the workplace, that speech or expressive conduct is 105 consistent with the time, place, manner and frequency of any other 106 expression of a religious, political, or moral belief or 107 conviction allowed; or 108 (b) If the employee's speech or expressive conduct 109 occurs outside the workplace, that speech or expressive conduct is 110 in the employee's personal capacity and outside the course of 111 performing work duties. 112 (8) (a) Any person employed or acting on behalf of the 113 state government who has authority to authorize or license 114 marriages, including, but not limited to, clerks, registers of 115 deeds or their deputies, may seek recusal from authorizing or 116 licensing lawful marriages based upon or in a manner consistent 117 with a sincerely held religious belief or moral conviction 118 described in Section 2 of this act. 119 recusal shall provide prior written notice to the State Registrar H. B. No. 1523 16/HR43/R1128PH PAGE 5 (GT\EW) *HR43/R1128PH* Any person making such ~ OFFICIAL ~ 120 of Vital Records who shall keep a record of such recusal, and the 121 state government shall not take any discriminatory action against 122 that person wholly or partially on the basis of such recusal. 123 person who is recusing himself or herself shall take all necessary 124 steps to ensure that the authorization and licensing of any 125 legally valid marriage is not impeded or delayed as a result of 126 any recusal. 127 (b) The Any person employed or acting on behalf of the 128 state government who has authority to perform or solemnize 129 marriages, including, but not limited to, judges, magistrates, 130 justices of the peace or their deputies, may seek recusal from 131 performing or solemnizing lawful marriages based upon or in a 132 manner consistent with a sincerely held religious belief or moral 133 conviction described in Section 2 of this act. 134 such recusal shall provide prior written notice to the 135 Administrative Office of Courts, and the state government shall 136 not take any discriminatory action against that person wholly or 137 partially on the basis of such recusal. 138 of Courts shall take all necessary steps to ensure that the 139 performance or solemnization of any legally valid marriage is not 140 impeded or delayed as a result of any recusal. 141 142 143 144 SECTION 4. (1) Any person making The Administrative Office As used in this act, discriminatory action includes any action taken by the state government to: (a) Alter in any way the tax treatment of, or cause any tax, penalty, or payment to be assessed against, or deny, delay, H. B. No. 1523 16/HR43/R1128PH PAGE 6 (GT\EW) *HR43/R1128PH* ~ OFFICIAL ~ 145 revoke, or otherwise make unavailable an exemption from taxation 146 of any person referred to in Section 3 of this act; 147 (b) Disallow, deny or otherwise make unavailable a 148 deduction for state tax purposes of any charitable contribution 149 made to or by such person; 150 (c) Withhold, reduce, exclude, terminate, materially 151 alter the terms or conditions of, or otherwise make unavailable or 152 deny any state grant, contract, subcontract, cooperative 153 agreement, guarantee, loan, scholarship, or other similar benefit 154 from or to such person; 155 (d) Withhold, reduce, exclude, terminate, materially 156 alter the terms or conditions of, or otherwise make unavailable or 157 deny any entitlement or benefit under a state benefit program from 158 or to such person; 159 (e) Impose, levy or assess a monetary fine, fee, 160 penalty or injunction; 161 (f) Withhold, reduce, exclude, terminate, materially 162 alter the terms or conditions of, or otherwise make unavailable or 163 deny any license, certification, accreditation, custody award or 164 agreement, diploma, grade, recognition, or other similar benefit, 165 position, or status from or to any person; or 166 (g) Refuse to hire or promote, force to resign, fire, 167 demote, sanction, discipline, materially alter the terms or 168 conditions of employment, or retaliate or take other adverse H. B. No. 1523 16/HR43/R1128PH PAGE 7 (GT\EW) *HR43/R1128PH* ~ OFFICIAL ~ 169 employment action against a person employed or commissioned by the 170 state government. 171 (2) The state government shall consider accredited, licensed 172 or certified any person that would otherwise be accredited, 173 licensed or certified, respectively, for any purposes under state 174 law but for a determination against such person wholly or 175 partially on the basis that the person believes, speaks or acts in 176 accordance with a sincerely held religious belief or moral 177 conviction described in Section 2 of this act. 178 SECTION 5. (1) A person may assert a violation of this act 179 as a claim against the state government in any judicial or 180 administrative proceeding or as defense in any judicial or 181 administrative proceeding without regard to whether the proceeding 182 is brought by or in the name of the state government, any private 183 person or any other party. 184 (2) An action under this act may be commenced, and relief 185 may be granted, in a court of the state without regard to whether 186 the person commencing the action has sought or exhausted available 187 administrative remedies. 188 (3) Violations of this act which are properly governed by 189 Chapter 46, Title 11, Mississippi Code of 1972, shall be brought 190 in accordance with that chapter. 191 192 193 SECTION 6. Any person who successfully asserts a claim or defense under this act may recover: (a) H. B. No. 1523 16/HR43/R1128PH PAGE 8 (GT\EW) Declaratory relief; *HR43/R1128PH* ~ OFFICIAL ~ 194 195 (b) Injunctive relief to prevent or remedy a violation of this act or the effects of such a violation; 196 (c) Compensatory damages for pecuniary and nonpecuniary 198 (d) Reasonable attorneys' fees and costs; and 199 (e) Any other appropriate relief except only 197 losses; 200 declaratory relief and injunctive relief shall be available 201 against a private person not acting under color of state law upon 202 a successful assertion of a claim or defense under this act. 203 SECTION 7. A person must bring an action to assert a claim 204 under this act not later than two (2) years after the date that 205 the person knew or should have known that a discriminatory action 206 was taken against that person. 207 SECTION 8. (1) Sovereign, governmental and qualified 208 immunities to suit and from liability are waived and abolished to 209 the extent of liability created by Section 6 of this act, and a 210 person may sue the state government, except state courts, for 211 damages allowed by Section 6 of this act. 212 (2) Notwithstanding subsection (2) of this section, this 213 section does not waive or abolish sovereign immunity to suit and 214 from liability under the Eleventh Amendment to the United States 215 Constitution. 216 217 SECTION 9. (1) This act shall be construed in favor of a broad protection of free exercise of religious beliefs and moral H. B. No. 1523 16/HR43/R1128PH PAGE 9 (GT\EW) *HR43/R1128PH* ~ OFFICIAL ~ 218 convictions, to the maximum extent permitted by the state and 219 federal constitutions. 220 (2) The protection of free exercise of religious beliefs and 221 moral convictions afforded by this act are in addition to the 222 protections provided under federal law, state law, and the state 223 and federal constitutions. 224 to preempt or repeal any state or local law that is equally or 225 more protective of free exercise of religious beliefs or moral 226 convictions. 227 meaning or application of any state or local law protecting free 228 exercise of religious beliefs or moral convictions. 229 this act shall be construed to prevent the state government from 230 providing, either directly or through an individual or entity not 231 seeking protection under this act, any benefit or service 232 authorized under state law. 233 (3) Nothing in this act shall be construed Nothing in this act shall be construed to narrow the Nothing in This act applies to, and in cases of conflict 234 supersedes, each statute of the state that impinges upon the free 235 exercise of religious beliefs and moral convictions protected by 236 this act, unless a conflicting statute is expressly made exempt 237 from the application of this act. 238 in cases of conflict supersedes, any ordinance, rule, regulation, 239 order, opinion, decision, practice or other exercise of the state 240 government's authority that impinges upon the free exercise of 241 religious beliefs or moral convictions protected by this act. H. B. No. 1523 16/HR43/R1128PH PAGE 10 (GT\EW) *HR43/R1128PH* This act also applies to, and ~ OFFICIAL ~ 242 SECTION 10. As used in Section 1 through 9 of this act, the 243 following words and phrases shall have the meanings ascribed in 244 this section unless the context clearly indicates otherwise: 245 (1) "State benefit program" means any program administered 246 or funded by the state, or by any agent on behalf of the state, 247 providing cash, payments, grants, contracts, loans or in-kind 248 assistance. 249 (2) "State government" means: 250 (a) 251 of the state; 252 (b) The State of Mississippi or a political subdivision Any agency of the state or of a political 253 subdivision of the state, including a department, bureau, board, 254 commission, council, court or public institution of higher 255 education; 256 (c) Any person acting under color of state law; and 257 (d) Any private party or third party suing under or 258 enforcing a law, ordinance, rule or regulation of the state or 259 political subdivision of the state. 260 261 (3) "Person" means: (a) A natural person, in his or her individual 262 capacity, regardless of religious affiliation or lack thereof, or 263 in his or her capacity as a member, officer, owner, volunteer, 264 employee, manager, religious leader, clergy or minister of any 265 entity described in this section; 266 (b) H. B. No. 1523 16/HR43/R1128PH PAGE 11 (GT\EW) A religious organization; *HR43/R1128PH* ~ OFFICIAL ~ 267 (c) A sole proprietorship, or closely held company, 268 partnership, association, organization, firm, corporation, 269 cooperative, trust, society or other closely held entity operating 270 with a sincerely held religious belief or moral conviction 271 described in this act; or 272 (d) Cooperatives, ventures or enterprises comprised of 273 two (2) or more individuals or entities described in this 274 subsection. 275 (4) 276 277 "Religious organization" means: (a) A house of worship, including, but not limited to, churches, synagogues, shrines, mosques and temples; 278 (b) A religious group, corporation, association, school 279 or educational institution, ministry, order, society or similar 280 entity, regardless of whether it is integrated or affiliated with 281 a church or other house of worship; and 282 (c) An officer, owner, employee, manager, religious 283 leader, clergy or minister of an entity or organization described 284 in this subsection (4). 285 (5) "Adoption or foster care" or "adoption or foster care 286 service" means social services provided to or on behalf of 287 children, including: 288 (a) Assisting abused or neglected children; 289 (b) Teaching children and parents occupational, 290 291 homemaking and other domestic skills; (c) H. B. No. 1523 16/HR43/R1128PH PAGE 12 (GT\EW) Promoting foster parenting; *HR43/R1128PH* ~ OFFICIAL ~ 292 293 (d) Providing foster homes, residential care, group homes or temporary group shelters for children; 294 (e) Recruiting foster parents; 295 (f) Placing children in foster homes; 296 (g) Licensing foster homes; 297 (h) Promoting adoption or recruiting adoptive parents; 298 (i) Assisting adoptions or supporting adoptive 300 (j) Performing or assisting home studies; 301 (k) Assisting kinship guardianships or kinship 299 302 families; caregivers; 303 (l) Providing family preservation services; 304 (m) Providing family support services; and 305 (n) Providing temporary family reunification services. 306 307 308 309 SECTION 11. The provisions of Sections 1 through 9 of this act shall be excluded from the application of Section 11-61-1. SECTION 12. This act shall take effect and be in force from and after July 1, 2016. H. B. No. 1523 16/HR43/R1128PH PAGE 13 (GT\EW) ~ OFFICIAL ~ ST: The "Protecting Freedom of Conscience from Government Discrimination Act"; create. *HR43/R1128PH*