REFERENCE TITLE: religious services; essential services





State of Arizona

House of Representatives

Fifty-fifth Legislature

First Regular Session





HB 2648


Introduced by

Representatives Toma: Barton, Biasiucci, Blackman, Bolick, Bowers, Burges, Carroll, Chaplik, Cobb, Cook, Dunn, Fillmore, Finchem, Grantham, Griffin, Hoffman, John, Kaiser, Kavanagh, Nguyen, Nutt, Osborne, Parker, Payne, Pingerelli, Roberts, Weninger, Wilmeth, Senators Barto, Boyer, Gray, Livingston





Amending Title 41, chapter 9, Arizona Revised Statutes, by adding article 10; relating to civil rights.





Be it enacted by the Legislature of the State of Arizona:

Section 1.  Title 41, chapter 9, Arizona Revised Statutes, is amended by adding article 10, to read:


START_STATUTE41-1494.  Definitions

In this article, unless the context otherwise requires:

1.  "Discriminatory action" means any action taken by State government to:

(a)  Alter in any way the tax treatment of, or cause any tax, penalty or payment to be assessed against a religious organization, or deny, delay, revoke or otherwise make unavailable an exemption from taxation for a religious organization.

(b)  Disallow, deny or otherwise make unavailable a deduction for state tax purposes of any charitable contribution made to or by a religious organization.

(c)  Impose, levy or assess a monetary fine, fee, civil or criminal penalty, damages award or injunction against a religious organization.

(d)  Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any:

(i)  State grant, contract, subcontract, cooperative agreement, guarantee, loan, scholarship or other similar benefit from or to a religious organization.

(ii)  Entitlement or benefit under a state benefit program from or to a religious organization.

(iii)  License, certification, accreditation, recognition or other similar benefit, position or status from or to any religious organization.

2.  "Religious organization" means:

(a)  A house of worship, including a church, synagogue, shrine, mosque and temple.

(b)  A religious group, corporation, association, educational institution, ministry, order, society or similar entity, regardless of whether it is integrated or affiliated with a church or other house of worship.

(c)  An officer, owner, employee, manager, religious leader, clergyperson or minister of an entity or organization described in this paragraph.

3.  "Religious services" means a meeting, gathering or assembly of two or more persons organized by a religious organization for the purpose of worship, teaching, training, providing educational services, conducting religious rituals or other activities that are deemed necessary by the religious organization for the exercise of religion.

4.  "State government" means:

(a)  this State or a political subdivision of this State.

(b)  Any agency of this State or a political subdivision of this State, including a department, bureau, board, commission, council, court or public institution of higher education.

(c)  Any person acting under color of state law.

(d)  Any private person suing under or attempting to enforce a law, rule or regulation adopted by this State or a political subdivision of this State.

5.  "State of emergency" has the same meaning prescribed in section 26‑301. END_STATUTE

START_STATUTE41-1494.01.  Religious services; essential service

A.  During a state of emergency, religious services are declared an essential service and are deemed necessary and vital to the health and welfare of the public.

B.  State government shall allow a religious organization to continue operating and to engage in religious services during a state of emergency to the same or greater extent than other organizations or businesses that provide essential services and that are necessary and vital to the health and welfare of the public are allowed to operate.

c.  This section does not prohibit state government from requiring religious organizations to comply with neutral health, safety or occupancy requirements that are issued by state government or the federal government and that apply to all organizations and businesses that provide essential services. State government may not enforce any health, safety or occupancy requirement that imposes a substantial burden on a religious service unless state government demonstrates that applying the burden to the religious service in that particular instance is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. END_STATUTE

START_STATUTE41-1494.02.  Protections against government discrimination

state government may not take any discriminatory action against a religious organization wholly or partially on the basis that the organization:

1.  Is religious.

2.  Operates or seeks to operate during a state of emergency.

3.  Engages in the exercise of religion as protected under the first amendment of the United States Constitution. END_STATUTE

START_STATUTE41-1494.03.  Claim or defense against state action

A.  A religious organization may assert a violation of this article as a claim against state government in any judicial or administrative proceeding or as a defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of state government, any private person or any other party.

B.  Notwithstanding any other law, an action under this article may be commenced, and relief may be granted, in a court of this state without regard to whether the religious organization commencing the action has sought or exhausted administrative remedies. END_STATUTE

START_STATUTE41-1494.04.  Remedies

A.  A religious organization that successfully asserts a claim or defense under this article against state government may recover:

1.  Declaratory relief.

2.  Injunctive relief to prevent or remedy a violation of this article or the effects of such a violation.

3.  Compensatory damages for pecuniary and nonpecuniary losses.

4.  Reasonable attorney fees and costs.

5.  Any other appropriate relief.

B.  A religious organization that successfully asserts a claim or defense under this article against a private person not acting under color of state law may only recover declaratory relief and injunctive relief.END_STATUTE

START_STATUTE41-1494.05.  Immunity waived

Sovereign, governmental and qualified immunities to suit and from liability are waived and abolished to the extent of liability established by this article, and a religious organization may sue state government, except state courts, for damages allowed by section 41‑1494.04. END_STATUTE

START_STATUTE41-1494.06.  Rules of construction

A.  This article shall be construed in favor of a broad protection of the free exercise of religion.

B.  The protection of the free exercise of religion afforded by this article is in addition to the protections provided under federal law, state law and the constitutions of the United States and ARizona. This article does not preempt or repeal any state or local law that is equally or more protective of the free exercise of religion. This article does not narrow the meaning or application of any state or local law protecting the free exercise of religion.

C.  This article applies to, and in cases of conflict supersedes, all state statutes that impinge on the free exercise of religion, unless a conflicting statute is expressly made exempt from the application of this article. This article also applies to, and in cases of conflict supersedes, any ordinance, rule, order, opinion, decision, practice or other exercise of state government's authority that impinges on the free exercise of religion.

D.  If any provision of this article or any application of the provision to any particular person or circumstance is held to be invalid under law, the remainder of this article and the application of its provisions to any other person or circumstance may not be affected. END_STATUTE

START_STATUTE41-1494.07.  Time limit

A religious organization must bring an action to assert a claim under this article not later than two years after the date that the person knew or should have known that a discriminatory action or other violation of this article was taken against that religious organization. END_STATUTE

Sec. 2.  Legislative findings

The Legislature finds:

1.  Religion provides extensive benefits to our country both in meeting the spiritual needs of our populace and also in supporting social services, health care and economic activity.

2.  Religion contributes $1.2 trillion annually to the nation's economy and society. This includes charitable activities, health care, educational services and millions of volunteer hours in programs that help the poor, help individuals struggling with addiction or mental illness and provide job training. "Congregations, businesses inspired by faith, faith-based charities and institutions not only build communities and families but also strengthen our economy in every town and city of the country." Brian J. Grim & Melissa E. Grim, The Socio-economic Contribution of Religion to American Society: An Empirical Analysis, 12 Interdisc, J. of Res. On Religion (2016).

3.  "The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly." Espinoza v. Montana Dep't of Revenue, 140 S. Ct. 2246, 2276 (2020) (Gorsuch, J., concurring).

4.  The United States Supreme Court has "long recognized the importance of protecting religious actions, not just religious status." Id. "[T]he First Amendment protects the 'freedom to act' as well as the 'freedom to believe.'" Id. (quoting Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)).

5.  The Free Exercise Clause of the United States Constitution guarantees religious believers, at a bare minimum, equal treatment under the law. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542 (1993).

6.  "What benefits the government decides to give, whether meager or munificent, it must give without discrimination against religious conduct." Espinoza, 140 S. Ct. at 2277.

7.  The government violates the Free Exercise Clause whenever it "conditions receipt of an important benefit upon conduct proscribed by a religious faith, or . . . denies such benefit because of conduct mandated by a religious belief, thereby putting substantial pressure on an adherent to modify his behavior to violate his beliefs." Thomas v. Review Bd. of Ind. Employment Security Div., 450 U.S. 707, 717-18 (1981).

8.  "The First Amendment does not allow our leaders to decide which rights to honor and which to ignore." Spell v. Edwards, 962 F.3d 175, 183 (5th Cir. 2020) (Ho, J., concurring).

9.  "Government does not have carte blanche, even in a pandemic, to pick and choose which First Amendment rights are 'open' and which remain 'closed.'" Id. At 181.

10.  Government officials may not "afford a greater degree of protection to commercial than to noncommercial speech," Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513 (1981) (plurality opinion), or prefer the transmission of secular views over religious ones, Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 830-31 (1995).

11.  The government may not "devalue[] religious reasons for [congregating] by judging them to be of lesser import than nonreligious reasons." Church of the Lukumi Bablu Aye, 508 U.S. at 537.

12.  The government may not permit "life-sustaining” operations to continue during a state of emergency without also permitting "soul‑sustaining" operations such as religious services to continue, especially when the religious services "adhere to all the public health guidelines required of the other services." Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020).

13.  Dr. Timothy P. Flanigan, Professor of Medicine at the Warren Alpert Medical School of Brown University, provided sworn testimony in federal court that religious services pose no greater threat to public health than other gatherings where CDC guidelines are followed. Flanigan Expert Decl., Calvary Chapel Dayton Valley v. Sisolak, No. 3:20-cv-00303, Dkt. 38-31 (D. Nev. June 6, 2020). Dr. Flanigan concluded:

(a)  "There is no scientific or medical reason that a religious service that follows the guidelines issued by the CDC would pose a more significant risk of spreading SARS-CoV-2 than gatherings or interactions at other establishments or institutions." Id. ⁋ 27.

(b)  "[T]here is no scientific or medical reason that people could not follow the CDC guidance just as carefully in a religious setting as they could in a non-religious setting. In fact, my experience has been that individuals in religious settings are observant of the rules established by their houses of worship." Id. ⁋ 32.

(c)  "[S]o long as the CDC guidelines are followed, there is no scientific or medical reason to prohibit religious services but not prohibit other activities or gatherings, nor is there any scientific or medical reason to allow certain activities or gatherings while not allowing religious services." Id. ⁋ 33.

(d)  "[S]o long as the CDC guidelines are followed, there is no scientific or medical reason to limit the number of persons at a religious gathering while not imposing the same restrictions on shopping malls, big box stores, restaurants or bars, gyms or fitness centers, barbershops or hair salons, movie theaters, museums, water parks, offices, workplace meetings, gambling casinos, factories, supermarkets, farmer's markets, retail stores, demonstrations, or other places where individuals interact, gather, or share space." Id. ⁋ 34.