Reference Title: adoption by aunts and uncles

AN ACT
AMENDING TITLE 41, CHAPTER 9, ARIZONA REVISED STATUTES, BY ADDING ARTICLE 9; RELATING TO RELIGIOUS FREE EXERCISE.

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 9, to read:

article 9. Free exercise of religion

41-1493 . Definitions

IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:

1. "DEMONSTRATES" MEANS MEETS THE BURDENS OF GOING FORWARD WITH THE EVIDENCE AND OF PERSUASION.

2. "EXERCISE OF RELIGION" MEANS THE ABILITY TO ACT OR REFUSAL TO ACT IN A MANNER SUBSTANTIALLY MOTIVATED BY A RELIGIOUS BELIEF, WHETHER OR NOT THE EXERCISE IS COMPULSORY OR CENTRAL TO A LARGER SYSTEM OF RELIGIOUS BELIEF.

3. "GOVERNMENT" INCLUDES THIS STATE AND ANY AGENCY OR POLITICAL SUBDIVISION OF THIS STATE.

4. "POLITICAL SUBDIVISION" INCLUDES ANY COUNTY, CITY, INCLUDING A CHARTER CITY, TOWN, SCHOOL DISTRICT, MUNICIPAL CORPORATION OR SPECIAL DISTRICT, ANY BOARD, COMMISSION OR AGENCY OF A COUNTY, CITY, INCLUDING A CHARTER CITY, TOWN, SCHOOL DISTRICT, MUNICIPAL CORPORATION OR SPECIAL DISTRICT OR ANY OTHER LOCAL PUBLIC AGENCY.

41-1493.01 . Free exercise of religion protected

A. FREE EXERCISE OF RELIGION IS A FUNDAMENTAL RIGHT THAT APPLIES IN THIS STATE EVEN IF LAWS, RULES OR OTHER GOVERNMENT ACTIONS ARE FACIALLY NEUTRAL.

B. EXCEPT AS PROVIDED IN SUBSECTION C, GOVERNMENT SHALL NOT SUBSTANTIALLY BURDEN A PERSON'S EXERCISE OF RELIGION EVEN IF THE BURDEN RESULTS FROM A RULE OF GENERAL APPLICABILITY.

C. GOVERNMENT MAY SUBSTANTIALLY BURDEN A PERSON'S EXERCISE OF RELIGION ONLY IF IT DEMONSTRATES THAT APPLICATION OF THE BURDEN TO THE PERSON IS BOTH:

1. IN FURTHERANCE OF A COMPELLING GOVERNMENTAL INTEREST.

2. THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT COMPELLING GOVERNMENTAL INTEREST.

D. A PERSON WHOSE RELIGIOUS EXERCISE IS BURDENED IN VIOLATION OF THIS SECTION MAY ASSERT THAT VIOLATION AS A CLAIM OR DEFENSE IN A JUDICIAL PROCEEDING AND OBTAIN APPROPRIATE RELIEF AGAINST A GOVERNMENT. A PARTY WHO PREVAILS IN ANY ACTION TO ENFORCE THIS ARTICLE AGAINST A GOVERNMENT SHALL RECOVER ATTORNEY FEES AND COSTS.

E. IN THIS SECTION, THE TERM SUBSTANTIALLY BURDEN IS INTENDED SOLELY TO ENSURE THAT THIS ARTICLE IS NOT TRIGGERED BY TRIVIAL, TECHNICAL OR DE MINIMIS INFRACTIONS.

41-1493.02 . Applicability

A. THIS ARTICLE APPLIES TO ALL STATE AND LOCAL LAWS AND ORDINANCES AND THE IMPLEMENTATION OF THOSE LAWS AND ORDINANCES, WHETHER STATUTORY OR OTHERWISE, AND WHETHER ADOPTED BEFORE OR AFTER THE EFFECTIVE DATE OF THIS ARTICLE.

B. STATE LAWS THAT ARE ADOPTED AFTER THE EFFECTIVE DATE OF THIS ARTICLE ARE SUBJECT TO THIS ARTICLE UNLESS THE LAW EXPLICITLY EXCLUDES APPLICATION BY REFERENCE TO THIS ARTICLE.

C. THIS ARTICLE SHALL NOT BE CONSTRUED TO AUTHORIZE ANY GOVERNMENT TO BURDEN ANY RELIGIOUS BELIEF.

Sec. 2. Legislative findings and intent

A. The legislature finds that:

1. The Constitution of Arizona recognizes the free exercise of religion.

2. Laws that are facially neutral toward religion, as well as laws intended to interfere with religious exercise, may burden religious exercise.

3. Governments should not substantially burden religious exercise without compelling justification.

4. This state has independent authority to protect the free exercise of religion by principles that are separate from, complementary to and more expansive than the first amendment of the United States Constitution.

5. Under its police power, the legislature may establish statutory protections that codify and supplement rights guaranteed by the Constitution of Arizona.

6. The compelling interest test, as set forth in the federal cases of Wisconsin v. Yoder, 406 U.S. 205 (1972) and Sherbert v. Verner, 374 U.S. 398 (1963), is a workable test for striking sensible balances between religious liberty and competing government interests.

Sec. 3. Severability

If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

APPROVED BY THE GOVERNOR MAY 19, 1999.

FILED IN THE OFFICE OF THE SECRETARY OF STATE MAY 19, 1999.