42 U.S.C. § 2000bb — Congressional findings and declaration

Page 5319 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2000bb (2) a requirement that the least intrusive method or means of obtaining such materials be used which do not substantially jeopardize the availability or usefulness of the materials sought to be obtained; (3) a recognition of special concern for pri- vacy interests in cases in which a search or seizure for such documents would intrude upon a known confidential relationship such as that which may exist between clergyman and pa- rishioner; lawyer and client; or doctor and pa- tient; and (4) a requirement that an application for a warrant to conduct a search governed by this subchapter be approved by an attorney for the government, except that in an emergency situ- ation the application may be approved by an- other appropriate supervisory official if within 24 hours of such emergency the appropriate United States Attorney is notified. (b) Use of search warrants; reports to Congress The Attorney General shall collect and com- pile information on, and report annually to the Committees on the Judiciary of the Senate and the House of Representatives on the use of search warrants by Federal officers and employ- ees for documentary materials described in sub- section (a)(3). (Pub. L. 96–440, title II, § 201, Oct. 13, 1980, 94 Stat. 1882.) § 2000aa–12. Binding nature of guidelines; dis- ciplinary actions for violations; legal pro- ceedings for non-compliance prohibited Guidelines issued by the Attorney General under this subchapter shall have the full force and effect of Department of Justice regulations and any violation of these guidelines shall make the employee or officer involved subject to ap- propriate administrative disciplinary action. However, an issue relating to the compliance, or the failure to comply, with guidelines issued pursuant to this subchapter may not be liti- gated, and a court may not entertain such an issue as the basis for the suppression or exclu- sion of evidence. (Pub. L. 96–440, title II, § 202, Oct. 13, 1980, 94 Stat. 1883.) CHAPTER 21B—RELIGIOUS FREEDOM RESTORATION Sec. 2000bb. Congressional findings and declaration of purposes. 2000bb–1. Free exercise of religion protected. 2000bb–2. Definitions. 2000bb–3. Applicability. 2000bb–4. Establishment clause unaffected. § 2000bb. Congressional findings and declaration of purposes (a) Findings The Congress finds that— (1) the framers of the Constitution, recog- nizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution; (2) laws ‘‘neutral’’ toward religion may bur- den religious exercise as surely as laws in- tended to interfere with religious exercise; (3) governments should not substantially burden religious exercise without compelling justification; (4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the govern- ment justify burdens on religious exercise im- posed by laws neutral toward religion; and (5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between re- ligious liberty and competing prior govern- mental interests. (b) Purposes The purposes of this chapter are— (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is sub- stantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially bur- dened by government. (Pub. L. 103–141, § 2, Nov. 16, 1993, 107 Stat. 1488.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 103–141, Nov. 16, 1993, 107 Stat. 1488, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note below and Tables. CONSTITUTIONALITY For information regarding the constitutionality of this section, see the Table of Laws Held Unconstitu- tional in Whole or in Part by the Supreme Court on the Constitution Annotated website, constitu- tion.congress.gov. Statutory Notes and Related Subsidiaries SHORT TITLE Pub. L. 103–141, § 1, Nov. 16, 1993, 107 Stat. 1488, pro- vided that: ‘‘This Act [enacting this chapter and amending section 1988 of this title and section 504 of Title 5, Government Organization and Employees] may be cited as the ‘Religious Freedom Restoration Act of 1993’.’’ Executive Documents EX. ORD. NO. 13798. PROMOTING FREE SPEECH AND RELIGIOUS LIBERTY Ex. Ord. No. 13798, May 4, 2017, 82 F.R. 21675, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to guide the executive branch in for- mulating and implementing policies with implications for the religious liberty of persons and organizations in America, and to further compliance with the Constitu- tion and with applicable statutes and Presidential Di- rectives, it is hereby ordered as follows: SECTION 1. Policy. It shall be the policy of the execu- tive branch to vigorously enforce Federal law’s robust protections for religious freedom. The Founders envi- sioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government. For that reason, the United States Constitution enshrines and protects the Page 5320 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2000bb–1 fundamental right to religious liberty as Americans’ first freedom. Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue inter- ference by the Federal Government. The executive branch will honor and enforce those protections. SEC. 2. Respecting Religious and Political Speech. All ex- ecutive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent per- mitted by law, respect and protect the freedom of per- sons and organizations to engage in religious and polit- ical speech. In particular, the Secretary of the Treas- ury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any ad- verse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the De- partment of the Treasury. As used in this section, the term ‘‘adverse action’’ means the imposition of any tax or tax penalty; the delay or denial of tax-exempt sta- tus; the disallowance of tax deductions for contribu- tions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit. SEC. 3. Conscience Protections with Respect to Preven- tive-Care Mandate. The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regula- tions, consistent with applicable law, to address con- science-based objections to the preventive-care man- date promulgated under section 300gg–13(a)(4) of title 42, United States Code. SEC. 4. Religious Liberty Guidance. In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law. SEC. 5. Severability. If any provision of this order, or the application of any provision to any individual or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other individuals or circumstances shall not be af- fected thereby. SEC. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. DONALD J. TRUMP. § 2000bb–1. Free exercise of religion protected (a) In general Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, ex- cept as provided in subsection (b). (b) Exception Government may substantially burden a per- son’s exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling govern- mental interest; and (2) is the least restrictive means of fur- thering that compelling governmental inter- est. (c) Judicial relief A person whose religious exercise has been 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. Standing to assert a claim or de- fense under this section shall be governed by the general rules of standing under article III of the Constitution. (Pub. L. 103–141, § 3, Nov. 16, 1993, 107 Stat. 1488.) § 2000bb–2. Definitions As used in this chapter— (1) the term ‘‘government’’ includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity; (2) the term ‘‘covered entity’’ means the Dis- trict of Columbia, the Commonwealth of Puer- to Rico, and each territory and possession of the United States; (3) the term ‘‘demonstrates’’ means meets the burdens of going forward with the evidence and of persuasion; and (4) the term ‘‘exercise of religion’’ means re- ligious exercise, as defined in section 2000cc–5 of this title. (Pub. L. 103–141, § 5, Nov. 16, 1993, 107 Stat. 1489; Pub. L. 106–274, § 7(a), Sept. 22, 2000, 114 Stat. 806.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 103–141, Nov. 16, 1993, 107 Stat. 1488, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 2000bb of this title and Tables. AMENDMENTS 2000—Par. (1). Pub. L. 106–274, § 7(a)(1), substituted ‘‘or of a covered entity’’ for ‘‘a State, or a subdivision of a State’’. Par. (2). Pub. L. 106–274, § 7(a)(2), substituted ‘‘term ‘covered entity’ means’’ for ‘‘term ‘State’ includes’’. Par. (4). Pub. L. 106–274, § 7(a)(3), substituted ‘‘reli- gious exercise, as defined in section 2000cc–5 of this title’’ for ‘‘the exercise of religion under the First Amendment to the Constitution’’. § 2000bb–3. Applicability (a) In general This chapter applies to all Federal law, and the implementation of that law, whether statu- tory or otherwise, and whether adopted before or after November 16, 1993. (b) Rule of construction Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by ref- erence to this chapter. (c) Religious belief unaffected Nothing in this chapter shall be construed to authorize any government to burden any reli- gious belief.