HB 440 - AS INTRODUCED
2021 SESSION
21-0658
05/04
HOUSE BILL 440
AN ACT relative to the protection of religious liberty.
SPONSORS: Rep. Kofalt, Hills. 4; Rep. Ammon, Hills. 40; Rep. Nunez, Hills. 37; Sen. Avard,
Dist 12; Rep. Homola, Hills. 27
COMMITTEE: Judiciary
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ANALYSIS
This bill provides that the state shall not substantially burden a person’s right to the free
exercise of religion unless doing so is essential to further a compelling governmental interest and is
the least restrictive means of furthering that compelling governmental interest. The bill also
provides that during a state of emergency, religious organizations shall be permitted to operate
under the same restrictions, if any, as providers of essential services.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
 HB 440 - AS INTRODUCED
21-0658
05/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
AN ACT relative to the protection of religious liberty.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 1 Title. This act may be known and cited as the New Hampshire religious liberty act.
2 2 Legislative Findings. The general court finds that:
3 I. The framers of our federal and state constitutions made the value judgment that religion
4 warrants distinct protections. “In matters of Religion, no mans right is abridged by the institution of
5 Civil Society… Religion is wholly exempt from its cognizance.” James Madison, Memorial and
6 Remonstrance Against Religious Assessments.
7 II. The right to the free exercise of religion, in both the federal and New Hampshire
8 constitutions, was not meant to be a vague sentiment. Nor was it meant to protect mere private
9 opinion or thought. It was intended to be just as concrete as the right of free speech, the right to be
10 free from unreasonable searches, or any other enumerated right. It is “held by the same tenure with
11 all our other rights… it is enumerated with equal solemnity, or rather studied emphasis.” Id.
12 III. The general court understands the protections afforded to religious exercise under the
13 New Hampshire Bill of Rights to be even stronger than those provided by the federal Bill of Rights.
14 New Hampshire Constitution, Part 1, Articles 5; 6.
15 IV. Governments have trampled on religious exercise by crafting generally applicable laws
16 which do not explicitly target a religion or religious activity. The fact that a law is generally
17 applicable does not mean that it complies with the federal or state free exercise clauses. As the
18 United States Supreme Court has said, the “constitutional rights of those spreading their religious
19 beliefs through the spoken and printed word are not to be gauged by standards governing retailers or
20 wholesalers of books.” Murdock v. Com. of Pennsylvania, 319 U.S. 105, 111 (1943).
21 V. Protecting free exercise rights is especially important when it comes to the exercise of
22 controversial or unpopular religious beliefs. “[M]any people hold beliefs alien to the majority of our
23 society -- beliefs that are protected by the First Amendment but which could easily be trod upon
24 under the guise of ‘police’ or ‘health’ regulations reflecting the majority's views.” Sherbert v. Verner,
25 374 U.S. 398 at 411 (Douglas, J., concurring in the judgment).
26 VI. The United States Supreme Court has observed that forcing people to abandon the
27 precepts of their religion “puts the same kind of burden upon the free exercise of religion as would a
28 fine imposed” for a worship service. Sherbert, 374 U.S. 398 at 404 (1963).
29 VII. Although the state may legitimately burden religious exercise, it may only do so if there
30 exists “some compelling state interest… [which] justifies the substantial infringement of [a person’s]
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1 First Amendment right.” Sherbert, 374 U.S. 398 at 406. The government must have a “paramount
2 interest” in burdening free exercise. Id.
3 VIII. In response to the common argument that religious liberty protections will result in
4 confusion and anarchy, allowing individuals to capriciously nullify ordinary laws, the Supreme Court
5 in 1963 found that “there is no proof whatever to warrant such fears of malingering or deceit… it is
6 highly doubtful whether such evidence would be sufficient to warrant a substantial infringement of
7 religious liberties.” Sherbert, 374 U.S. 398 at 407.
8 IX. The free exercise of religion is currently under threat from many sides. As four justices
9 of the United States Supreme Court have observed, the Court’s 1990 decision in Employment
10 Division v. Smith has “drastically cut back on the protection provided by the Free Exercise Clause.”
11 Kennedy v. Bremerton Sch. Dist., cert. denied, 139 S. Ct. 634, 635 (2019) (Alito, J., concurring.). In
12 the wake of the Covid-19 pandemic, many governors’ emergency orders have treated churches far
13 more restrictively than comparable secular entities. Maryville Baptist Church, Inc. v. Beshear, 957
14 F.3d 610, 614, (2020) (“The [Governor of Kentucky’s] orders also likely ‘prohibit[] the free exercise’ of
15 ‘religion’ in violation of the First and Fourteenth Amendments… Discriminatory laws come in many
16 forms.”). At the same time, federal politicians are currently introducing bills intended to roll back
17 statutory protections for the free exercise of religion.
18 X. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006),
19 indicates that legislative bodies may enact statutory law requiring that laws and other state action
20 burdening the free exercise of religion be justified by a compelling governmental interest. Many
21 states have done so, passing laws similar to this act.
22 XI. The compelling interest test, set forth in pre-1990 Supreme Court rulings and this act, is
23 a workable test for striking sensible balances between religious liberty and competing governmental
24 interests.
25 3 Purpose. The purposes of this act are:
26 I. To adopt the compelling interest test as articulated in Sherbert v. Verner, 374 U.S. 398
27 (1963) and to guarantee its application in all cases where the free exercise of religion is substantially
28 burdened by state action;
29 II. To provide a claim or defense to a person or persons whose exercise of religion is
30 substantially burdened by state action;
31 III. To provide a claim or defense to any religious organization whose religious services are,
32 in a state of emergency, treated more restrictively than any other essential service; and
33 IV. To adopt this act as the general court’s construction of the relevant provisions in the
34 New Hampshire Bill of Rights, so that New Hampshire courts may consider as persuasive this act,
35 including the general court’s legislative findings, in any future cases interpreting the New
36 Hampshire Bill of Rights.
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1 4 New Chapter; Protection of Religious Liberty. Amend RSA by inserting after chapter 546-B
2 the following new chapter:
3 CHAPTER 546-C
4 PROTECTION OF RELIGIOUS LIBERTY
5 546-C:1 Definitions. In this chapter:
6 I. “Person” means any individual, association, partnership, corporation, church, religious
7 institution, estate, trust, foundation, or other legal entity.
8 II. “Exercise of religion” means the practice or observance of religion. It includes, but is not
9 limited to, any action that is motivated by a sincerely held religious belief, whether or not the
10 exercise is compulsory or central to a larger system of religious belief.
11 III. “Religious organization” means:
12 (a) A house of worship, including but not limited to churches, synagogues, mosques,
13 shrines, and temples;
14 (b) A religious group, corporation, association, educational institution, ministry, order,
15 society, or similar entity, regardless of whether it is integrated or affiliated with a church or other
16 house of worship; or
17 (c) An officer, owner, employee, manager, religious leader, clergy, or minister of an
18 entity or organization described in this paragraph.
19 IV. “Religious service” means a meeting, gathering, or assembly of 2 or more persons
20 organized by a religious organization for the purpose of worship, teaching, training, providing
21 educational services, conducting religious rituals, or other activities that are deemed necessary by
22 the religious organization for the exercise of religion.
23 V. “State action” means the implementation or application of any law, including, but not
24 limited to, state and local laws, ordinances, rules, regulations, and policies, whether statutory or
25 otherwise, or other action by any governmental entity including but not limited to any subdivision of
26 the state and any local government, municipality, instrumentality, or public official authorized by
27 law.
28 VI. “State government” means:
29 (a) The state or a political subdivision of the state;
30 (b) Any agency of the state or of a political subdivision of the state, including a
31 department, bureau, board, commission, council, court, or public institution of higher education;
32 (c) Any person acting under color of state law; and
33 (d) Any private person suing under or attempting to enforce a law, rule, or regulation
34 adopted by the state or a political subdivision of the state.
35 VII. “Substantial burden” means any action that directly or indirectly constrains, inhibits,
36 curtails, or denies the exercise of religion by any person or compels any action contrary to a person’s
37 exercise of religion. It includes, but is not limited to, withholding benefits, assessing criminal, civil,
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1 or administrative penalties or damages, or exclusion from governmental programs or access to
2 governmental facilities.
3 546-C:2 Free Exercise of Religion Protected.
4 I. State action shall not substantially burden a person’s right to exercise of religion, even if
5 the burden results from a rule of general applicability, unless it is demonstrated that applying the
6 burden to that person’s exercise of religion in this particular instance:
7 (a) Is essential to further a compelling governmental interest; and
8 (b) Is the least restrictive means of furthering that compelling governmental interest.
9 II. A person whose exercise of religion has been burdened, or is likely to be burdened, in
10 violation of this section may assert such violation or impending violation as a claim or defense in a
11 judicial or administrative proceeding, regardless of whether the state or one of its political
12 subdivisions is a party to the proceeding. The person asserting such a claim or defense may obtain
13 appropriate relief, including relief against the state or its political subdivisions. Appropriate relief
14 includes, but is not limited to, injunctive relief, declaratory relief, compensatory damages, and costs
15 and attorney fees.
16 III. This section applies to all laws, and the implementation of laws, whether statutory or
17 otherwise, and whether adopted before or after the effective date of this chapter.
18 546-C:3 State of Emergency Protections.
19 I. Notwithstanding RSA 4:45 or any other provision of law to the contrary, during a state of
20 emergency, as defined in RSA 21-P:35, VIII, the state government shall permit a religious
21 organization to continue operating and to engage in religious services to the same or greater extent
22 that other organizations or businesses that provide essential services that are necessary and vital to
23 the health and welfare of the public are permitted to operate.
24 II. Nothing in this section shall prohibit the state government from requiring religious
25 organizations to comply with neutral health, safety, or occupancy requirements issued by the state
26 or federal government that are applicable to all organizations and businesses that provide essential
27 services. Provided, however, that the state government shall not enforce any health, safety, or
28 occupancy requirement that imposes a substantial burden on a religious service unless the state
29 government demonstrates that applying the burden to the religious service in this particular
30 instance is essential to further a compelling governmental interest and is the least restrictive means
31 of furthering that compelling governmental interest.
32 III. A religious organization may assert a violation of this section as a claim against the
33 state government in any judicial or administrative proceeding or as a defense in any judicial or
34 administrative proceeding without regard to whether the proceeding is brought by or in the name of
35 the state government, any private person, or any other party.
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1 IV. Any religious organization that successfully asserts a claim or defense under this section
2 may recover appropriate relief including, but not limited to, injunctive relief, declaratory relief,
3 compensatory damages, and costs and attorney fees.
4 546-C:4 Immunity Waived. Sovereign, governmental, and qualified immunities to suit and from
5 liability are waived and abolished to the extent of liability created by this chapter.
6 546-C:5 Rules of Construction.
7 I. This chapter shall be construed in favor of substantive and broad protections for the free
8 exercise of religion.
9 II. The protection of free exercise of religion afforded by this chapter are in addition to any
10 further protections provided under federal law, state law, and the state and federal constitutions.
11 III. Nothing in this chapter shall be construed to preempt or invalidate any state law or
12 local ordinance that is equally or more protective of free exercise of religion. Nothing in this chapter
13 shall be construed to narrow the meaning or application of any state or local law protecting free
14 exercise of religion.
15 IV. This chapter applies to, and in cases of conflict supersedes, each statute that impinges
16 upon the free exercise of religion protected by this chapter, unless a conflicting state statute is
17 expressly made exempt from the application of this chapter. This chapter also applies to, and in
18 cases of conflict supersedes, any ordinance, rule, regulation, order, opinion, decision, practice, or
19 other law that impinges upon the free exercise of religion protected by this chapter.
20 V. If any provision of this chapter or any application of such provision to any particular
21 person or circumstance is held to be invalid under law, the remainder of this chapter and the
22 application of its provisions to any other person or circumstance shall not be affected.
23 5 Effective Date. This act shall take effect 60 days after its passage.


Statutes affected:
latest version: 4:45, 4:47