Senate Bill No. 396
(By Senators Barnes and Nohe)
[Introduced February 28, 2013; referred to the Committee on the
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5-11B-1, §5-11B-2
and §5-11B-3, all relating to establishing the West Virginia
Religious Freedom Restoration Act; short title; definitions;
applicability; construction; and remedies.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5-11B-1, §5-11B-2 and
§5-11B-3, all to read as follows:
ARTICLE 11B. WEST VIRGINIA RELIGIOUS FREEDOM RESTORATION ACT.
§5-11B-1. Short title.
This article may be cited as the "West Virginia Religious
Freedom Restoration Act."
As used in this article:
(a) "Demonstrates" means meets the burdens of going forward
with the evidence and of persuasion under the standard of clear and
(b) "Exercise of religion" means the exercise of religion
under article three, section fifteen of the Constitution of West
Virginia, and the first amendment to the United States
(c) "Government entity" means any branch, department, agency
or instrumentality of state government, or any official or other
person acting under color of state law, or any political
subdivision of the state and does not include any local, regional
or federal correctional facility or any facility that treats
civilly committed sexually violent predators.
(d) "Prevails" means to obtain prevailing party status as
defined by courts construing the federal Civil Rights Attorney Fees
Awards Act of 1976, 42 U.S.C. §1988.
(e) "Substantially burden" means to inhibit or curtail
religiously motivated practice.
§5-11B-3. Applicability; construction; remedies.
(a) No government entity may substantially burden a person's
free exercise of religion even if the burden results from a rule of general applicability unless it demonstrates that application of
the burden to the person is: (1) Essential to further a compelling
governmental interest; and (2) the least restrictive means of
furthering that compelling governmental interest.
(b) Nothing in this section may be construed to: (1)
Authorize any government entity to burden any religious belief; or
(2) affect, interpret or in any way address those portions of
article three, section fifteen of the Constitution of West
Virginia, and the first amendment to the United States Constitution
that prohibit laws respecting the establishment of religion.
Granting government funds, benefits or exemptions, to the extent
permissible under clause (2) of this subsection, does not
constitute a violation of this section. As used in this
subsection, "granting" used with respect to government funding,
benefits or exemptions does not include the denial of government
funding, benefits or exemptions.
(c) A person whose religious exercise has been burdened by
government in violation of this section may assert that violation
as a claim or defense in any judicial or administrative proceeding
and may obtain declaratory and injunctive relief from a circuit
court, but may not obtain monetary damages. A person who prevails
in any proceeding to enforce this section against a government
entity may recover his or her reasonable costs and attorney fees. The provisions of this subsection relating to attorney fees does
not apply to criminal prosecutions.
(d) Nothing in this section shall prevent any governmental
institution or facility from maintaining health, safety, security
(e) The decision of the circuit court to grant or deny
declaratory and injunctive relief may be appealed by petition to
the Supreme Court of Appeals.
NOTE: The purpose of this bill is to establish the West
Virginia Religious Freedom Restoration Act.
This article is new; therefore, strike-throughs and
underscoring have been omitted.