Introduced Version
House Bill 3233 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 3233
(By Delegates Miley, Campbell, Shook,
Wooton, Hamilton and Ellem)
[Introduced January 13, 2010; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §1-7-1, §1-7-2,
§1-7-3, §1-7-4, §1-7-5, §1-7-6 and §1-7-7, all relating to the
freedom of religion of West Virginia.
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 §1-7-1, §1-7-2, §1-7-3,
§1-7-4, §1-7-5, §1-7-6 and §1-7-7, all to read as follows:
ARTICLE 7. WEST VIRGINIA RELIGIOUS RESTORATION FREEDOM ACT.
§1-7-1. Short title.
This article may be cited as the "West Virginia Religious
Freedom Restoration Act."
§1-7-2. Legislative findings and purpose.
(a) The Legislature finds that:
(1) The free exercise of religion is an unalienable right,
protected by the First Amendment of the Constitution of the United
States and Section 3 through 15, Article III of the Constitution of
the State of West Virginia;
(2) Laws that appear neutral toward religion may burden
religious exercise as surely as laws intended to interfere with
religious exercise;
(3) Government should not substantially burden religious
exercise unless it is essential to further a compelling interest;
and
(4) The compelling interest test set forth in prior state and
federal court rulings is a workable test for striking sensible
balances between religious liberty and competing prior governmental
interests.
(b) Purposes:
(1) To require that the compelling interest test be applied as
a guarantee in all cases where free exercise of religion is
substantially burdened; and
(2) To provide a claim or defense to persons whose religious
exercise is substantially burdened by government.
§1-7-3. Definitions.
As used in this article:
(a) "Demonstrates" means to meet the burden of clear and
convincing evidence.
(b) "Exercise of religion" means:
(1) An act or refusal to act that is substantially motivated
by a religious belief, whether or not the religious exercise is
compulsory or central to a larger system of religious belief; or
(2) Exercise of religion under Article three, Section fifteen
of the Constitution of West Virginia, and the First Amendment to the United States Constitution.
(c) "Government" or "state" includes any branch, department,
agency, instrumentality or subdivision of the state, county,
special district or municipality, or any official or other person
acting under color of law for the foregoing, but does not include
any correctional facility or facility that treats civilly committed
persons.
(d) "Prevails" means what is meant by 'prevailing party'
status as defined by courts construing the federal Civil Rights
Attorney Fees Awards Act of 1977, 42 U.S.C. §1988.
(e) "Substantially burden" means to inhibit or curtail
religiously motivated practice.
§1-7-4. Freedom of religion protected.
(a) The government may not substantially burden a person's
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:
(1) Is essential to further a compelling governmental
interest; and
(2) Is the least restrictive means of furthering that
compelling governmental interest.
(b) 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 or administrative proceeding and obtain
appropriate declaratory, injunctive and other nonmonetary relief.
§1-7-5. Attorney's fees and costs.
The prevailing plaintiff in any action or proceeding to
enforce a provision of this article is entitled to reasonable
attorney's fees and costs to be paid by the government.
§1-7-6. Applicability.
(a) This article applies to all state law, and the
implementation of that law, whether statutory, regulatory, or
otherwise, and whether adopted before or after the enactment of
this article.
(b) Acts of the West Virginia Legislature enacted after the
date of the enactment of this article are subject to this article
unless explicitly excluded by reference to this article.
(c) Nothing in this article shall be construed to authorize
the government to burden any religious belief.
(d) Nothing in this article shall be construed to affect,
interpret, or in any way address that portion of Section 3 through
15, Article III of the Constitution of the State of West Virginia
prohibiting laws respecting the establishment of religion.
(e) Nothing in this article shall create any rights by an
employee against an employer if the employer is not a governmental
agency.
(f) Nothing in this article shall be construed to affect,
interpret, or in any way address that portion of Section 3 through
15, Article III of the Constitution of the State of West Virginia
and the First Amendment to the Constitution of the United States
respecting the establishment of religion. This article may not be
construed to permit any practice prohibited by those provisions.
(g) Nothing in this article shall prevent any governmental
institution or facility from maintaining health, safety, security
or discipline.
(h) The denial of government funds, benefits or exemptions may
be construed as a substantial burden subject to the terms of this
article.
(i) The granting of government funds, benefits or exemptions
may not be construed as a substantial burden under this article.
§1-7-7. Appeal.
The decision of the circuit court to grant or deny declaratory
or injunctive relief may be appealed by petition to the Supreme
Court of Appeals.
NOTE: The purpose of this bill is to prevent government
sponsored interference with a West Virginian's guaranteed freedom
of religion.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.