H. B. 2477
(By Delegates Shook and Varner)
[Introduced February 16, 2009; 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 and §1-7-6, all relating to the freedom
of religion of West Virginians.
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 and §1-7-6, all to read as follows:
ARTICLE 7. WEST VIRGINIA RELIGIOUS FREEDOM ACT.
§1-7-1. Short title.
This article may be cited as, "The Religious Freedom
Restoration Act of 2009."
§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 3-15, 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 without a compelling justification;
(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:
(1) "Government" or "State" includes any branch, department,
agency, instrumentality, or official or other person acting under
color of law of the state, a county, special district,
municipality, or any other subdivision of the state.
(2) "Demonstrates" means to meet the burden of going forward
with the evidence of persuasion.
(3) "Exercise of religion" means 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.
§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 or
general applicability, except that government may substantially
burden a person's exercise of religion only if it demonstrates that
application of the burden to the person:
(1) Is in futherance of 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 proceeding and obtain appropriate 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 or otherwise, and
whether adopted before or after the enactment of this article.
(b) State law adopted after the date of the enactment of this
article is subject to this article unless such law explicitly
excludes such application by reference to this article.
(c) Nothing in this article may be construed to authorize the
government to burden any religious belief.
(d) Nothing in this article may be construed to affect,
interpret, or in any way address that portion of Section 3-15,
Article III of the Constitution of the State of West Virginia
prohibiting laws respecting the establishment of religion.
(e) Nothing in this article creates any rights by an employee
against an employer if the employer is not a governmental agency.
(f) Nothing in this article may be construed to affect,
interpret, or in any way address that portion of Section 3-15,
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.
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.