H. B. 2657
(By Delegates T. Campbell, Crosier, Canterbury,
J. Miller and Moye)
(Originating in the Committee on the Judiciary)
[February 20, 2012]
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 convincing evidence.
(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 Constitution.
(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) A government entity may not 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 subdivision (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 court or administrative law judge may award reasonable attorney fees and costs to a person who prevails in any proceeding to enforce this section against a government entity. The provisions of this subsection relating to section attorney fees does not apply to criminal prosecutions.
(d) Nothing in this section prevents any governmental institution or facility from maintaining health, safety, security or discipline.
(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.