Senate Bill No. 638
(By Senators Kessler and Chafin)
[Introduced February 22, 2010; 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 §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 in 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 three through fifteen, 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
(3) Government should not substantially burden religious
exercise unless it is essential to further a compelling interest;
(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
(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.
As used in this article:
"Demonstrates" means to meet the burden of clear and
"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.
"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
"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.
"Substantially burden" means to inhibit or curtail religiously
§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
(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.
(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
(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 authorizes the government to
burden any religious belief.
(d) Nothing in this article creates any rights by an employee
against an employer if the employer is not a governmental agency.
(e) Nothing in this article affects, interprets or in any way
addresses that portion of sections three through fifteen, 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 does not permit any practice prohibited by those provisions.
(f) Nothing in this article prevents any governmental
institution or facility from maintaining health, safety, security
(g) The denial of government funds, benefits or exemptions may
be construed as a substantial burden subject to the terms of this
(h) The granting of government funds, benefits or exemptions
are not a substantial burden under this article.
The decision of a circuit court to grant or deny declaratory
or injunctive relief under this article 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
This article is new; therefore, strike-throughs and
underscoring have been omitted.