HB4012 S JUD AM #1

Lovell 7908

The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:

The purpose of this article is to affirm the rights of West Virginians as enumerated in section fifteen of Article III of the Constitution of the State of West Virginia and the First Amendment to the United States Constitution; to codify the application of the compelling interest test and strict scrutiny standard set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), and affirmed by State v. Everly, 150 W.Va. 423 (1966); and to guarantee its application in all cases in which any person’s free exercise of religion is alleged to have been substantially burdened by governmental action.

As used in this article:

“Exercise of religion" means the sincere practice or observance of religion under the rights enumerated in section 15 of Article III of the Constitution of the State of West Virginia; and the First Amendment to the Constitution of the United States of America.

"Governmental action" means any action by a branch, department, agency, board, commission, instrumentality, official, or a person or entity acting in an agency capacity, of the state of West Virginia or a political subdivision thereof.

“Substantially burden” means a governmental action which does any of the following:

(1) Significantly constrains or inhibits conduct or expression mandated by an person’s sincerely held religious beliefs;

(2) Significantly curtails a person’s ability to express adherence to his or her religious faith;

(3) Denies a person a reasonable opportunity to engage in activities which are fundamental to that person’s religion; or

(4) Compels conduct or expression by a person which violates a specific tenet of that person’s religious faith.

(a) Except as authorized by the provisions of this article, governmental action may not substantially burden a person’s right to the free exercise of his or her religion, even if the burden results from a rule of general applicability, unless it is demonstrated that applying the burden to a person’s free exercise of religion in this particular instance:

(1) Is in furtherance of a compelling governmental interest; and

(2) Is the least restrictive means of furthering that compelling governmental interest.

(b) A person who believes his or her free exercise of religion has been substantially burdened, or is likely to be substantially burdened, in may assert such alleged violation or impending violation as a claim for injunctive or declaratory relief or as a defense in a judicial or administrative proceeding. If the person asserting such a claim or defense prevails then he or she may obtain relief against the state or its political subdivisions: Provided, That such relief is limited to injunctive or declaratory relief.

(c) Nothing in this article may be construed to constitute a defense to any cause of action based upon a refusal to provide emergency medical treatment.

(d) This article does not apply to any local or regional jail, or any state or Federal correctional facility, nor any facility that treats civilly committed sexually violent offenders.

§5-11C-5. Churches and religious institutions.

A person’s free exercise of religion shall apply equally to churches and religious institutions in or through which persons exercise and express their religious faith, and including also the pastors, ministers, priests, rabbis and other clerics of such churches and religious institutions.

§5-11C-6. Governmental actions expressly prohibited.

No governmental entity may:

(1) Compel a church, religious institution or cleric thereof to perform any sacrament, ceremony, practice, ritual or service of its, his or her faith against its, his or her will;

(2) Compel a cleric of any church or religious institution to recognize, for purposes of practicing his or her religious duties, any marriage which violates the tenets of his or her faith;

(3) Preclude a cleric of any church or religious institution from performing any sacrament, ceremony, practice ritual or service of his or her faith that is not prohibited by a state law, rule or county or municipal ordinance regulating health and safety;

(4) Compel any person to participate in or undergo any religious sacrament, ceremony, practice, ritual or service which violates his or her religious beliefs.

§5-11C-7. Scope of article; legislative intent.

(a) In enacting this article, it is not the intention of the legislature to expand or diminish the rights of persons under the United States Constitution, the Constitution of West Virginia, applicable laws of the United States, the laws of the State of West Virginia or ordinances enacted by political subdivisions of the State of West Virginia. Rather, it is the sole intention of the Legislature in enacting this article to codify the test and standard of review under which governmental actions are to be judicially reviewed when those action are alleged to be substantially burdening to one person’s sincerely held religious beliefs.

(b) Nothing in this article shall be construed to create a cause of action for monetary damages.