Hawaii-2014-HB1196-Introduced

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

religious freedom act

§ -1 Definitions. As used in this chapter, unless the context requires otherwise:

"Free exercise of religion" means an act or refusal to act that is substantially motivated by sincere religious belief. In determining whether an act or refusal to act is substantially motivated by sincere religious belief under this chapter, it is not necessary to determine that the act or refusal to act is motivated by a central part or central requirement of the person's sincere religious belief.

"Government agency" means:

(1) The State or any of its political subdivisions; and

(2) Any agency of the State or any of its political subdivisions, including a department, bureau, board, commission, office, agency, council, or public institution of higher education.

§ -2 Application. (a) This chapter shall apply to any ordinance, rule, order, decision, practice, or other exercise of governmental authority.

(b) This chapter shall apply to any act of a government agency, including the Hawaii civil rights commission, in the exercise of governmental authority, in granting or refusing to grant a government benefit to an individual.

(c) This chapter apply to each law of the State unless the law is expressly made exempt from the application of this chapter by reference to this chapter.

§ -3 Religious freedom protected. (a) Subject to subsection (b), a government agency shall not burden a person's free exercise of religion.

(b) Subsection (a) shall not apply if the government agency demonstrates that the application of the burden to the person:

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

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

(c) A government agency that makes the demonstration required by subsection (b) shall not be required to separately prove that the remedy and penalty provisions of the law, ordinance, rule, order, decision, practice, or other exercise of governmental authority that imposes the substantial burden are the least restrictive means to ensure compliance or to punish the failure to comply.

(d) In determining whether an interest is a compelling governmental interest under subsection (b), a court shall give weight to the interpretation of "compelling interest" in federal case law relating to the free exercise of religion clause of the First Amendment of the United States Constitution.

§ -4 Defense. A person whose free exercise of religion has been burdened in violation of section -3 may assert that violation as a defense in a judicial or administrative proceeding without regard to whether the proceeding is brought in the name of the State or by any other person.

§ -5 Remedies. (a) Any person, other than a government agency, who successfully asserts a claim or defense under this chapter shall be entitled to recover:

(1) Declaratory relief under section 632-1;

(2) Injunctive relief to prevent the threatened violation or continued violation;

(3) Compensatory damages for pecuniary and nonpecuniary losses; and

(4) Reasonable attorney's fees, court costs, and other reasonable expenses.

(b) Compensatory damages awarded under subsection (a)(3) shall not exceed $10,000 for each entire, distinct controversy, without regard to the number of members or other persons within a religious group who claim injury as a result of a government agency's exercise of governmental authority. A claimant shall be entitled to recover exemplary damages under this chapter.

(d) A person shall not bring an action for damages or declaratory or injunctive relief against an individual, other than an action brought against an individual acting in the individual's official capacity as an officer of a government agency.

§ -6 Notice; right to accommodate. (a) A person shall not bring an action to assert a claim under this chapter unless, sixty days before bringing the action, the person gives written notice to the government agency by certified mail, return receipt requested:

(1) That the person's free exercise of religion is substantially burdened by an exercise of the government agency's governmental authority;

(2) Of the particular act or refusal to act that is burdened; and

(3) Of the manner in which the exercise of governmental authority burdens the act or refusal to act.

(b) Notwithstanding subsection (a), a claimant, within the sixty-day period established under subsection (a), may bring an action for declaratory or injunctive relief and associated attorney's fees, court costs, and other reasonable expenses, if the:

(1) Exercise of governmental authority that threatens to substantially burden the person's free exercise of religion is imminent; and

(2) Person was not informed and did not otherwise have knowledge of the exercise of the governmental authority in time to reasonably provide the notice.

(c) A government agency that receives a notice under subsection (a) may remedy the substantial burden on the person's free exercise of religion.

(d) A remedy implemented by a government agency under this section:

(1) May be designed to reasonably remove the substantial burden on the person's free exercise of religion;

(2) Need not be implemented in a manner that results in an exercise of governmental authority that is the least restrictive means of furthering the governmental interest, notwithstanding any other provision of this chapter; and

(3) Shall be narrowly tailored to remove the particular burden for which the remedy is implemented.

(e) A person with respect to whom a substantial burden on the person's free exercise of religion has been cured by a remedy implemented under this section shall not bring an action under section -5.

§ -7 Three-year limitations period. (a) An action to assert a claim for damages under this chapter shall be filed not later than three years after the date the person knew or should have known of the burden upon the person's free exercise of religion.

(b) Mailing notice under section -6 tolls the limitations period established under this section until the seventy-fifth day after the date on which the notice was mailed.

§ -8 Sovereign immunity waived. (a) Subject to section -6, the State waives and abolishes its sovereign immunity to suit and from liability to the extent of liability created under section -5, and a claimant may sue a government agency for damages allowed under section -5.

(b) Notwithstanding subsection (a), this chapter shall not waive or abolish sovereign immunity to suit and from liability under the Eleventh Amendment to the United States Constitution.

§ -9 Effect on rights. (a) This chapter shall not authorize a government agency to burden a person's free exercise of religion.

(b) The protection of religious freedom afforded by this chapter is in addition to the protections provided under federal law and the state and federal constitution."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1196
TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII