Bill Text: HI HB1822 | 2014 | Regular Session | Introduced

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Bill Title: Religious Freedom; Compelling Interest Test

Spectrum: Moderate Partisan Bill (Republican 5-1)

Status: (Introduced - Dead) 2014-01-21 - Referred to JUD, FIN, referral sheet 3 [HB1822 Detail]

Download: Hawaii-2014-HB1822-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	1822
TWENTY-SEVENTH LEGISLATURE, 2014
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO RELIGIOUS FREEDOM.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

    SECTION 1.  The right to free exercise of religion is guaranteed by the First Amendment to the United States Constitution and article I, section 4 of the Constitution of the State of Hawaii.  The legislature finds that there is a need for greater protection of religious freedom in Hawaii. 

    The purpose of this Act is to enact Hawaii's own version of the federal Religious Freedom Restoration Act, in order to restore the compelling interest test previously applicable to court cases arising from the free exercise of religion.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

HAWAII RELIGIOUS FREEDOM RESTORATION ACT

     §   -1  Findings.  (a)  The legislature finds that:

     (1)  The authors of the Bill of Rights secured the free

exercise of religion as an inalienable right under the First Amendment of the United States Constitution;

     (2)  The free exercise of religion is also guaranteed under

article I, section 4 of the Constitution of the State of Hawaii;

(3)  Laws intended to be neutral toward religion can be as burdensome on a person's exercise of religion as laws intended to interfere with the exercise of religion;

(4)  Government should not substantially burden the exercise of religion without compelling justification;

(5)  The decision of the United States Supreme Court, in Employment Division v. Smith, 494 U.S. 872 (1990), virtually eliminated the requirement that the government justify burdens on exercise of religion imposed by laws neutral toward religion;

(6)  The legal test articulated in the Smith case set forth a narrow view of religious freedom protection and is inconsistent with the purposes of this chapter;

(7)  The compelling interest test, used by the United States Supreme Court in the years prior to the Smith case, is a more appropriate test, as it strikes a sensible balance between religious liberty and competing government interests;

(8)  The United States Congress agreed with this position and in 1993, with strong bipartisan support, enacted the Religious Freedom Restoration Act (RFRA) to prevent federal, state, and local governments from substantially burdening a person's free exercise rights unless the burden furthered a compelling government interest and was the least restrictive means of furthering that interest;

(9)  The RFRA bill was sponsored by both Democrats and Republicans (Senators Edward Kennedy and Orrin Hatch; Representatives Charles Schumer and Christopher Cox), and was supported by a broad spectrum of conservative and liberal religious groups and public interest organizations, as well as atheists; 

(10) Congress passed the RFRA bill with 97 of 100 senators voting in favor, and with a majority of representatives voting in favor (at the time, democrats constituted the majority the Senate, and comprised 258 of the total 435 members of the House);

(11) President Bill Clinton signed RFRA into law in November 1993; Vice-President Al Gore cited it as "one of the most important steps to reaffirm religious freedom in my lifetime.";

(12) Although the United States Supreme Court subsequently ruled in City of Boerne v. Flores, 521 U.S. 507 (1997) that Congress cannot require states to use the compelling interest test in religious freedom cases, individual states have the right to enact such legislation on their own; and

(13) As of December 2013, seventeen states have enacted their own versions of the Religious Freedom Restoration Act.  They are: Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia.

(b)  The legislature declares its intent that:

(1)  It shall be the policy of the State that courts apply the compelling interest test in cases arising from the free exercise of religion; and

(2)  This chapter shall provide a claim or defense to persons whose exercise of religion is substantially burdened or likely to be burdened by the State or its political subdivisions.

     §   -2  Definitions.  As used in this chapter:

     "Burden" means any government action that directly or indirectly constrains, inhibits, curtails, or denies the exercise of religion by any person or compels any action contrary to a person's exercise of religion, and includes, but is not limited to, withholding benefits, assessing criminal, civil, or administrative penalties, or exclusion from government programs or access to government facilities.

     "Exercise of religion" means an act or refusal to act that is substantially motivated by the person's sincerely held religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.

     "Fraudulent claim" means a claim that is dishonest in fact or that is made principally for a patently improper purpose, such as to harass the opposing party.

     "Person" means any legal person or entity under the laws of the State of Hawaii and the laws of the United States.

     "State" includes the executive, legislative, and judicial branches, as well as agencies, boards, commissions, departments, and other government entities of the State or its political subdivisions, and any person acting under color of law of the State or its political subdivisions.

    §   ‑3  Free exercise of religion protected.  (a)  The State and its political subdivisions shall not substantially burden a person's exercise of religion, even if the burden arises from a law of general applicability, except as provided in subsection (b).

    (b)  The State and its political subdivisions may substantially burden a person's exercise of religion, but only if it demonstrates that imposition of the burden on the person is both:

    (1) In furtherance of a compelling governmental interest; and

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

    §   ‑4  Judicial relief.  (a)  A person whose exercise of religion has been burdened or is substantially likely to be burdened in violation of this chapter may assert that violation as a claim or defense in a judicial proceeding.  The court may grant appropriate relief as may be necessary, including:

     (1)  Declaratory relief;

     (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 incurred in bringing the action.

     (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 the State's exercise of governmental authority.  A claimant is not entitled to recover exemplary damages under this chapter.

     (c)  An action under this section shall be brought in circuit court.

     (d)  A person shall not bring an action for damages or declaratory or injunctive relief against an individual, other than an action brought against a person acting under color of law of the State or its political subdivisions.

     (e)  Any person found by the court to have abused the protection of this chapter by making a fraudulent claim may be enjoined from filing further claims under this chapter without leave of court.

     §   -5  Waiver of sovereign immunity.  Immunity from liability of the State and its employees shall be waived for an action brought pursuant to this chapter.

     §   -6  Applicability; construction.  (a)  This chapter applies to all state and county laws, ordinances, and rules, as well as their implementation, and whether adopted before or after the enactment of this chapter.

     (b)  State law adopted after the date of the enactment of this chapter is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.

     (c)  Nothing in this chapter shall be construed to authorize the State to burden any religious belief.

     (d)  Nothing in this chapter shall create any rights by an employee against a private employer.

     (e)  Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of article I, section 4 of the Constitution of the State of Hawaii, or the First Amendment to the United States Constitution, which prohibit laws respecting the establishment of religion.  This chapter shall not be construed to permit any practice prohibited by such provisions.

     (f)  The granting of government funding, benefits, or exemptions, to the extent permissible under the Constitution of the State of Hawaii, shall not constitute a violation of this chapter. 

     As used in this subsection, "granting" does not include the denial of government funding, benefits, or exemptions.

     (g)  The protection of the free exercise of religion granted under this chapter is in addition to the protections granted by federal law, the United States Constitution, and the Constitution of the State of Hawaii."

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

 

INTRODUCED BY:	_____________________________
	_____________________________

 

 

Report Title:

Religious Freedom; Compelling Interest Test

 

Description:

Establishes the Hawaii Religious Freedom Restoration Act.  Prohibits the State and counties from enacting laws that substantially burden a person's free exercise of religion, unless the imposition of the burden furthers a compelling governmental interest and uses the least restrictive means to do so.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.