Bill Text: HI HB2764 | 2016 | Regular Session | Introduced

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Bill Title: Religious Freedom; Public Accommodations; Marriage.

Spectrum: Partisan Bill (Republican 3-0)

Status: (Introduced - Dead) 2016-02-01 - Referred to JUD, FIN, referral sheet 5 [HB2764 Detail]

Download: Hawaii-2016-HB2764-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	2764
TWENTY-EIGHTH LEGISLATURE, 2016
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 legislature finds that in 2013, the President responded to the decision of the United States Supreme Court in U.S. v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013) by recognizing that “Americans hold a wide range of views” on the issue of same-sex marriage, and “maintaining our Nation’s commitment to religious freedom” is “vital”.  Subsequent to the Court's next landmark ruling in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2071 (2015), legal scholars agree that conflicts between same-sex marriage and religious liberty are inevitable and, therefore, best addressed through legislation.  In the Obergefell v. Hodges opinion, the Court held that same-sex couples have a right to marry, but also noted that “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” 

     The legislature thus also finds that the State is obligated to protect religious freedom from government intrusion by remedying, deterring, and preventing government interference with religious exercise in a way that complements the protections mandated by the constitutions of the State of Hawaii and the United States.  The societal benefit of laws that protect the free exercise of religious beliefs and moral convictions about marriage is that private citizens and institutions will be encouraged to demonstrate tolerance for those beliefs and convictions and therefore contribute to a more respectful, diverse, and peaceful society.

     The purpose of this Act, to be known as the Hawaii Religious Freedom Restoration Act of 2016, is to:

     (1)  Protect religious freedom and liberty by establishing as a matter of State policy that the compelling interest test in the free exercise of religion, as established by the United States Supreme Court under Shubert v. Verner, 374 U.S. 398 (1963), shall be the standard applicable by the courts of this State in all cases where religious exercise is substantially burdened;

     (2)  Provide a means of judicial relief to persons whose religious exercise has been substantially burdened in violation of this Act; and

     (3)  Harmonize the right of equal protection under the law for same-sex couples with the equally important right to the free exercise of religion in the areas of marriage and public accommodations.

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

"CHAPTER

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 unalienable 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 neutral toward religion may substantially burden religious exercise as surely as laws intended to interfere with religious exercise;

     (4)  Government should not substantially burden religious exercise without compelling justification;

     (5)  The United States Supreme Court in a recent decision virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

     (6)  The compelling interest test in the free exercise of religion established by the United States Supreme Court is a workable test for striking sensible balances between religious liberty and competing government interests.

     (b)  The legislature declares its intent that:

     (1)  It shall be the policy of the State that the compelling interest test in the free exercise of religion, as established by the United States Supreme Court under Shubert v. Verner, 374 U.S. 398 (1963), shall be the standard applicable by the courts of this State in all cases where religious exercise is substantially burdened; and

     (2)  This chapter shall provide a claim or defense to persons whose religious exercise is substantially burdened by government.

     §   -2  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 results from a rule of general applicability, except as provided in subsection (b).

     (b)  Neither the State nor its political subdivisions shall burden a person's exercise of religion unless it demonstrates that imposition of the burden on the person both:

     (1)  Furthers a compelling government interest; and

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

     (c)  Notwithstanding any law to the contrary, a person whose religious exercise has been substantially burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the State or its political subdivisions.

     (d)  Nothing in this chapter shall be construed to authorize the State or its political subdivisions to substantially burden any religious belief.

     (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, prohibiting laws respecting the establishment of religion.  Granting government funding, benefits, or exemptions, to the extent permissible under article I, section 4 of the Constitution of the State of Hawaii, shall not constitute a violation of this chapter."

     SECTION 3.  Chapter 489, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART  .  RELIGIOUS FREEDOM IN PUBLIC ACCOMMODATIONS

     §489-    Religious freedom in marriage guaranteed.  Absolute freedom of conscience in all matters of religious sentiment, belief, and worship pertaining to marriage shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; provided that the liberty of conscience secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State.

     §489-    Religious organizations protected.  No religious educational, healthcare, or denominational organization; no organization operated for charitable or educational purposes and that is supervised, operated, controlled by, connected with, or publicly identified with a religious organization or group, regardless of whether its activities are deemed wholly or partly religious; and no individual employed or supervised by any of the foregoing organizations, while acting in the scope of that employment or supervision, shall be required to take any of the following actions if doing so would cause the organization or individual to violate their sincerely held religious beliefs:

     (1)  Provide services, accommodations, advantages, facilities, goods, benefits, or privileges for a purpose related to the solemnization or celebration of any marriage;

     (2)  Solemnize or celebrate any marriage; or

     (3)  Treat as valid any marriage;

provided that a religious organization engaged in the provision of health care, or its individual employees, shall treat a state-recognized marriage as valid for purposes of a spouse's rights to visitation or to surrogate health care decision making.

     §489-    Individuals and small businesses protected.  (a)  No individual, sole proprietor, or small business shall be required to take any of the following actions if doing so would cause the individual, sole proprietor, or small business to violate their sincerely held religious belief:

     (1)  Provide any facility, good, or service that assists or promotes the solemnization or celebration of any marriage, or provide counseling or other services that facilitate the formation or perpetuation of any marriage;

     (2)  Provide benefits to any spouse of an employee; or

     (3)  Provide housing, lodging, or similar accommodation to any couple.

     (b)  This section shall not apply if either:

     (1)  A party to the marriage is unable to obtain any similar good or service, employment benefits, or housing elsewhere without substantial hardship; or

     (2)  In the case of an individual who is a government employee or official, another government employee or official is not promptly available and willing to provide the requested government service without inconvenience or delay; provided that no judicial officer authorized to solemnize marriages shall be required to solemnize any marriage if to do so would violate the judicial officer's sincerely held religious beliefs.

     (c)  For purposes of this section:

     "Religious organization" means a privately held corporation or other legal entity that both:

     (1)  Holds itself out publicly as adhering to specific religious beliefs; and

     (2)  Is operated consistently with those beliefs.

     "Small business" means a partnership or legal entity other than a natural person that either:

     (1)  Provides services that are primarily performed by an owner of the business;

     (2)  Has five or fewer employees; or

     (3)  Owns five or fewer units of housing in the case of a legal entity that offers housing for rent.

     §489-    Immunity from civil cause of action and other penalties.  Notwithstanding any other law to the contrary, no refusal to provide services, accommodations, facilities, goods, or benefits protected by this part shall result in any of the following:

     (1)  A civil claim or cause of action challenging the refusal under law; or

     (2)  Any action by any state or county agency to penalize or withhold benefits from any protected entity or individual under any laws of this State or its political subdivisions, including but not limited to laws regarding employment discrimination, housing, public accommodations, educational institutions, licensing, government contracts or grants, or tax-exempt status.

     §489-    Construction.  This part shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the Constitution of the State of Hawaii and the United States Constitution."

     SECTION 4.  Chapter 572, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART  .  RELIGIOUS FREEDOM IN MARRIAGE

     §572-    Religious freedom in marriage guaranteed.  Absolute freedom of conscience in all matters of religious sentiment, belief, and worship pertaining to this chapter shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; provided that the liberty of conscience secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State.

     §572-    Religious organizations protected.  No religious educational, healthcare, or denominational organization; no organization operated for charitable or educational purposes and that is supervised, operated, controlled by, connected with, or publicly identified with a religious organization or group, regardless of whether its activities are deemed wholly or partly religious; and no individual employed or supervised by any of the foregoing organizations, while acting in the scope of that employment or supervision, shall be required to take any of the following actions if doing so would cause the organization or individual to violate their sincerely held religious beliefs:

     (1)  Provide services, accommodations, advantages, facilities, goods, benefits, or privileges for a purpose related to the solemnization or celebration of any marriage;

     (2)  Solemnize or celebrate any marriage; or

     (3)  Treat as valid any marriage;

provided that a religious organization engaged in the provision of health care, or its individual employees, shall treat a state-recognized marriage as valid for purposes of a spouse's rights to visitation or to surrogate health care decision making.

     §572-    Individuals and small businesses protected.  (a)  No individual, sole proprietor, or small business shall be required to take any of the following actions if doing so would cause the individual, sole proprietor, or small business to violate their sincerely held religious belief:

     (1)  Provide any facility, good, or service that assists or promotes the solemnization or celebration of any marriage, or provide counseling or other services that facilitate the formation or perpetuation of any marriage;

     (2)  Provide benefits to any spouse of an employee; or

     (3)  Provide housing, lodging, or similar accommodation to any couple.

     (b)  This section shall not apply if either:

     (1)  A party to the marriage is unable to obtain any similar good or service, employment benefits, or housing elsewhere without substantial hardship; or

     (2)  In the case of an individual who is a government employee or official, another government employee or official is not promptly available and willing to provide the requested government service without inconvenience or delay; provided that no judicial officer authorized to solemnize marriages shall be required to solemnize any marriage if to do so would violate the judicial officer's sincerely held religious beliefs.

     (c)  For purposes of this section:

     "Religious organization" means a privately held corporation or other legal entity that both:

     (1)  Holds itself out publicly as adhering to specific religious beliefs; and

     (2)  Is operated consistently with those beliefs.

     "Small business" means a partnership or legal entity other than a natural person that either:

     (1)  Provides services that are primarily performed by an owner of the business;

     (2)  Has five or fewer employees; or

     (3)  Owns five or fewer units of housing in the case of a legal entity that offers housing for rent.

     §572-    Immunity from civil cause of action and other penalties.  Notwithstanding any other law to the contrary, no refusal to provide services, accommodations, facilities, goods, or benefits protected by this part shall result in any of the following:

     (1)  A civil claim or cause of action challenging the refusal under law; or

     (2)  Any action by any state or county agency to penalize or withhold benefits from any protected entity or individual under any laws of this State or its political subdivisions, including laws regarding employment discrimination, housing, public accommodations, educational institutions, licensing, government contracts or grants, or tax-exempt status.

     §572-    Construction.  This part shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the Constitution of the State of Hawaii and the United States Constitution."

     SECTION 5.  Section 489-2, Hawaii Revised Statutes, is amended as by amending the definition of "place of public accommodation" to read as follows:

     ""Place of public accommodation" means a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the general public as customers, clients, or visitors.  By way of example, but not of limitation, place of public accommodation includes facilities of the following types:

     (1)  A facility providing services relating to travel or transportation;

     (2)  An inn, hotel, motel, or other establishment that provides lodging to transient guests;

     (3)  A restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises of a retail establishment;

     (4)  A shopping center or any establishment that sells goods or services at retail;

     (5)  An establishment licensed under chapter 281 doing business under a class 4, 5, 7, 8, 9, 10, 11, or 12 license, as defined in section 281-31;

     (6)  A motion picture theater, other theater, auditorium, convention center, lecture hall, concert hall, sports arena, stadium, or other place of exhibition or entertainment;

     (7)  A barber shop, beauty shop, bathhouse, swimming pool, gymnasium, reducing or massage salon, or other establishment conducted to serve the health, appearance, or physical condition of persons;

     (8)  A park, a campsite, or trailer facility, or other recreation facility;

     (9)  A comfort station; or a dispensary, clinic, hospital, convalescent home, or other institution for the infirm;

    (10)  A professional office of a health care provider, as defined in section 323D-2, or other similar service establishment;

    (11)  A mortuary or undertaking establishment; and

    (12)  An establishment that is physically located within the premises of an establishment otherwise covered by this definition, or within the premises of which is physically located a covered establishment, and which holds itself out as serving patrons of the covered establishment.

     "Place of public accommodation" does not include the real property, buildings, or other areas owned or leased by a religious organization and regularly used for religious purposes, notwithstanding whether the religious organization permits the community to also use some or all of the real property, buildings, or other areas owned or leased by the religious organization.

     No place of public accommodation defined in this section shall be requested to reconstruct any facility or part thereof to comply with this chapter."

     SECTION 6.  Section 489-3, Hawaii Revised Statutes, is amended to read as follows:

     "§489-3  Discriminatory practices prohibition.  (a)  Unfair discriminatory practices that deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, including gender identity or expression, sexual orientation, color, religion, ancestry, or disability are prohibited.

     (b)  Notwithstanding any other law to the contrary, and except as provided in subsection (c), no individual, sole proprietor, or small business shall be required to:

     (1)  Provide goods or services that assist or promote the solemnization or celebration of any marriage or civil  union, or provide counseling or other services that  directly facilitate the perpetuation of any marriage  or civil union; or

     (2)  Provide housing or lodging to any couple,

if providing such goods, services, housing, or lodging would cause such individuals, sole proprietors, or owners of such  small businesses to violate their sincerely held religious  beliefs.

     For the purpose of this subsection, "small business" means a legal entity other than a natural person that provides services that are primarily performed by an owner of the business; or a legal entity that has five or fewer employees; or in the case of a legal entity that offers housing or lodging for rent, that owns five or fewer units of housing or lodging.

     (c)  Subsection (b) shall not apply if a party to the marriage or civil union is unable to obtain any similar goods or services, or housing or lodging elsewhere, without substantial hardship.

     (d)  Notwithstanding any other provision in this chapter, no refusal to provide goods, services, facilities, privileges, advantages, or accommodations pursuant to subsection (b) shall constitute an unfair discriminatory practice and shall not result in any civil or criminal claim or cause of action challenging such refusal, nor result in any action by the State or any of its political subdivisions to penalize or withhold benefits or privileges, including but not limited to tax exemptions or governmental contracts, grants, or licenses, from any protected entity or individual."

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Religious Freedom; Public Accommodations; Marriage.

 

Description:

Provides that government should not substantially burden religious exercise without compelling justification.  Establishes protections for religious freedom, including in the laws concerning public accommodations and marriage.

 

 

 

 

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