House Judiciary Committee Recommends Updated Religious Freedom Restoration Act
CHARLESTON – A bill to provide West Virginians with religious protections from government interference is on its way to the floor of the House of Delegates, but opponents say the bill is an end run around local non-discrimination ordinances and could give the state a black eye.
The House Judiciary Committee recommended for passage Wednesday afternoon a committee substitute for House Bill 3042, forbidding excessive government limitations on the exercise of religion.
HB 3042 is the latest iteration of a bill also known as the Religious Freedom Restoration Act (RFRA). The bill provides a test for courts for determining whether a resident’s religious freedom was violated by the state, county, or city government.
According to the bill language, it states that no state or local action can “substantially burden a person’s exercise of religion” unless the government can show that a law, rule, ordinance, or order is essential to a compelling government interest and is the least restrictive way to further that interest. The government would be prohibited from treating religious conduct differently than non-religious conduct with similar risks or similar economic need or benefit.
The bill allows someone who believes their religious freedom has been violated by state or local government to file suit. The bill also applies to all laws, ordinances, and statutes either being considered or already on the books.
“It is a judicial test,” said House Judiciary Committee Vice Chairman Tom Fast, R-Fayette. “This is not an anti-discrimination bill whatsoever. It is a bill that could guide a court if someone is being discriminated against.”
According to the National Conference of State Legislatures, there are 20 states that have enacted RFRA laws since 1993 and another 16 states this year that have introduced similar bills or amendments to existing laws. Indiana was the latest state to pass RFRA in 2015.
“What this bill does is it places limitations on government,” said Del. Chris Pritt, R-Kanawha. “This bill poses limitations on what government can do to discriminate against people on religious grounds … this bill is not meant to just protect the religious majority. What this bill does is it actually goes and protects religious minorities. That’s what it should be doing. There shouldn’t be any discrimination against any religion.”
But opponents see the bill as a way to overturn housing and employment non-discrimination ordinances adopted by cities and towns across the state. These laws are designed to prohibit discrimination based on sexual orientation or gender identity, also called fairness laws. According to Fairness West Virginia, an LGBTQ rights advocacy organization, there are 18 cities with fairness laws, with Fairmont being the most recent city to adopt an ordinance at the end of 2022.
“There’s an undercurrent of what this bill could do to non-discrimination ordinances, and that’s how it’s been used in other states … This bill potentially puts every code section and every municipal ordinance under attack,” said Del. Joey Garcia, D-Marion. “I think what’s at issue here are individual human rights to have a job, to have housing, to enter into commerce, to obtain medical care. This is non-religious conduct; this is just being a human being. That’s what I’m afraid that this bill could be used to attack.”
RFRA has been introduced for many years in the Legislature and has gone by different names. The last time the issue came for a vote was 2016 with House Bill 4012. Former Republican House Speaker Tim Armstead was a proponent of the bill.
“Religious freedom is a fundamental right under the First Amendment of our Constitution,” Armstead said in a 2016 press release after the House passed the bill. “This bill will give state courts a balancing test that guides judges in considering cases alleging that the action of a governmental body has violated a citizen’s deeply held religious belief. In making such a determination, this legislation will require that such court take every West Virginia citizen’s rights and freedom seriously.”
The bill had a different story in the state Senate, where it was voted down 7-27 that year after opponents of the bill were able to successfully amend into the bill protections for the LGBTQ community. Speaking on the Senate floor for the amendment to HB 4012, former Senate Majority Leader Mitch Carmichael – who went on to become Senate President in 2017 – spoke tearfully about his concerns about the message the bill was sending to the nation.
“I just think this sends the wrong message,” Carmichael said. “I think we need to value the human dignity and the goodness in people … I don’t want us to go down this path.”