The Third Reading of HB 4012, the West Virginia Religious Freedom
Restoration Act before the House of Delegates – February 11, 2016
I think no bill we have received thus far in this Chamber has been the victim of more misinformation, more stoning than has HB 4012. It’s been characterized as a license to discriminate, and I would suggest to you that it is no more a license to discriminate than the First Amendment of our sacred U.S. Constitution and Article 3, Section 15, of our own State’s Constitution. It’s been alleged that we are creating a new clause of action by this act. Ladies and gentlemen, this clause of action has been in place ever since the U.S. Constitution was adopted and ever since Article 3, Section 15, of the West Virginia Constitution has been adopted, because those are the predicate for any type of claim that this bill seeks to establish, a test to determine whether that claim has [been] met.
I don’t need to remind you that the pertinent part of the First Amendment of our sacred Constitution states, “Congress shall make no law respecting the establishment of religion or prohibiting the free exercising thereof.”
It may not be quite as familiar to you, but our own Constitution states, “No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever nor shall any man be enforced, restrained, molested or burdened in his body or views or otherwise suffer on account of his religious views or beliefs.”
I think it is significant that our own State Supreme Court in 1966 recognized that our State Constitution should be construed in a more broad way than the US Constitution. In other words, the protections it provides for our exercise of religion are even broader than even those of the U.S. Constitution. So what does this rule do? It is contained basically on two pages. We talked a great deal about it yesterday, but I am just going to go through it really quickly.
It essentially establishes a purpose which is to codify what’s called a “compelling interest test” and a strict scrutiny standard that the United States Supreme Court adopted in 1963. Not recently, but 1963. Confirmed in a later case and affirmed in West Virginia in 1966, as I indicated, when our Court stated that our own State Constitution gives us greater protection than the United States Constitution.
It contains simply two definitions: the first, exercise of religion; and the second defines what State action is. Its focus is to protect the exercise of religion from State action and establish a test when those two forces come into conflict. The test is set forth which is essentially the test the United States Supreme Court established. The test essentially is that an individual has to establish a sincerely held religious belief and that the State has done something to substantially burden the exercise or practice of that belief. Though the focus shifts at that point and the State, whether it be a county, city or local bureau or agency, can show it has a compelling State interest that it needs to enforce; and it also has to show, though, that the means that it chose to enforce that are the least restrictive, that means effect significantly, a sincerely held religious belief. That’s the test.
There’s no reference in here to give anyone priority over anyone else. There’s no encouragement to discriminate in any way. It’s a test that would apply in every case that these two forces come into contact. It provides that the person with the sincerely held religious belief can go to court to have a determination under that test as to whether that religious belief has been substantially burdened and that there is no compelling State interest that overrides that interest. And make no mistake about this, there have been many cases where the determination has been that there is a compelling State interest and that the least restrictive means of enforcing that State interest has been appropriately utilized. But, the relief that is available to the individual who asserts that their religious belief has been substantially burdened is injunctive in declaratory relief and, if prevailed, if appropriate attorney fees and costs are reimbursed to that person for the cost of that proceeding. That’s it. That’s basically it. Those two pages contain the bill.
Now there’s been some allegations that this is somehow new, that this has been launched as an effort to discriminate against a particular group or a particular religious belief. This, as I indicated earlier, goes back to 1966 and the case of the Supreme Court in West Virginia with the State Vs Everly. In that case a gentleman from Monongalia County had been sentenced to contempt of court for ten days and sentenced to ten days in jail because he simply refused to serve on the grand jury. The gentlemen in that case was a member of the Jehovah’s Witnesses and, in fact, was a minister of that congregation. After the Court considered all the factors that I just outlined, they concluded that there was no indication that his refusal would affect the peace and safety of the State and that therefore there was no compelling interest to force him to serve on that jury.
I really apologize. I think it is necessary to give you a brief overview of the history so you can understand when someone says that this is something new, that this is something that’s just been brought out as a weapon to effectively penalize some group that that’s not the case. We’ve had this case in our Constitution and in the United States Constitution. Here in this State since 1966 and in the State Vs Riddle case in 1981.
The reference to the United States Supreme Court Case, the Yoder case, in confirming that this delicate balancing test must be applied when compelling State interest runs into conflict with the free exercise clause. And the Court observes that there can be no doubt on some cases the State’s interest will override even the most sincerely held religious convictions, and the example given by the court in that case, they say there was no question that a religious sect, which incorporates human sacrifice as an integral part of its ritual, will be forbidden to engage in such a ritual even if the individuals are consenting adults. The Court went on to say that even religious practices which merely expose people to danger have been prohibited.
The Court does say, and I think this is significant, that they choose to define religion in the most broader of the definitions that the Supreme Court has enunciated rather than the narrower definitions, rather to broadly construe the religion. There have been cases, in other words, where there hasn’t been an orthodox type of religion, conscientious objector cases which coincided in that. The Court says sincerely held convictions which form the basis for their moral and ethical aspirations upon which a person structures his life though not a part of orthodoxy or an organized church will be protected by both the United States Constitution and the West Virginia Constitution.
In 1988 the Court took up the case in the Matter of Russell Allen Kilpatrick. This was the blood test you may have heard about that challenged the use of a standard blood test to determine if there was syphilis present in order to obtain a marriage license. The individuals involved in this case were members of the Universal Life Church, and they were also ordained ministers. The Court confirmed again that it is well-established that a compelling State interest is necessary to justify inhibiting freedoms pursuant to the First Amendment. This particular case did not prevail, but they had an opportunity for this test to be applied in Court to determine whether or not their religious beliefs were substantially burdened without a compelling interest to justify that. And I think it’s important for you to understand that the mere enunciation of the test will not guarantee what the outcome will be.
There have been many cases in which the challenging party, the people attempting to establish that their religious belief has been substantially burdened have not prevailed. This is not a one-sided, automatic result, it is simply a fair way, simply a predictable test that everyone is entitled to have applied in the case where religious belief is in conflict with State action.
The first case that this really came from was what’s called the Sherbert case of the 1963 U.S. Supreme Court. That’s where it all started, and I think it is important to understand from this as to why we need this particular statute. In that case, it involved a member of a Seven Day Adventist Church; and that person, a lady, was discharged from her South Carolina employer because she would not work on Saturday, her Sabbath day. She sought unemployment benefits, they were denied. She went to Court, and the Court held that there was not a sufficient reason to deny her those benefits, applying this test and weighing it out, this balancing test that we seek today to codify. This is what Justice Douglas said in that case,
“Many people hold beliefs alien to the majority of society, beliefs that are protected by the First Amendment which could easily be trod upon under the guise of police or health regulations reflecting the majority’s view.”
He cited a number of examples where this could happen. He cited the religious scruples of Muslims requiring them to attend a mosque on Friday and pray five times daily. The scruples of the Jehovah’s Witness that teach you should go door to door from time to time distributing religious pamphlets. A Quaker, the religious scruples of a Quaker compelling them to refrain from swearing and affirm instead. The religious scruples of a Buddhist requiring them to refrain from partaking of any flesh, even fish. And Justice Douglas observed the result turns not on the degree of injury, which may indeed be non-existent by ordinary standards, the harm is the interference with the individual’s scruples or conscience an important area of privacy which the First Amendment fences off from the government. In that same case, Justice Stewart in a concurring opinion, in other words he agreed with the outcome, he said,
“I am convinced that no liberty is more essential to the continued vitality of the free society which our Constitution guarantees than is the religious liberty protected by the free exercise clause explicit in the First Amendment embedded in the 13th which makes it applicable to the states.”
That case was followed by a case in 1972 called Wisconsin Vs Yoder. In that case members of an Amish Mennonite church were actually convicted of violating the compulsory school attendance law in Wisconsin. After considering all the factors, and that is what is important about this. You have need to understand that this test, by codifying this test, we aren’t guaranteeing any type of outcome. All cases that go on this test are fact specific. In other words, the facts are what govern what the outcome is going to be. In this case, the Wisconsin law required attendance until age 16, and the evidence in the case where the Amish continued to provide informal education of their students after they stopped attending public school. In fact they were more effective in their education in terms of the quality of instruction which they received. So this test was again applied by the Supreme Court.
Now where we got into problems was in 1990 in a case called Employment Division Vs Smith. This involved two Native American counsellors at a drug rehab facility. They used peyote as part of their religious sacrament, and they were fired. They sought unemployment benefits similarly to the lady in South Carolina, and this happened in Oregon; and ultimately the case abandoned this compelling interest strict scrutiny test and held against these two gentlemen.
Well, that provoked quite a response; and the federal government in 1993 considered a religious freedom act on the federal level. It was introduced by Congressman Chuck Shumer who then was a Congressman from New York in the House of Representatives and later became a U.S. Senator. A companion bill was introduced in the Senate by Senator Ted Kennedy that same day. It passed the U.S. House unanimously and nearly unanimously in the U.S. Senate. Three senators voted against it. And President Bill Clinton signed it into law. At the time, Vice President Gore said at the signing ceremony,
“This legislation is something all Americans can be behind.”
That law reinstated that test which we talked about which is in the bill that is before you on a federal basis. It mandated strict scrutiny be used to determine whether the free exercise clause in the First Amendment has been violated. There was a subsequent case in 1997 in which the Supreme Court said this only applies to federal action, federal government action. And so there was a gap after that as to whether states are bound by the same test. So since that time a number of states now numbering 21 have adopted this by statute, and another ten or eleven, I’m not sure if by my research whether it was ten or eleven, have actually embraced this through their Court decisions. So I think it is fair to say that a majority of states in this country use this type of test in any case in which there is a conflict between a person’s religious freedom and State action.
I’ve done some research to see how prolific the cases have been. The research indicates that over the twenty plus years, let me see, in 1993, I believe Connecticut and Rhode Island were the first states to adopt a similar type that’s been called the RFRA Religious Freedom Restoration Act. In those twenty-one states during that twenty-year period, there have been a total of 147 cases. Over twenty years, twenty-one states, only 147 cases. In a few of these states, there have been no cases. For instance, in Rhode Island, which as I indicated adopted this law back in 1993, there have been no cases at all. Arizona has none, Indiana’s had none, Kansas has had none, Kentucky has none, Louisiana has none, Mississippi has none. As I said Rhode Island had none.
And most of these cases could be categorized in one of two categories: prisoner’s rights cases. And I think it is important to note that in our bill, we’ve excluded those type of cases from the operations case. About 30% of the cases using RFRA in this twenty plus year period have been prisoner cases. About 36% have been churches or religious organizations and most of those have involved zoning issues. Whether the zoning of a local locality has affected the ability of the church to either locate or operate some program there. There have been about 4% involving criminal defendants, about 27% involving private citizens, and 2% involving governments, and only 1% involving private schools.
This statute before you, ladies and gentlemen, is not something new. The cause of action was established when our constitution was adopted and it has been utilized since that time. We are not creating a new cause of action. In fact, we’re really not restoring anything because it is arguable here in West Virginia that the test we are installing into our code has been consistently applied since as early as 1966. And there’s no evidence that even when the Supreme Court for that brief period of time abandoned it, or that West Virginia turned its back on that test.
So, ladies and gentlemen, this is a good opportunity to include a predictable standard that protects everybody in our laws so that any judge that’s faced with a challenge will know exactly what the test is that has to be applied, what the standards are, and those standards will be applied uniformly regardless of whether it’s a Muslim that is challenging, or a Protestant that is challenging, a Mennonite that’s challenging, a Quaker that’s challenging. Anybody that needs to have their case heard in Court will have the same standards applied. And for that reason, Mr. Speaker, I urge passage.
As has been mentioned earlier, in 2012, HB 2657 was introduced by a bipartisan group of three Democrats and two Republicans. I wasn’t here during that time, but apparently the allegations that have been made today were not raised at that time, the allegations that the motivations were prejudice, hatred, bigotry. Because I suspect that had those allegations been raised, over 90 of their colleagues would not have voted for that bill. So I guess I have to ask those people, many of whom are here, at least four of them have spoken against the bill here today, what was their motivation at that time? Because the bill is substantially the same as what you have here before you.
Actually this is a little thinner in terms of volume. We’ve taken out a couple of definitions, the remedies are the same, the cause of action is the same, the test is the same. It is the same. So what was different? I guess you could say it was a different time, and we do live in a time when people say hurtful things to one another. Would that we could adopt a bill that would end that. Wouldn’t that be terrific? If we could somehow outlaw hurtful things. It’s not just one group that is the victim of hurtful things. Many of us have voted one way in connection with some of the controversial bills that have been before us. Hurtful things have been cast our way, and there’s no way to change that. It’s going to happen. It’s an occupational hazard, I suppose.
I think that one way to illustrate and get through some of the misconceptions about this bill is to take an example of how it would apply. And we’ve heard a lot of hypotheticals, they’ve been, in my view, kind of unbalanced. Let’s start with a hypothetical. We are in a community where there are lots of businesses. Two of which are side by side. One of them is a photographer, one of them is a sign maker. Both of the gentlemen who run these businesses go to the same church. They sing out of the same hymnal, they read out of the same bible. It just so happens that one of them is gay. The sign maker is gay, the photographer is not.
On a particular day, the photographer is approached by a couple who happen to be gay who want him to photograph their wedding. This gentleman has a sincerely held religious belief, rightly or wrongly, that the conduct of participating in that ceremony would violate his religious principles. That same afternoon, a pair of Nazi Skinheads come into the sign shop. They say to the operator of the sign shop, “We’re going to undertake a campaign to educate the people of West Virginia. And we want you to prepare 200 billboard signs that say, ‘God hates Jews and gays.’” So this particular operator, this sign maker, is also a religious person. He’s gay, but he’s also religious. They’re not mutually exclusive. He’s read the bible, not for every verse but for the message. He reads Matthew 7:12, “In everything, therefore, treat people the same way that you want them to treat you for this is the law of the prophets.” To him the message is do unto others, treat everyone the same. Why should he be part of a campaign to encourage the people of this State that God hates Jews and gays. It violates a sincerely held religious principle. The gentleman who runs the photography studio has parsed his Bible and finds justification in the words of that Bible for his religious belief that he should not participate in this ceremony.
Now one thing that I have learned. It was a surprise to me growing up. I had an opportunity to be a door-to-door salesman after my freshman year in college. And I sold family bibles, bible dictionaries, children’s story books, and I went door to door. And it gave me an opportunity to talk to a lot of people about their religious beliefs. And it was amazing to me how many different beliefs there are out there. And one particular experience really impressed me, and that was a little old lady that I talked to. We got into a political talk, and she told me that the bible predicted the assassination of John F. Kennedy. Well, I was kind of blown away by that so she took the time to go through a verse here, a verse there, a verse over there. And sure enough, if you gave it some liberal construction – it didn’t mention John Kennedy, of course – but there was the prediction of the assassination of a leader of the Western world.
And I guess what that impressed upon me is that you could read the same material and get a different impression. You can read “judge not that you be not judged” and understand that the role of the judge is not you. And someday if there is a judgment day, which I believe is true, there will be a much more compassionate, wiser, understanding person in charge than me. Some people apparently believe they are rehearsing for that position, and they feel like it’s necessary for them to start working on that judgment ship right now.
The point is that we all have different views, and they can be sincere views. Now in this particular case, does this law, when you apply it to each of those situations, does that encourage that, that behavior? Let me just finish the story. In each case, the operator of the business said, “No. I’m not going to do it.” Does this law say to one or the other that they are right? No. It does not. Does it say to the sign maker that he’s right? No. Does it say it to the photographer? Again, no. And the story could end there. Now are some people going to have hurtful feelings in that case? Afraid so. Afraid so.
But let’s suppose the city or the county had an ordinance, and that ordinance says if you’re in business, you will serve everyone that comes into your business. And I don’t care what they look like or what their beliefs are you will serve those people. And if you don’t, we’re going to revoke your business license. And let’s suppose that each of those unhappy parties whose feelings are hurt go to the city council, the county commission, and say, “Here’s what’s happened. I want you to pull those business licenses.”
And the town council and the county commission says, “Well, that’s what our ordinance is, so we’re going to pull the business licenses.” Does this law say whether that is right or wrong? No. But if you are the person whose business license was pulled, you can go to Court; and you can have the judge apply the same standard to the photographer or to the sign maker to determine whether or not that ordinance is going to be enforceable or whether it is not enforceable. The same test will be applied in each case. They will be treated exactly the same by the judge. And the question is why we need that? Why do we need that?
And I agree with what’s been said here so far. So far our Courts have followed the test. So far they have, and we certainly hope that continues. But this is our opportunity to say to our Court system, “Here’s a fair and predictable standard we want you to apply because these situations may come along.” Not every day. Not every week. Not every month. But maybe they come along, and here’s the standard. And we will codify that just like the majority of States in this nation.
But there’s another reason. When I was following, during the Christmas season, I went to a Christmas reception, or perhaps for fear of hurting someone’s feelings, a holiday reception. And I was standing in a small group talking, and there was another group beside me talking. And I heard one of the persons say to another, “I went by your house recently. I didn’t see your manger scene our front. Why was that?” And the gentleman he was talking with said, “Well, I usually do that, but I wasn’t sure this year whether or not that was legal. And I wasn’t sure this year if I was going to run into any problem or whether or not someone was going to complain about that. And I just didn’t think it was worth the trouble or the risk to do it.
And that, that really caused me to pause for a minute and say, “You know we really live in a country of hyper-sensitivity. Instead of doing unto others as we’d have them do unto you, we are offended if somebody doesn’t believe exactly what we believe, or say what they say in just the right way.” This bill will, if not eliminate, at least reduce the chilling effect that the way our society has developed, the way we have become so paranoid about expressing the devotion that we feel to what is the foundation of this nation. And that’s religion. I mean, keep in mind why we have the First Amendment and why it’s first. It’s because those folks who came over here, many of whom suffered for their religious beliefs, and they wanted to be absolutely certain that the priority number one is that we protect peoples’ religious freedom.
And yet today there are many people who think “freedom of religion” is the same as freedom from religion. That we don’t want you to say the Pledge of Allegiance and include “under God.” That we don’t want you to put on your money “in God we trust.” There are those among us who are intolerant of those of us who hold those beliefs and cherish the connection we have to God in our religion in this country. And it’s those people who need to understand that we have rights, too. That we have rights, and that first among them is the right to express our religion – not just in church but wherever we go and however we live. And this is our opportunity to codify the test, not to say who’s right or wrong, but to codify the test that’s going to be applied in every situation where our rights come into conflict with government here in this State. Therefore, Mr. Speaker, I urge passage of this bill.