Religious Freedom, Guarantees

Enacts the Religious Freedom Restoration Act, which provides that
the State and counties cannot enact laws that substantially
burden the exercise of religion in the absence of a compelling
state interest and a showing that the law is the least
restrictive one to accomplish that interest.

HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  This nation was founded, in large part, by
 2 people who sought the liberty to practice their religions without
 3 impediment.  This is reflected in both our history, in which the
 4 Pilgrims, the Puritans, Catholics, and Quakers came to America in
 5 search of religious freedom, and also in our federal
 6 constitution.  The right to free exercise of religion is
 7 contained in the very first amendment to the United States
 8 Constitution, and has been described as America's "first
 9 freedom."
10      This "Free Exercise" clause has been the source of
11 substantial protection for believers and non-believers over the
12 years.  Religious freedom was guaranteed, regardless of momentary
13 changes in popular sentiment.  In 1963, protection of religious
14 freedom under the Free Exercise clause reached its zenith with
15 the United States Supreme Court decision in Sherbert v. Verner,
16 374 U.S. 398.  In this case, a member of the Seventh-Day
17 Adventist church, who was forbidden by her religion to work on
18 Saturday, their Sabbath, was discharged by her employer.  She
19 then sought unemployment compensation from her state, which was

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 1 denied on the grounds that the unemployment insurance statute did
 2 not provide an exemption for religious beliefs.  After extended
 3 litigation, the case reached the United States Supreme Court.
 4 The Court held that the statute was unconstitutional as there was
 5 no compelling state interest that justified the substantial
 6 infringement on her first amendment constitutional right.
 7      In 1990, another United States Supreme Court case seemed to
 8 take back some of the ground reached in the Sherbert case.  In
 9 the case of Employment Division v. Smith, 110 S.Ct. 1595, a
10 Native American drug counselor was fired from employment due to
11 peyote use.  The peyote was used for religious purposes.  The
12 counselor applied for unemployment benefits but was denied them
13 due to the reason for termination.
14      The Supreme Court held that the Free Exercise clause cannot
15 be used to challenge a general law unless the general law was
16 enacted to interfere with religion.  The Court declined to use
17 the compelling state interest/substantial infringement balancing
18 test of Sherbert.
19      In response to this apparent cutting-back of religious
20 protection, in 1993 Congress enacted the Religious Freedom
21 Restoration Act, 42 USCA 2000bb et seq.  This Act applied a
22 standard quite similar to Sherbert, holding that government could
23 not place a substantial burden on a person's exercise of religion

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 1 unless the government could demonstrate a compelling state
 2 interest and the law is the least restrictive means of furthering
 3 that interest.
 4      Proponents of religious freedom who had trusted that the
 5 Religious Freedom Restoration Act would prove a bulwark to their
 6 faith were daunted by the 1997 case of Boerne v. Flores, 117
 7 S.Ct. 2157.  In that case, a Catholic archbishop applied for a
 8 building permit to enlarge his church, which was denied by local
 9 zoning authorities due to a local historic preservation
10 ordinance.  Suit was filed by the archbishop, based on the
11 Religious Freedom Restoration Act.  The archbishop lost at the
12 trial level, won at the first appellate level, and lost at the
13 United States Supreme Court on the ground that the Religious
14 Freedom Restoration Act was unconstitutional as it exceeded
15 Congress' power.  Specifically, the Court held that Congress
16 relied on the Fourteenth Amendment to the Constitution in
17 imposing its requirements on the states, but that the enforcement
18 right stated in section 5 of the Fourteenth Amendment is only
19 remedial, and cannot establish new substantive rights.
20      The same impediments to the Religious Freedom Restoration
21 Act do not exist at the state level.  The State is free to adopt
22 this type of legislation for itself as it is not relying on the
23 Fourteenth Amendment for implementation, but on the State's own

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 1 constitutional guarantees of religious freedom as set forth in
 2 article 1, section 4 of the state constitution, and its
 3 constitutional guarantee of equal protection under the law,
 4 established in article I, section 5.
 5      The purpose of this Act is to enact Hawaii's own Religious
 6 Freedom Restoration Act to restore the compelling interest test
 7 previously applicable to Free Exercise cases, by requiring that
 8 government actions that substantially burden the exercise of
 9 religion be demonstrated to be the least restrictive means of
10 furthering a compelling state interest.
11      SECTION 2.  The Hawaii Revised Statutes is amended by adding
12 a new chapter to be appropriately designated and to read as
13 follows:
14                             "CHAPTER
16         -1 Findings.  The state constitution guarantees the
17 free exercise of religion as an inalienable right.  Laws that are
18 facially neutral in application can be as burdensome on religions
19 as laws that are overtly so.  The State should not substantially
20 burden religious exercise without compelling justification to do
21 so.
22         -2 Free exercise of religion protected.(a)  Neither
23 the State nor the counties shall substantially burden a person's

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 1 exercise of religion, even if the burden arises from a law of
 2 general applicability, except as provided in this section.
 3      (b)  The State or a county may substantially burden a
 4 person's exercise of religion only if it demonstrates that the
 5 application of the burden to person is:
 6      (1)  In furtherance of a compelling governmental interest;
 7           and
 8      (2)  The least restrictive means of furthering that
 9           compelling governmental interest.
10         -3 Judicial relief.  A person whose religious exercise
11 has been burdened in violation of this chapter may assert that
12 violation as a claim of defense in a judicial proceeding and
13 obtain appropriate relief against the appropriate governmental
14 entity.  If a person substantially prevails, the governmental
15 entity shall pay for the person's costs and attorney fees.
16         -4 Applicability.  This chapter shall apply to all
17 state and county laws, ordinances, and rules.
18         -5 Establishment clause unaffected.  Nothing in this
19 chapter shall be construed to affect, interpret, or in any other
20 way address the article I, section 4 of the state constitution
21 relating to the establishment of religion."
22      SECTION 3.  This Act shall take effect upon its approval.
24                           INTRODUCED BY: ________________________

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