Free Exercise of Religion

Adds a new chapter to the Hawaii Revised Statutes to codify the
protection of the free exercise of religion.

THE SENATE                              S.B. NO.           1447
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature finds the state constitution
 2 recognizes the free exercise of religion.  Laws that are facially
 3 neutral toward religion, in their application, may place burdens
 4 on religious exercise.  Government should ensure that religious
 5 exercise is not unduly burdened without compelling justification.
 6      The legislature also finds that, under its police powers,
 7 the legislature may create statutory protections that codify and
 8 supplement rights guaranteed by the Hawaii Constitution.
 9      The compelling interest test, as set forth in Wisconsin v.
10 Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398
11 (1963), is a workable test for striking a sensible balance
12 between religious liberty and competing government interests.
13      The purpose of this Act is to add statutory protection to
14 the free expression of religion.
15      SECTION 2.  The Hawaii Revised Statutes is amended by adding
16 a new chapter to be appropriately designated and to read as
17 follows:
18                             "CHAPTER
19                     FREE EXERCISE OF RELIGION

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                                     S.B. NO.           1447

 1          -1  Definitions.  As used in this chapter, unless the
 2 context requires otherwise:
 3      "Demonstrates" means to provide evidence.
 4      "Exercise of religion" means an act or refusal to act that
 5 is substantially motivated by religious belief, whether or not
 6 the religious exercise is compulsory or central to a larger
 7 system of religious belief.
 8      "Government" includes the State and any county of the State,
 9 or any board, commissioner, or agency thereof.
10          -2  Free exercise of religion protected.(a)  Free
11 exercise of religion is a fundamental right that applies in this
12 State even in instances where laws, regulations, or other
13 governmental actions are facially neutral.
14      (b)  Except as provided in subsection (c), government shall
15 not substantially burden a person's exercise of religion even if
16 the burden results from a rule of general applicability.
17      (c)  Government may substantially burden a person's exercise
18 of religion only if it demonstrates that the burden to the person
19 is both: 
20      (1)  In furtherance of a compelling governmental interest;
21           and
22      (2)  The least restrictive means of furthering that
23           compelling governmental interest.

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                                     S.B. NO.           1447

 1      (d)  A person whose religious exercise is burdened in
 2 violation of this section may assert that violation as a claim or
 3 defense in a judicial proceeding and obtain appropriate relief
 4 against the government.  A party who prevails in any action to
 5 enforce this chapter against the government shall recover
 6 attorney fees and costs.
 7      (e)  The term "substantial burden" is intended solely to
 8 ensure the act is not triggered by trivial, technical, or de
 9 minimus infractions.
10          -3  Applicability.(a)  This chapter applies to all
11 state and county laws and ordinances and the implementation of
12 those laws and ordinances, whether statutory or otherwise, and
13 whether adopted before or after the effective date of this
14 chapter.
15      (b)  State laws that are adopted after the effective date of
16 this chapter are subject to this chapter unless the law
17 explicitly excludes application by reference to this article.
18      (c)  This chapter shall not be construed to authorize the
19 government to burden any religious belief."
20      SECTION 3.  If a provision of this Act or its application to
21 any person or circumstance is held invalid, the invalidity does
22 not affect other provisions or applications of the Act that can
23 be given effect without the invalid provision or application, and

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                                     S.B. NO.           1447

 1 to this end the provisions of this Act are severable.
 2      SECTION 4.  This Act shall take effect upon its approval.
 4                           INTRODUCED BY:  _______________________