Report Title:

Religious Freedom, Guarantees

Description:

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.

2697

TWENTY-FIRST LEGISLATURE, 2002

 

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. This nation was founded, in large part, by people who sought the liberty to practice their religions without impediment. This is reflected in both our history, in which the Pilgrims, the Puritans, Catholics, and Quakers came to America in search of religious freedom, and also in our federal constitution. The right to free exercise of religion is contained in the very first amendment to the United States Constitution, and has been described as America's "first freedom."

This "free exercise" clause has been the source of substantial protection for believers and non-believers over the years. Religious freedom was guaranteed, regardless of momentary changes in popular sentiment. In 1963, protection of religious freedom under the free exercise clause reached its zenith with the United States Supreme Court decision in Sherbert v. Verner, 374 U.S. 398. In this case, a member of the Seventh-Day Adventist church, who was forbidden by her religion to work on Saturday, their Sabbath, was discharged by her employer. She then sought unemployment compensation from her state, which was denied on the grounds that the unemployment insurance statute did not provide an exemption for religious beliefs. After extended litigation, the case reached the United States Supreme Court. The Court held that the statute was unconstitutional as there was no compelling state interest that justified the substantial infringement on her first amendment constitutional right.

In 1990, another United States Supreme Court case seemed to take back some of the ground reached in the Sherbert case. In the case of Employment Division v. Smith, 110 S.Ct. 1595, a native American drug counselor was fired from employment due to peyote use. The peyote was used for religious purposes. The counselor applied for unemployment benefits but was denied them due to the reason for termination.

The Supreme Court held that the Free Exercise clause cannot be used to challenge a general law unless the general law was enacted to interfere with religion. The Court declined to use the compelling state interest/substantial infringement balancing test of Sherbert.

In response to this apparent cutting-back of religious protection, in 1993 Congress enacted the Religious Freedom Restoration Act, 42 USC §2000bb et seq. This Act applied a standard quite similar to Sherbert, holding that government could not place a substantial burden on a person's exercise of religion unless the government could demonstrate a compelling state interest and the law is the least restrictive means of furthering that interest.

Proponents of religious freedom who had trusted that the Religious Freedom Restoration Act would prove a bulwark to their faith were daunted by the 1997 case of Boerne v. Flores, 117 S.Ct. 2157. In that case, a Catholic archbishop applied for a building permit to enlarge his church, which was denied by local zoning authorities due to a local historic preservation ordinance. Suit was filed by the archbishop, based on the Religious Freedom Restoration Act. The archbishop lost at the trial level, won at the first appellate level, and lost at the United States Supreme Court on the ground that the Religious Freedom Restoration Act was unconstitutional as it exceeded Congress' power. Specifically, the Court held that Congress relied on the Fourteenth Amendment to the Constitution in imposing its requirements on the states, but that the enforcement right stated in section 5 of the Fourteenth Amendment is only remedial, and cannot establish new substantive rights.

The same impediments to the Religious Freedom Restoration Act do not exist at the state level. The State is free to adopt this type of legislation for itself as it is not relying on the Fourteenth Amendment for implementation, but on the State's own constitutional guarantees of religious freedom as set forth in article I, section 4 of the state constitution, and its constitutional guarantee of equal protection under the law, established in article I, section 5.

The purpose of this Act is to enact Hawaii's own Religious Freedom Restoration Act to restore the compelling interest test previously applicable to Free Exercise cases, by requiring that government actions that substantially burden the exercise of religion be demonstrated to be the least restrictive means of furthering a compelling state interest.

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

"CHAPTER

HAWAII RELIGIOUS FREEDOM RESTORATION ACT

§   -1 Findings. The state constitution guarantees the free exercise of religion as an inalienable right. Laws that are facially neutral in application can be as burdensome on religions as laws that are overtly so. The State should not substantially burden religious exercise without compelling justification to do so.

§   -2 Free exercise of religion protected. (a) Neither the State nor the counties shall substantially burden a person's exercise of religion, even if the burden arises from a law of general applicability, except as provided in this section.

(b) The State or a county may substantially burden a person's exercise of religion only if it demonstrates that the application of the burden to person is:

(1) In furtherance of a compelling governmental interest; and

(2) The least restrictive means of furthering that compelling governmental interest.

§   -3 Judicial relief. A person whose religious exercise has been burdened in violation of this chapter may assert that violation as a claim of defense in a judicial proceeding and obtain appropriate relief against the appropriate governmental entity. If a person substantially prevails, the governmental entity shall pay for the person's costs and attorney fees.

§   -4 Applicability. This chapter shall apply to all state and county laws, ordinances, and rules.

§   -5 Establishment clause unaffected. Nothing in this chapter shall be construed to affect, interpret, or in any other way address article I, section 4 of the state constitution relating to the establishment of religion."

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:

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