West Virginia's GOP supermajority House of Delegates passed a bill Monday that would create a test for courts to apply when people challenge government regulations they believe interfere with their constitutional right to religious freedom.
The bill passed after several Democrats expressed concern that the proposal could be used as a tool to discriminate against LGBTQ people and other marginalized groups. Democratic Del. Joey Garcia also asked whether the proposed law could be used to overturn West Virginia's vaccine requirements, which are some of the strictest in the nation.
One of the legislation's co-sponsors, Republican Del. Todd Kirby, said those questions would be up to the courts to decide — the bill only provides a judicial test for interpreting the law.
The Christian lawmaker provided some examples of instances when the government has, in his view, infringed on residents' religious rights. One example was vaccination requirements. Another was public school curriculum.
Kirby said teachers “are being forced to push the left’s agenda, the government’s agenda, within the war on traditional families with such things as promoting transgenderism, homosexuality in our classrooms."
“These policies are sold to the American public,” he said.
The bill stipulates that the government would not be able to “substantially burden” someone’s constitutional right to freedom of religion unless doing so “in a particular situation is essential to further a compelling governmental interest.”
In cases where the government can prove to the courts there is a “compelling interest” to restrict that right, government officials must demonstrate that religious freedoms are being infringed upon in “the least restrictive means” possible.
At least 23 other states have religious freedom restoration acts like the one being proposed in West Virginia. The laws are modeled after the federal Religious Freedom Restoration Act, signed in 1993 by then-President Bill Clinton, which allows federal regulations that interfere with religious beliefs to be challenged.
Eli Baumwell, advocacy director and interim executive director of the American Civil Liberties Union of West Virginia, said the 1993 federal law was designed to protect people, especially religious minorities, from laws that affected their ability to engage in personal practices of their faith. He said similar laws that have been passed by states in the years since have been applied very differently.
“Unfortunately, people have seized upon a good idea and turn it a shield into a sword,” said Baumwell, whose organization is opposed to the bill. “RFRAs today are promoted by organizations and ideologies and aren’t concerned about individual religious observances. They’re focused on circumventing laws that require fair and equal treatment.”
A similar bill failed in 2016 in West Virginia after lawmakers voiced concerns about how it could affect LGBTQ residents. Then-Senate Majority Leader Mitch Carmichael wiped away tears on the Senate floor as he spoke in support of the Democratic-proposed amendment that would bar the legislation from being used to discriminate against LGBTQ people.
In 2016, there were 64 Republicans and 36 Democrats in the West Virginia House of Delegates. In 2023, the GOP majority has expanded to 88 seats, with 12 Democrats in the body.
Before advancing this year's bill to the Senate, Republican lawmakers rejected a similar Democrat-proposed amendment to the one passed in 2016 with little discussion Monday. It would have protected nondiscrimination laws or ordinances that protect LGBTQ groups and residents.
Judiciary Vice Chair Republican Tom Fast said changes to the bill were unnecessary. He said the bill "does not determine who is a winner and loser and does not create a license to discriminate.”
Democratic Del. Joey Garcia wasn't buying it.
“It would not have hurt the bill if that were really true," he said of the Democrats' amendment.
Democrats later proposed a different addition to the bill that would require businesses to put a sign on their door notifying the public if they refuse to provide service to a specific group of people because of their religious beliefs. The amendment stipulated that any business that failed to display a sign and refused service to someone on religious grounds could face a maximum fine of $200.
“I think it's important that we let the public know exactly who the bigots are,” Democratic Del. Mike Pushkin said.
The amendment was rejected after Kirby likened the proposal to the antisemitic laws in Nazi Germany that required people to identify themselves as Jewish. He called the amendment “disheartening” and called it a “trick” that would lead to “violence” and “attacks.”
Pushkin, one of only a handful of Jewish lawmakers in the House, said he took “umbrage” with the comparison.
“It's absolutely nothing to do with that,” he said. “This is simply saying, those who would use this bill to promote hate, those who would use this bill to refuse service, should let people know ahead of time.”
Democrat Del. Ric Griffith, who is a Christian, voted against the bill after saying he was concerned about it being used to roll back of vaccination requirements for children. All 50 states have legislation requiring specified vaccines for students, but West Virginia is one of just a handful of states that doesn't allow for nonmedical exemptions.
"I sometimes think that when we become so certain of the virtue of our opinions, we often don’t realize how that discriminates against someone else,” he said.
The bill also dictates that the proposed law could not be used to permit access to abortion, which was banned by West Virginia lawmakers last year. The provision was included as abortion rights groups are challenging abortion bans in some states by arguing the bans — supported by certain religious principles — violate the religious rights of people with different beliefs.
