No Longer RFRA, What You Need to Know About W.Va.'s Religious Freedom Protection Act

Feb 29, 2016

More than two weeks after it was approved by the House of Delegates, senators are beginning to move on a bill that would codify a judicial standard for cases where plaintiffs argue the government has infringed on their religious freedoms. 

On first reading in the Senate on Monday, House Bill 4012 has seen some changes since it was approved in the House Feb. 11.

House Bill 4012 is no longer titled the West Virginia Religious Freedom Restoration Act, but instead has been changed to the West Virginia Religious Freedom Protection Act.

“It’s not restoration act here in West Virginia because we have nothing to restore," Senate Judiciary Chair Charles Trump said of his committee's version of the bill.

"The strict scrutiny and compelling state interest test that is in RFRAs that have been enacted in other states and the federal level did not have to be restored in West Virginia [because] that was our law under the Constitution and the cases that have been decided [here].” 

Trump said the bill does maintain it's sole purpose, "to codify the test under which courts are required to evaluate case[s]" where someone claims their religious freedoms are being "substantially burdened" by government action, but the committee has included what Trump calls "necessary changes."

Other changes the committee approved Friday include:

  • A more narrow definition of "substantially burdened"
  • An award of injunctive relief and no allowance for an award of attorneys fees and court costs for a plaintiff
  • Added language to protect churches and clerics who refuse to perform a service or ceremony or refuse to recognize a marriage that is contrary to their faith
  • Added language to make it more clear that the bill cannot be used as a tool to discriminate 

“I endeavored to make it clear as we possible could that we are not saying religious rights trump everything else. We’re not saying other rights are exempt from any trumping by religious rights or religious freedoms," Trump said. "We are trying to give the courts the mechanism by which they determine a balance on a case by case basis.”

Those opposed to the bill still believe the language is not enough to prevent discrimination should the bill become law, but some senators have expressed support for the House version and dissatisfaction with the committee amendments. 

The bill is scheduled for a vote Wednesday.