A bill purporting to forbid “government limitations on the exercise of religion” now only needs Gov. Jim Justice’s signature to become law after Senate action late Tuesday.
House Bill 3042, also known as the Religious Freedom Restoration Act, passed the Senate on party lines after the chamber suspended constitutional rules to advance the bill.
The bill, which drew fierce opposition during a public hearing last week, was only passed by the House of Delegates Monday morning.
Sen. Amy Grady, R-Mason, presented the bill on the Senate floor. She said the bill would prohibit the government from treating religious persons or institutions more restrictively than comparable secular institutions or persons and create a legal standard.
“The bill also establishes a standard called the compelling state interest test for courts to use when evaluating whether the government has infringed on the freedom of religion,” Grady said. “This judicial standard already applies to all federal laws and is in place in most states.”
Grady went on to highlight a clause that clarifies, “nothing in the new section may be construed to create a defense to protect actions to end the life of an born or unborn person.” She finished by stating that the bill is functionally identical to a 2021 law passed in South Dakota that has not been challenged successfully.
Sen. Mike Woelfel, D-Cabell, asked for clarification on the bill’s purpose, using the closure of churches during the COVID-19 lockdowns as an example.
“As I understand the bill, one of the things that it would do, if I’m correct, would be if there was another COVID outbreak, prevent the state from closing my church and preventing me from exercising my freedom of religion, or as the bill puts it, the exercise of my freedom of religion, is that correct?” Woelfel asked.
“Yes. If other secular institutions are left open, such as movie theaters, shopping malls, casinos then churches cannot be closed,” Grady replied.
Woelfel went on to voice his opposition to the bill, and raised a concern that the clause relating to ending the life of an unborn or born person was designed to discriminate against the Jewish faith. The Torah holds that life begins at the first breath, and Jewish sources explicitly state that abortion is not only permitted but is required should the pregnancy endanger the life or health of the pregnant individual.
“I submit to you the reason that’s in this bill is to discriminate against one group of people. They have the same right to exercise their freedom of religion,” Woelfel said. “Page one we protect the people that see the world the way we do, if we’re Christians, and then page two we deny that same freedom to the Jewish faith. I’ll tell you right now, that’s not going to stay under strict scrutiny. That is not gonna hold up, that will declare this bill unconstitutional. A magistrate court will figure that one out. So that’s what happens when we get in a hurry, respectfully.”
Grady argued that the bill is not for attacking, but rather “a shield” to protect more people in West Virginia. She pointed to similar laws in states across the country that have been in place for more than thirty years without issue.
“This is not a tool to use for discrimination,” Grady said.
Woelfel also raised concerns that the bill would allow challenges to vaccine requirements, as well as existing nondiscrimination ordinances in several cities across the state.
Also known as fairness laws, the ordinances passed by individual municipalities protect LGBTQ people from discrimination in housing, employment and public accommodations.
West Virginia has no statewide anti-discrimination law for its LGBTQ residents.
Sen. Mike Caputo, D-Marion, echoed Woelfel’s concerns.
“There’s 17 cities at least that have adopted fairness ordinances that I believe are in true jeopardy if they are challenged, if this bill passes,” Caputo said. “They’re little rural areas like Sutton, all the way to our biggest cities like Charleston and Huntington and everything in between. We talk about how we want local government to have local control and make local decisions, until it’s something that we don’t like.”
Sen. Ryan Weld, R-Brooke, argued that the legal test the bill establishes would work to protect existing nondiscrimination ordinances passed by cities and towns. He pointed to cities with similar ordinances in Texas, Florida and South Dakota – all of which have passed similar “religious freedom” bills – and argued that by passing such ordinances, those cities have made such protections a compelling governmental interest.
“If someone were to have a case against a city that had a nondiscrimination ordinance that included that as protected class, the compelling governmental interest would have been to include that protected class,” Weld said. “So because that exists, this piece of legislation cannot be used to, in my opinion, overturn a city’s nondiscrimination ordinance.”
Caputo also expressed frustration that laws like House Bill 3042 go against the purported interest of attracting people to move to the state in the interest of economic development. He said the young people he spoke with were dismayed by this type of legislation.
“They can’t believe we’re even talking about stuff like this. They want a more inclusive West Virginia. They don’t want to be having these kinds of discussions. They just want things to be normal for everybody, regardless of how they feel about certain issues and how they love maybe a little differently than most of us in this room,” Caputo said.
“I’m gonna have to go home and hear about this, of how silly a bunch of old people are talking about the future West Virginia, and how we think it should look,” he continued. “Not how it is, not how the future wants it to be, but how we think it should look and we should make that perfect little picture and go home to our perfect world and I’d like none of this exists.”
Grady argued that such laws in other states have not impeded economic development.
“As a matter of fact, a few, most of the places still show growth,” she said. “Florida, Oklahoma, Arizona, Illinois, North Dakota. They’ve all shown tremendous growth when it comes to economic development and nothing has impeded that growth based on this law.”
The bill passed 30 to 3 along party lines, with one senator absent.
