On January 28, 2015, Hawaii introduced H.B. 1160, which prohibits the State or any county from burdening any person’s right to exercise religion absent that burden being the least restrictive means of furthering a compelling governmental interest. Hawaii is the sixth state to introduce religious freedom legislation in 2015, following Georgia, Indiana, Michigan, Utah, and Wyoming.
SECTION 1. The purpose of this Act is to ensure that strict scrutiny is applied in all cases where state action burdens the exercise of religion and to provide a claim or defense to a person whose exercise of religion is burdened by state action.
SECTION 2. Chapter 7, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
“§7- Exercise of religion; protected. (a) State action shall not burden any person’s right to exercise religion; provided that a burden shall be permissible if the burden results from a law or rule of general applicability and the burden to the person’s exercise of religion:
(1) Is essential to further a compelling governmental interest; and
(2) Is the least restrictive means of furthering that compelling governmental interest.
(b) A person whose exercise of religion has been burdened, or is likely to be burdened, in violation of subsection (a) may assert a violation or impending violation as a claim or defense in a judicial proceeding, regardless of whether the State or a county is a party to the proceeding. A person prevailing on a claim or defense under this section may obtain appropriate relief, including injunctive relief, declaratory relief, compensatory damages, costs, and attorney fees against the acting State or county.
(c) As used in the section:
“Burden” means any action that directly or indirectly constrains, inhibits, curtails, or denies the exercise of religion by any person or compels any action contrary to a person’s exercise of religion, including withholding benefits, assessing criminal penalties, assessing civil penalties, assessing administrative penalties, exclusion from governmental programs, and exclusion of access to governmental facilities.
“Compelling governmental interest” means a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion.
“Exercise of religion” means the practice or observance of religion, including the ability to act or refuse to act in a manner substantially motivated by a sincerely held religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
“State action” means the implementation or application of any law or other action by the State or any county.”
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
Freedom of Religion; Rights
Prohibits the State or any county from burdening any person’s right to exercise religion absent that burden being the least restrictive means of furthering a compelling governmental interest.