My testimony against WV RFPA



March 1, 2016

Members of the West Virginia Senate

State Capitol Complex
Charleston, WV 25305


RE:  H. B. 4012, relating to establishing the West Virginia Religious Freedom Protection Act

Dear Members of the West Virginia Senate:


Thank you for considering my testimony regarding H.B. 4012, which would endanger children and create new and insuperable barriers to common sense regulation of speech events, including parades, adult use zoning, and public gatherings.


By way of introduction, I hold the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University and I am a Resident Senior Fellow in the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania, where I specialize in church/state relations and constitutional law.  I have published and lectured extensively in the field, as well as successfully litigated cutting-edge religious liberty issues.  Before joining the faculty at Cardozo Law School, I clerked for Justice Sandra Day O’Connor at the United States Supreme Court and Judge Edward Becker of the United States Court of Appeals for the Third Circuit.


H.B.  4012 would create a state Religious Freedom and Protection Act (“RFPA”) which is partially modeled on the federal Religious Freedom Restoration Act (“RFRA”).   RFRA established an extreme standard never before adopted by the Supreme Court, forcing the government to defend all laws that “substantially burden” religious conduct by proving the law serves a “compelling interest” in the “least restrictive means.”


The West Virginia RFPA takes the RFRA standard and then extends it to “expression,” which would upend the standards for government regulation affecting speech.   Cities and counties and the state would not be able to enforce content-neutral laws like parade permits, limited zoning for adult uses, or restrictions on the use of public parks without being subject to a lawsuit under RFPA.  The freedom of speech requires protection and common sense.  RFPA is a far departure from common sense that will turn well-settled rules regarding speech, parades, and use of public parks into fair game for any believer to challenge.  The largest problem is that the government will be required to show that it is using the “least restrictive means” for this believer, and courts have tended to interpret that to mean this one believer can get an exemption assuming everyone else obeys the law.  It is a prescription for anarchy:

H.B. 4012’s breadth is extraordinary – it could be applied to nearly every law in the state, from any source.  It is nearly impossible to comprehend the infinite number of religious claims that might be brought under its banner.  I have no doubt a religious entity will raise the same arguments recently deployed in Louisiana to block a priest’s obligation to report known and ongoing child sex abuse.   to-decide-fri”>


These RFRA-style bills, including H.B 4012, are a recipe for rolling back the laws protecting West Virginia’s children. While I believe that passage of a state RFPA is bad for all citizens of the state of West Virginia, at the very least, any bill should remove from its ambit laws for the protection of children.  That is because state RFRAs—including but not limited to H.B. 4012—for which the religious groups have heavily lobbied nationwide for decades–will, wherever they are enacted, make it easier for Churches and their clergy culprits to “win” sex abuse cases. It will aid the religious groups in refusing to report abuse, to cooperate in investigations of abuse, and to provide discovery in civil suits alleging abuse. Simply stated, being religious should be no defense to abusing or otherwise harming children.


As the law is currently drafted it will open the door to a myriad of religious defenses enabling perpetuation and the cover-up of child sex abuse and the commission of child abuse and neglect.  For example, West Virginia currently does not have a religious exception to vaccination requirements for school-aged children. H.B. 4012 as currently drafted will create one—endangering the lives of children across the state. For these many reasons, states such as Pennsylvania have chosen to exempt laws protecting children entirely form their own version of RFRA. See, 71 Pa. Cons. Stat. Ann. §§2401-2407 (enacted  in 2002).


Finally, from the taxpayers’ perspective, this is an invitation to litigation—particularly at the local level–which all told could last years and cost millions.  In this economy, why would a legislature enact a law that is so obviously going to be heavily litigated, particularly with the bill’s focus on laws that merely regulate religiously-motivated conduct, and not religious beliefs—which are already protected fully by the free exercise clause of the First Amendment and Art. III, Sec. 15 of West Virginia’s state Constitution.


The only limits to this law’s application are the boundaries of lawyers’ creativity in representing religious individuals and institutions. I urge you to reconsider the passage, but at the very least the contours, of this bill. H.B. 4012, particularly as currently drafted, is unnecessary, and a danger to the children of West Virginia. Thank you for your time and consideration of my views.