Text of HI HB 2181 (2016)

HOUSE OF REPRESENTATIVES H.B. NO. 2181 TWENTY-EIGHTH LEGISLATURE, 2016 STATE OF HAWAII A BILL FOR AN ACT relating to religious freedom. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: SECTION 1. The legislature finds that protecting religious freedom from government intrusion is a state interest of the highest order, especially in the aftermath of the Supreme Court of the United States' decision in Obergefell v. Hodges, 576 U. S. ___, 135 S. Ct. 2071, 191 L. Ed. 2d 953 (2015). In the Obergefell v. Hodges opinion, the Supreme Court held same-sex couples have a right to marry, but also noted that “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” In the wake of the Obergefell v. Hodges decision, leading legal scholars concur that conflicts between same-sex marriage and religious liberty are inevitable and, therefore, should be addressed through legislation. The legislature further finds that the State is obligated to take measures that advance this interest by remedying, deterring, and preventing government interference with religious exercise in a way that complements the protections mandated by the constitutions of the State of Hawaii and the United States. In particular, the State has an obligation to refrain from discriminating against those who maintain a belief that marriage is the union of one man and one woman based on religious and moral convictions. Individual and corporate views regarding marriage being the union of one man and one woman are often tied to sincerely held religious beliefs and moral convictions. Laws that protect the free exercise of religious beliefs and moral convictions about marriage will encourage private citizens and institutions to demonstrate tolerance for those beliefs and convictions and therefore contribute to a more respectful, diverse, and peaceful society. Moreover, Hawaii and the United States already have a history of accommodating religious exercise and establishing conscience protections based on religious and moral convictions. Most recently, when the legislature legalized same-sex marriage in the Second Special Session of 2013, special care was taken to include language that: (1) exempted clergy and officers of religious organizations authorized to solemnize marriages from having to solemnize any marriage in violation of their religious beliefs or faith; (2) exempted certain religious organizations and nonprofit organizations from having to provide goods or services in connection with solemnization of any marriage in violation of its religious beliefs or faith; and (3) granted these persons and organizations immunity from any civil or administrative liability for such failure or refusal. The purpose of this Act, which shall be known as the "Government Nondiscrimination Act", is to protect the free exercise of religious beliefs and moral convictions by prohibiting the State from taking any discriminatory action against a person based on the person's sincerely held religious belief or moral conviction, including the belief that marriage is the union of one man and one woman. SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows: "Chapter GOVERNMENT NONDISCRIMINATION ACT § -1 Definitions. For the purposes of this chapter: "Person" includes any individual or any corporation, company, sole proprietorship, partnership, society, club, organization, or association, except that such term shall not include medical providers, hospitals, clinics, hospices, nursing homes, or residential custodial facilities with respect to visitation, recognition of a designated representative for health care decision making, or refusal to provide life-saving and emergency medical treatment necessary to cure an illness or injury. "The State" means: (1) Any department, commission, board, agency, or agent of the State; (2) Any political subdivision of the State and any department, commission, board, agency, or agent of such political subdivision; and (3) Any individual or entity acting under color of state law. "State benefit program" means any program administered or funded by the State, or by any agent on behalf of the State, providing cash, vouchers, payments, grants, contracts, loans, or in-kind assistance. § -2 Protection of the Free Exercise of Religious Beliefs and Moral Convictions. (a) In General. Notwithstanding any statute, regulation, or order to the contrary, the State shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction that: (1) Marriage is or should be recognized as the union of one man and one woman; (2) Sexual relations are properly reserved to such a marriage; or (3) Male (man) and female (woman) refer to distinct and immutable biological sexes that are determinable by anatomy and genetics by the time of birth. (b) Discriminatory Action Defined. As used in subsection (a), a discriminatory action means any action taken by the State to: (1) Alter in any way the tax treatment of, or cause any tax, penalty, or payment to be assessed against, or deny, delay, revoke, or otherwise make unavailable an exemption from taxation of any person referred to in subsection (a); (2) Apply or cause to be applied, a fine, penalty, or payment assessed against such person; (3) Disallow, deny, or otherwise make unavailable a deduction for state tax purposes of any charitable contribution made to or by such person; (4) Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any state grant, contract, subcontract, cooperative agreement, guarantee, loan, scholarship, diploma, grade, recognition, license, certification, accreditation, employment, or other similar benefit, position, or status from or to such person; (5) Withhold, reduce, exclude, terminate, or otherwise make unavailable or deny any entitlement or benefit under a state benefit program, including admission to, equal treatment in, or eligibility for a degree from an educational program, from or to such person; (6) Withhold, reduce, exclude, terminate or otherwise make unavailable or deny access or an entitlement to state property, facilities, educational institutions, speech fora (including traditional, limited, and nonpublic fora), or charitable fundraising campaigns from or to such person; or (7) Investigate or initiate an investigation, claim, or administrative proceeding of such person, if that person would not otherwise be subject to such action. (c) Accreditation, Licensure, Certification. The State shall consider accredited, licensed, or certified any person that would otherwise be accredited, licensed, or certified, respectively, for any purposes under state law but for a determination against such person wholly or partially on the basis that the person believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction described in subsection (a). § -3 Judicial Relief. (a) Cause of Action. A person may assert a violation of this Act as a claim or defense in any judicial or administrative proceeding and obtain compensatory damages, injunctive relief, declaratory relief, or any other appropriate relief. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under the laws of the State. (b) Administrative Remedies Not Required. Notwithstanding any other provision of law, an action under this section may be commenced, and relief may be granted, in a court of the State without regard to whether the person commencing the action has sought or exhausted available administrative remedies. (c) Attorneys’ Fees. In any action or proceeding to enforce a provision of this Act, a prevailing party who establishes a violation of this Act shall be entitled to recover reasonable attorneys’ fees and costs. (d) Authority of the State to Enforce This Act. The Attorney General may bring an action for injunctive or declaratory relief against the State to enforce compliance with this Act. Nothing in this subsection shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General or the State, acting under any law other than this subsection, to institute or intervene in any proceeding. § -4 Rules of Construction. (a) Provision of Benefits and Services. Nothing in this Act shall be construed to prevent the State from providing, either directly or through an individual or entity not seeking protection under this Act, any benefit or service authorized under state law. (b) No Preemption, Repeal, or Narrow Construction. The protection of free exercise of religious beliefs and moral convictions afforded by this Act are in addition to the protections provided under federal law, state law, and the state and federal constitutions. Nothing in this Act shall be construed to preempt or repeal any state or local law that is equally or more protective of free exercise of religious beliefs or moral convictions, and nothing in this Act shall be construed to narrow the meaning or application of any state or local law protecting free exercise of religious beliefs or moral convictions. (c) Severability. If any provision of this Act or any application of such provision to any particular person or circumstance is held to be invalid under law, the remainder of this Act and the application of its provisions to any other person or circumstance shall not be affected." 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. This Act shall take effect upon its approval. INTRODUCED BY: _____________________________ Report Title: Religious Freedom; Government Nondiscrimination Act. Description: Protects the free exercise of religious beliefs and moral convictions by prohibiting the State from taking any discriminatory action against a person based on the person's sincerely held religious belief or moral conviction. Provides a cause of action for a violation of the Act. The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.