HOUSE OF REPRESENTATIVES             H.C.R. NO.171         
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                     HOUSE  CONCURRENT
                        RESOLUTION
  REQUESTING A STUDY OF THE IMPACT OF A RELIGIOUS FREEDOM
    RESTORATION ACT IN HAWAII.



 1        WHEREAS, this nation was founded, in large part, by people
 2   who sought the liberty to practice their religions without
 3   impediment, and the right to free exercise of religion is
 4   contained in the very first amendment to the United States
 5   Constitution, and has been described as America's "first
 6   freedom"; and
 7   
 8        WHEREAS, the "Free Exercise" clause has been the source of
 9   substantial protection for believers and non-believers over the
10   years, as embodied in cases such as Sherbert v. Verner; and
11   
12        WHEREAS, another United States Supreme Court case,
13   Employment Division v. Smith seemed to take back some of the
14   religious protection in the Sherbert case, in which the Court
15   declined to use the compelling state interest/substantial
16   infringement balancing test of Sherbert; and
17   
18        WHEREAS, in response to this apparent cutting-back of
19   religious protection, in 1993 Congress enacted the Religious
20   Freedom Restoration Act, which applied a standard quite similar
21   to Sherbert, holding that government could not place a
22   substantial burden on a person's exercise of religion unless
23   the government could demonstrate a compelling state interest
24   and the law is the least restrictive means of furthering that
25   interest; and
26   
27        WHEREAS, however, the 1997 Supreme Court case of Boerne v.
28   Flores held that the Religious Freedom Restoration Act was
29   unconstitutional as it exceeded Congress' power, as Congress
30   relied on the Fourteenth Amendment to the Constitution in
31   imposing its requirements on the states, but that the
32   enforcement right stated in section 5 of the Fourteenth
33   Amendment is only remedial, and cannot establish new
34   substantive rights; and
35   
36        WHEREAS, the same impediments to the Religious Freedom
37   Restoration Act do not exist at the state level, and the State
38   is free to adopt this type of legislation for itself as it is

 
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 1   not relying on the Fourteenth Amendment for implementation, but
 2   on the State's own constitutional guarantees of religious
 3   freedom as set forth in article I, section 4 of the state
 4   constitution, and its constitutional guarantee of equal
 5   protection under the law, established in article I, section 5;
 6   and
 7   
 8        WHEREAS, Hawaii is a remarkably tolerant state and
 9   adoption of its own version of the Religious Freedom
10   Restoration Act would comport with its general social mores;
11   now, therefore,
12   
13        BE IT RESOLVED by the House of Representatives of the
14   Twentieth Legislature of the State of Hawaii, Regular Session
15   of 1999, the Senate concurring, that the Legislative Reference
16   Bureau is requested to study the impact of adopting a state
17   version of the federal Religious Freedom Restoration Act; and
18   
19        BE IT FURTHER RESOLVED that the Bureau is requested to
20   consider the impact on the use of illegal substances on an
21   employer's premises, exemption from zoning restrictions, and
22   other impacts on employer-employee relations; and
23   
24        BE IT FURTHER RESOLVED that the Legislative Reference
25   Bureau is requested to report its findings and conclusions to
26   the Legislature no later than twenty days before the convening
27   of the Regular Session of 2000; and
28   
29        BE IT FURTHER RESOLVED that a certified copy of this
30   Concurrent Resolution be transmitted to the Director of the
31   Legislative Reference Bureau.
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35                         OFFERED BY:  ____________________________